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25th February 2016

Fitness to Plead

What happens if someone with a mental disorder finds themselves facing criminal charges but their mental health means there is doubt about their ability to be subject to a criminal trial? I wanted to write about this topic following some new proposals from the Law Commission to replace the rather old-fashioned concept of unfitness to plead. So what are the old rules, and how should the new rules look to reflect changes in mental health law?

Failing the test

What this concept of fitness means is the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. If he or she doesn’t have capacity then they could be found guilty of something they didn’t do. So the courts have to deal with the case in another way to decide whether they did it, and if they did, then there are provisions under the Mental Health Act for someone to be detained in hospital.

One of the criticisms of the existing system is the test for unfitness to plead is out of date (it’s been in use since 1836) and difficult to apply consistently. The test is known by the case where it was established -the Pritchard Test. One of the criticisms is it is more of a test of intellectual ability, and that many people with mental illness slip through the net that this test provides.  This test (advised by doctors and ruled on by the judge) decides whether someone is unfit to plead if they cannot:

  • Understand what’s going on in the trial;
  • Realise that they can challenge any jurors place on the jury;
  • Comprehend the evidence;
  • Give proper instructions to their solicitor.

New rules for old

The Law Commission’s view is that this test should be replaced with something more in line with the Mental Capacity Act. So what would that test look like? Well it should incorporate the following:

  • Based more on the Mental Capacity Act test of capacity to make decisions. A trial involves a number of decisions to be made by a defendant so the test should allow for this;
  • Still allow where possible for a defendant to state whether they are guilty or not guilty;
  • Find a test that can assess whether someone can fully participate in a trial;
  • Use psychologists as well as doctors to apply the test.

The Law Commission have just published their final report on this project. We are now awaiting the Government’s response. You can read it at:

David Beckingham – QCS Expert Mental Health Contributor

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