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Modern approach needed for ‘out of date’ fitness-to-plead test

Court's approach to vulnerable defendants fails to achieve just outcomes, says law commissioner

13 January 2016

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A new test is needed to establish whether defendants are fit to stand trial, the Law Commission has recommended.

The modernised approach would assess the defendant's decision-making ability and whether they could participate effectively in their trial, a marked shift from the current test that prioritises intellectual ability.

Where defendants have difficulties, the commission wants a statutory entitlement to assistance from an intermediary, which would result in a fairer trial.

Judges and other legal practitioners would receive training to help them identify which defendants need support and what kind would be most effective.

For defendants who are unable to join their trial, the commission has recommended further measures to increase fairness.

Currently where a defendant is not fit to plead, the facts are heard even if the court already knows that the disposals available to it would be inappropriate.

The commission wants to give judges the power to decide not to have a hearing if a more suitable provision can be made outside the criminal justice system.

Moreover, an alternative finding hearing should replace the existing trial. The hearing would mirror a full trial, giving defendants a better opportunity to challenge the prosecution and allowing victims to give a full account of their experience.

Should the allegations be proved, the court could impose a supervision order, including support for the vulnerable individual and more restrictive measures to ensure public safety.

Professor David Ormerod QC, law commissioner for criminal law and procedure, commented it was in the interests of justice for defendants to play a meaningful part in their 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,' he said.

'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.'

The commission has also recommended that the reformed unfitness to plead procedure be extended to the magistrates' and youth courts.

'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,' added Ormerod.

'Extending our reforms throughout the courts system would ensure that young people are no longer treated less fairly than adults.'

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Procedures Courts & Judiciary