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Unfitness to plead - do we need a new test?

Law Commission | Law Commission

5 min read Partner content

A new test to determine who is fit for trial

How do we determine whether someone accused of a crime is physically and mentally fit to participate in a criminal trial? And what do we do if they are not? These are the questions being examined today as the Law Commission brings together leading experts in criminal law and mental health to exchange views at a consultation event at Leeds University.
The law on unfitness to plead sets out what should happen when a defendant is unable to play a meaningful part in their criminal trial because they have serious mental health or communication problems. It aims to strike a balance between supporting vulnerable defendants and ensuring that the rights of victims and the security of the general public are protected.
A defendant who is found ‘unfit’ is not tried in the usual way. The jury considers, at a ‘trial of the facts’, whether the defendant did the act they have been charged with. If they did, the Court can put measures in place to provide supervision and support for the defendant and protect the public.
The Law Commission is consulting on suggested reforms that would bring the test for unfitness up to date and improve the procedures for dealing with unfit defendants. The reforms aim to ensure that the few defendants who are not fit for trial are identified accurately and all others are tried in the usual way but with help, where necessary. Today’s event will bring together legal practitioners, forensic psychiatrists and other mental health experts, leading academics and victims’ representatives to discuss these ideas, which build on proposals made by the Commission in an earlier consultation.
At present, the test for unfitness to plead, which was formulated in 1836, focuses on the defendant’s intellectual abilities and their ability to understand the processes of a criminal trial. But disorders of mood and other aspects of mental impairment can also interfere with a defendant’s ability to engage in a rational way with proceedings. The Commission is asking:
• should the test also assess whether the accused is able to make the decisions necessary to play a meaningful and effective part in their trial, and
• should the nature of the particular trial faced by the defendant also be considered when applying the test?
The existing test for unfitness does not consider whether a vulnerable defendant could be fit for trial if they were given special help. To support the principle that an accused should be tried in the usual way whenever possible, the Commission is proposing that the reformed test should include consideration of special measures to support effective participation. It is also asking whether these measures should include giving defendants a legal right to support from a registered intermediary, where necessary, to help them understand and engage with the trial process. Currently, a judge can find a defendant unfit only if two doctors, one of whom is a senior psychiatrist, agree that the defendant satisfies the test. The Commission is exploring whether this requirement should be relaxed so that the court can rely on the opinion of a wider group of experts, including, for example, psychologists. Such a move would increase the number of experts available to the court, potentially reducing both delays and costs.
The Commission’s proposals for reform of the trial of the facts, and the orders courts can then make to protect the public, aim to ensure the unfit defendant’s rights are preserved wherever possible whilst retaining the court’s powers to order hospitalisation or supervision of a defendant where necessary. The consultation examines options for streamlining these processes and making supervision powers more effective. It asks:
• could the trial of facts could be heard by a judge alone rather than a jury,
• could doctors’ civil powers to detain and treat patients be used to meet public protection concerns rather than relying on the courts, and
• how can supervision orders for unfit defendants be made more effective?
In its first consultation in 2010, the Commission asked whether a reformed fitness to plead procedure should also be applied in the magistrates’ and youth courts. Consultees gave strong support for such reform and stressed, in particular, the inadequacy of the current arrangements for dealing with the many young defendants who have mental health and communication problems. The current consultation explores how this reform might be achieved, asking in particular:
• should the reformed Crown Court test for unfitness apply unchanged in the magistrates’ and youth courts,
• should there be automatic screening of defendants under the age of 14, to identify those with participation difficulties, and
• should supervision orders for youths be specially tailored to meet the needs of unfit young defendants?
Professor David Ormerod QC, the Law Commissioner leading on the project, says: “The rules governing fitness to plead need to be updated and brought into line with modern psychiatric thinking.
“The Law Commission is proposing reforms that will help the law achieve a balance between ensuring justice for the accused and securing protection for the public. The measures we are suggesting will make sure that those who are fit to participate in a criminal trial will undergo a full trial, with help if necessary. They will divert the vulnerable who are unfit for trial from the court system, ensuring they get the support they need to avoid further involvement with the police and the courts, and help to steer young people away from life-long criminal careers.”
The Commission seeks responses by 25 July 2014. The consultation is supported by an issues paper, “Unfitness to Plead”, which can be found on the Law Commission website at:

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