Following a consultation paper in 2010 and an issues paper in 2014, on 13 January 2016 the Law Commission published its report on unfitness to plead. In that report the Commission criticised the current test for being outdated, inadequate and inconsistent. As a result of these shortcomings, it held that the test was failing its purpose, namely to “accurately and efficiently identify those defendants who…have such impairments in their ability to participate in proceedings that they could not fairly be tried”. We identify the criticisms made by the Commission and its proposals for reform. 

Core belief

At the heart of the Commissions’ recommendations is the belief that there should be a full trial wherever possible. This is because only such trials engage all the fair trial processes and guarantees for those involved. A departure from a full trial should be a last resort that is only taken when it is in the best interests of the defendant. In order to enable a full trial, the report recommends reasonable adjustments to the criminal process so that vulnerable defendants can fully participate.

Criticisms and recommendations

In order to achieve this overarching goal, the Commission focuses on four key areas of criticism: the legal test for fitness to plead, alternative procedures, jurisdictional issues and post-Pritchard hearing powers.

The legal test

The fitness to plead test originates from the case of R v Pritchard (1836) 7 C&P 303 in which Alderson B stated:

“There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence – to know that he might challenge any of you [the jury] to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation”.

The Pritchard Test has been updated somewhat since 1836 by later authorities such as Davies (1853) 3 Car & Kir 328 and M (John) [2003] EWCA Crim 3452. In addition, some statutory procedures for testing unfitness to plead have been established, for example by the Criminal Procedure (Insanity) Act 1964.

The Commission argues that the test has become so complex that it is being, or has the potential to be, inconsistently applied by clinicians and the courts. It focuses too narrowly on the disability of a person and thus fails to consider other relevant concerns, such as a defendant’s decision-making capacity. Finally, the Commission argues that the application of the test is excessively demanding. Under the Criminal Procedure (Insanity) Act 1964, no court may make a determination without written or oral evidence from two or more registered medical practitioners, one of whom must be approved under s.12 of the Mental Health Act 1983. This, along with other administrative demands, causes delay and aggravates the anxiety felt by complainants, witnesses, and defendants alike.

Alternative procedures

The report recommends that where a defendant is found to lack the capacity to participate, a Crown Court should be provided with the opportunity to decide not to embark on alternative scrutinising procedures. This option is likely to be a particularly desirable means of dealing with cases involving defendants facing less serious charges or presenting a lower risk. It recommends this on the basis that a trial of the facts can be complex, demanding for all involved and provide limited means of disposal.

If the alternative procedure is pursued then the Commission recommends that a jury should be asked to consider the fault element in offences as fully as possible as they can in the circumstances. This would in their view bring it closer to the full trial process and its corresponding protections. At the end of this procedure, the report states that effective and robust community disposals must be available to the court so that support and assistance is provided to an individual in order to avoid future offending.

Jurisdictional issues

Presently, the fitness to plead test does not apply to the magistrates’ or youth courts. The only available protections are those contained under s37(3) of the Mental Health Act 1983 and s11(1) of the Powers of the Criminal Courts (Sentencing) Act 2000. These offer limited disposal opportunities and again, fail to focus on a defendant’s ability to participate in the criminal trial process. Suitable outcomes are therefore heavily restricted and the report recommends that a statutory framework for determining capacity to participate effectively in a trial should be made available in such cases.

Post-Pritchard hearing powers

The report also recommends that a power, subject to an ‘interests of justice’ test, is created so that the defendant and/or the prosecution can ask the court to resume proceedings if an individual regains capacity – a procedure currently only available to the prosecution in ‘restriction order’ cases.

Statutory framework

Amongst its other proposals, the Law Commission recommends establishing a clear and accessible statutory test for fitness to plead arguments. The test would be widened and make explicit provision for assessing decision-making and participation abilities. Alongside this test would be a separate and ancillary test for assessing capacity to plead guilty. The Commission states that the goal behind such reforms is that a “full and fair trial should be achieved wherever possible”.

Although its proposals have yet to be debated in full, the Law Commission has made a valuable contribution to the debate over how best to reach this important goal.