Modernising the rules on unfitness to plead

A new test is needed to establish who is unfit to plead. The existing rules for deciding whether a defendant is unfit to participate in a criminal trial – and what the courts should do if they are not – are out of date, misunderstood and inconsistently applied.

Our new report sets out recommendations to modernise the test for unfitness to plead, bringing it into line with today’s psychiatric and psychological thinking. The new test would ask whether the defendant is able to participate effectively in their trial.

We are also recommending a series of measures to help defendants who have participation difficulties to engage effectively in their trial, including a statutory entitlement for defendants to assistance from an intermediary and training for judges and other legal practitioners.

We are also recommending:

  • fairer procedures for considering a criminal allegation where a defendant is unable to participate in a trial, and
  • extending the reformed unfitness to plead procedure to the magistrates’ and youth courts.

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.”