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A new test to determine who is fit for trial
How
do we determine whether someone accused of a crime is physically and mentally
fit to participate in a criminal trial? And what do we do if they are not?
These are the questions being examined today as the Law Commission brings
together leading experts in criminal law and mental health to exchange views at
a consultation
event at Leeds University.
The law on unfitness to plead sets out what should happen when a defendant is
unable to play a meaningful part in their criminal trial because they have
serious mental health or communication problems. It aims to strike a balance
between supporting vulnerable defendants and ensuring that the rights of
victims and the security of the general public are protected.
A defendant who is found ‘unfit’ is not tried in the usual way. The
jury considers, at a ‘trial of the facts’, whether the defendant
did the act they have been charged with. If they did, the Court can put
measures in place to provide supervision and support for the defendant and
protect the public.
The Law Commission is consulting on
suggested reforms that would bring the test for unfitness up to date and
improve the procedures for dealing with unfit defendants. The reforms aim to
ensure that the few defendants who are not fit for trial are identified
accurately and all others are tried in the usual way but with help, where
necessary. Today’s event will bring together legal practitioners,
forensic psychiatrists and other mental health experts, leading academics and
victims’ representatives to discuss these ideas, which build on proposals
made by the Commission in an earlier consultation.
At present, the test for unfitness to plead, which was formulated in 1836,
focuses on the defendant’s intellectual abilities and their ability to
understand the processes of a criminal trial. But disorders of mood and other
aspects of mental impairment can also interfere with a defendant’s
ability to engage in a rational way with proceedings. The Commission is
asking:
- should the test also assess whether the accused is able to make the decisions necessary to play a meaningful and effective part in their trial, and
- should the nature of the particular trial faced by the defendant also be considered when applying the test?
The
existing test for unfitness does not consider whether a vulnerable defendant
could be fit for trial if they were given special help. To support the
principle that an accused should be tried in the usual way whenever possible,
the Commission is proposing that the reformed test should include consideration
of special measures to support effective participation. It is also asking
whether these measures should include giving defendants a legal right to
support from a registered intermediary, where necessary, to help them
understand and engage with the trial process.
Currently, a judge can find a defendant unfit only if two doctors, one of whom
is a senior psychiatrist, agree that the defendant satisfies the test. The
Commission is exploring whether this requirement should be relaxed so that the
court can rely on the opinion of a wider group of experts, including, for
example, psychologists. Such a move would increase the number of experts
available to the court, potentially reducing both delays and costs.
The Commission’s proposals for reform of the trial of the facts, and the
orders courts can then make to protect the public, aim to ensure the unfit
defendant’s rights are preserved wherever possible whilst retaining the
court’s powers to order hospitalisation or supervision of a defendant
where necessary. The consultation examines options for streamlining these
processes and making supervision powers more effective. It
asks:
- could the trial of facts could be heard by a judge alone rather than a jury,
- could doctors’ civil powers to detain and treat patients be used to meet public protection concerns rather than relying on the courts, and
- how can supervision orders for unfit defendants be made more effective?
In its first consultation in 2010, the Commission asked whether a reformed fitness to plead procedure should also be applied in the magistrates’ and youth courts. Consultees gave strong support for such reform and stressed, in particular, the inadequacy of the current arrangements for dealing with the many young defendants who have mental health and communication problems. The current consultation explores how this reform might be achieved, asking in particular:
- should the reformed Crown Court test for unfitness apply unchanged in the magistrates’ and youth courts,
- should there be automatic screening of defendants under the age of 14, to identify those with participation difficulties, and
- should supervision orders for youths be specially tailored to meet the needs of unfit young defendants?
Professor David Ormerod QC, the Law Commissioner leading
on the project, says: “The rules governing fitness to plead need to be
updated and brought into line with modern psychiatric thinking.
“The Law Commission is proposing reforms that will help the law achieve a
balance between ensuring justice for the accused and securing protection for
the public. The measures we are suggesting will make sure that those who are
fit to participate in a criminal trial will undergo a full trial, with help if
necessary. They will divert the vulnerable who are unfit for trial from the
court system, ensuring they get the support they need to avoid further
involvement with the police and the courts, and help to steer young people away
from life-long criminal careers.”
The Commission seeks responses by 25 July 2014. The consultation is supported
by an issues paper, “Unfitness to Plead”, which can be
found on the Law Commission website at: www.lawcom.gov.uk.
Notes for editors
1. The Law Commission is a non-political independent body, set up by
Parliament in 1965 to keep all the law of England and Wales under review, and
to recommend reform where it is needed.
2. For more details on this project, visit www.lawcom.gov.uk
3. For all press queries please contact:
Phil Hodgson, Head of External Relations: 020 3334 3305
Jackie Samuel: 020 3334 3648
Email: communications@lawcommission.gsi.gov.uk