Unfitness to Plead

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Making the law fair for victims and defendants when a defendant can’t engage with the criminal process. We await a final government response.

Download the report

Download the draft bill

Download the report summary

The problem

The law relating to unfitness to plead addresses what should happen when a defendant who faces prosecution is unable to engage with the process because of their mental or physical condition.

The law aims to balance the rights of the vulnerable defendant with the interests of those affected by an alleged offence and the need to protect the public.

However, the current law in this area is outdated, inconsistently applied and can lead to unfairness.

The current rules for defining “unfitness” were formulated in 1836 and don’t take any account of modern medical understandings of capacity. This   can mean that justice is not being done.

The project

In our Tenth Programme of Law Reform in 2008 we stated an intention to examine the law relating to unfitness to plead.

The unfitness to plead project looks at how defendants who lack sufficient ability to participate meaningfully in trial should be dealt with in the criminal courts.

The aim of the law in this area is to balance the rights of the vulnerable defendant who cannot fairly be tried with the interests of those affected by the alleged offence and the need to protect the public.

We published a Consultation Paper on unfitness to plead (CP197) in October 2010.

We were unable to work further on the project between January 2011 and early 2013 because we were required to deploy our resources on other projects.

During that period there were significant changes to the criminal justice system. In light of these changes, we published an Issues Paper in May 2014.

In our report published on 13 January 2016, we make recommendations for reform of the whole unfitness to plead framework. Our recommendations aim to modernise the law, making it fair, effective and accessible.

Our recommendations

Recommendations include:

  • a modernised test for unfitness to plead, bringing it into line with today’s psychiatric and psychological thinking. The new test would look at the defendant’s decision-making capacity and ask whether the defendant is able to participate effectively in their trial.
  • that the unfitness to plead procedure be extended to the magistrates’ and youth courts.
  • a statutory entitlement for defendants to have assistance from an intermediary where they need that help in order to have a fair trial.
  • Training for judges and lawyers to help them identify which defendants need support and what kind of support would be most effective.

Under the existing rules, where a defendant is not fit to plead, there must be a hearing of the facts, even if the court already knows that the disposals available to it would not be appropriate for the defendant.

The Commission is making three main recommendations in this area.

  • The judge should be able to decide not to have a hearing, if more suitable provision can be made for the defendant outside the criminal justice system.
  • An alternative finding hearing should replace the current trial of the facts. The new hearing would more closely mirror a full trial, giving defendants better opportunity to challenge the prosecution. And allowing victims to give a full account of their experience.
  • Where the allegations are proved, the courts should be able to impose a more effective order for supervision. This could include constructive support for the vulnerable individual and more restrictive measures to ensure public protection.


We published our report on 13 January 2016. We received the Government’s interim response on 30 June 2016.

The Government accepted a majority of our recommendations in their final response to the report. 

We have a linked project on the related problem of Insanity and Automatism.

Documents and downloads

Project details

Area of law

Criminal law


Professor David Ormerod QC