Fitness to plead: criteria, assessment and procedure

What is fitness to plead?

Fitness to plead asks whether a defendant can take part in their trial now. The Criminal Procedure (Insanity) Act 1964 calls an unfit defendant 'under a disability' that bars their trial (s4(1)).

In England and Wales, fitness to plead and fitness to stand trial are the same question. A finding of unfitness suspends the prosecution rather than ending it (MoJ, 2022). It says nothing about their state of mind at the offence, which is for insanity or diminished responsibility.

Fitness to plead criteria: Pritchard

The test comes from Pritchard (1836), restated in M (John) (2003). The defendant must be able to do all six of these, and if any one is beyond them, they're unfit (Marcantonio, 2016):

• The charges. Understand what they're charged with.
• The plea. Decide whether to plead guilty or not.
• Jurors. Exercise their right to challenge a juror.
• Their lawyers. Instruct their solicitor and counsel.
• The trial. Follow the course of the proceedings.
• Evidence. Give evidence in their own defence.

The court applies the test to the trial they actually face: its complexity, its length and the number of parties (Marcantonio, 2016). Pritchard also warned that a general ability to communicate on ordinary matters isn't enough.

Who decides fitness to plead?

• The judge, without a jury, since 2005 (1964 Act s4(5)).
• On medical evidence from at least two doctors, one s12 approved, in writing or in person (s4(6)).
• Raised by anyone. Usually the defence raises it, but the prosecution or the judge can (s4(1)).
• Standard of proof. The balance of probabilities if the defence raises it, beyond reasonable doubt if the prosecution does (Marcantonio, 2016).
• Timing. It's decided as soon as it arises. The judge can postpone it until the opening of the defence case, so the jury can acquit first (s4(2) to (4)).

Agreement between psychiatrists isn't enough. Unless unfitness is clear, the court must examine the evidence rigorously and reach its own conclusion (Walls, 2011, quoted in Marcantonio).

How to assess fitness to plead

1. Read the charge and the case papers first, so you know what this trial will involve (Code 22.10).
2. Explain who you are, who asked for the report, and the limits of confidentiality.
3. Assess mental state and cognition, and get collateral history from GP, psychiatric and prison records (Code 22.12).
4. Take each Pritchard limb in turn. Ask open questions about this case, not about trials in general.
5. Test what helps. Does simpler language, a written summary or a break make a difference?
6. Give your view on fitness, with reasons for each limb, and state any qualification (CrimPR r19.4). Don't speculate about guilt or innocence (Code 22.20).

Adjustments first

Plenty of people with a serious mental illness are fit, especially with the right support. A trial of the facts takes away very significant rights: the defendant doesn't give evidence, and their instructions are limited. So courts should consider an intermediary, or other ways to accommodate them, before deciding they're unfit (Walls, 2011).

What doesn't make someone unfit

• Amnesia for the offence. Podola (1960), a case of hysterical amnesia, settled that.
• Acting against their own interests, on its own.
• Being unwell. Fitness isn't the same as being well. Ask whether the illness stops them doing one of the six things.
• A diagnosis. No diagnosis makes someone unfit by itself. What counts is its effect on the six abilities.

If they're unfit: the trial of the facts

A jury then decides only whether they did the act or made the omission charged. The court appoints someone to put the case for the defence (1964 Act s4A). If the jury isn't satisfied, it acquits.

A finding that they did the act isn't a conviction. It doesn't rule out a full trial if they later become fit (R v H, 2003, cited in MoJ, 2022).

Disposals after a finding of unfitness

• A hospital order, with or without restrictions. The court doesn't need a bed offer, because the managers must admit, but it's good practice to contact the named hospital (s5A(1); Code 22.11).
• A supervision order for up to 2 years, under a social worker or probation officer. It can require outpatient treatment under a doctor (Schedule 1A).
• An absolute discharge, where that's most suitable (s5(3A)).
• Murder. If a hospital order is possible, it must be made with restrictions (s5(3)).

While the court decides, it can use remands under ss35 and 36 or an interim hospital order (s5A(2)).

If they become fit again

MHCS asks the RC about fitness at least once a year (MoJ, 2022). If a patient on a s37/41 after unfitness can now be tried, the Justice Secretary can remit them for trial after consulting the RC (s5A(4)).

The CPS decides whether to resume. The hospital and restriction orders then end, which MoJ reads as the moment the court makes its next order with the patient present, so plan any Part 2 detention first. Remission isn't available after any other disposal, such as an unrestricted hospital order, a supervision order or an absolute discharge (s5A(4); MoJ, 2022).

Fitness to plead in the magistrates' court

The 1964 Act procedure, with its jury trial of the facts, is for the Crown Court. In a magistrates' court the route is s37(3) of the MHA. If the court is satisfied the person did the act, it can make a hospital order or guardianship order without convicting them.

Reform

The Law Commission's 2016 report proposed a test of capacity to participate effectively in a trial, with a separate test of capacity to plead guilty. It hasn't been enacted, so Pritchard still applies (Marcantonio, 2016).

A worked example

Take each limb. He partly understands the charge. Instructing his lawyers and following the trial look beyond him, even with breaks and simple language, because he can't hold on to the information. That points to unfit. If the judge agrees, a jury decides whether he did the act, and the court considers a hospital order, a supervision order or an absolute discharge.