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Fitness to Plead guidance is outdated and requires modernisation

Current rules for deciding whether a defendant is unfit to participate in a criminal trial are out of date, misunderstood and inconsistently applied, according to the Law Commission.

The test around fitness to plead needs revising in order to bring it into line with today’s psychiatric and psychological thinking, a report by the Law Commission says.

Professor David Ormerod QC, Law Commissioner for criminal law and procedure, said: “It is in the interests of justice that defendants who can play a meaningful and effective part in their trial should have the opportunity for a full trial.

“The current rules for defining “unfitness” were formulated in 1836, and how the courts deal with vulnerable defendants who are unfit fails to achieve just outcomes.

“Our reforms would modernise the law to bring unfitness to plead into line with current psychiatric thinking, making it more effective, accessible and fair for vulnerable defendants and victims, and providing greater protection for the public.

“It is extraordinary that the unfitness to plead procedure is not currently available in the magistrates’ and youth courts, where some of the most vulnerable defendants in the criminal justice system can be found. Extending our reforms throughout the courts system would ensure that young people are no longer treated less fairly than adults,” he added.

A small number of defendants will never participate effectively

Defendants may be unfit to plead for a variety of reasons, including difficulties resulting from mental health problems, learning disabilities, developmental disorder or delay, a communication impairment or some other cause or combination of causes.

The Law Commission report says that a full trial is best for the defendant as well as those affected by an offence and society more generally. Removing any defendant from that full trial process should only be undertaken “as a last resort” and the decision to adopt alternative procedures should be made with great caution and only where it is in the best interests of the defendant, because he or she lacks the capacity to participate effectively in his or her trial.

Every effort should be made to afford a defendant whose capacity may be in doubt adjustments to the proceedings to enable them to participate in the full criminal process, and to maintain that capacity for the whole of the process. However, the report acknowledges that a very small number of defendants will never have the capacity to participate effectively in a trial.

Currently, three or more expert reports are prepared usually by psychiatrists or psychologists before a defendant is found unfit to plead. However the assessment process of defendants is time-consuming and can often lead to substantial delays, causing uncertainty and anxiety to complainants, witnesses and the defendant.

The Law Commission states that arrangements can be made to streamline this process, saving time and resources, without compromising the robustness or fairness of the outcome.

Removing disadvantage

For many individuals who are unfit to plead, the low level of severity of the original allegation and the arrangements which can be made in the community, without the court’s intervention, meaning that further action by a criminal court is unnecessary.

“We therefore recommend that diversion of such individuals out of the criminal justice system, once they have been found to lack capacity for trial, should be available where the court is satisfied that such an approach is in the interests of justice,” says the report.

Presently, the alternative procedures do not require the jury to consider what was in the mind of the person at the time of the alleged offence. In addition, the ability of an individual who is unfit to plead to rely on common defences, such as self-defence, accident or mistake, is significantly restricted which places the unfit individual at a “substantial disadvantage” to a defendant facing the same allegation in full trial.

The report therefore recommends removing this disadvantage and introducing procedures which assess the involvement in the alleged offending of an individual who lacks capacity as fully as possible in the circumstances. This brings the alternative procedures closer to the full trial process, but still retains the protection of the individual from conviction.

The Law Commission also recommends that on the conclusion of alternative procedures, the court should have at its disposal effective support and assistance to an individual who lacks capacity, so that future offending is avoided. The disposals must also provide robust protection for the public where that is necessary. The report also highlights that currently the supervision order is the only community disposal available to the courts and lacks constructive elements to support the supervised.

The report highlights that any of the conditions which give rise to unfitness to plead are liable to fluctuate and therefore it is possible that an individual who was previously unable to participate effectively in trial might recover, or gain, that capacity after the court process has come to an end.

The Law Commission recommends that a wider power should be available for the prosecution to resume full trial proceedings against a recovered individual, and that the individual should also have the right to apply for resumption of the prosecution where he or she wishes to clear his or her name.

The full report with all the Law Commission’s recommendations is available here.


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