Unfitness to Plead

The issue of mental ill-health in criminal proceedings can lead to three different kinds of outcomes which would not otherwise be reached for a defendant who did not have a mental disorder.  I have previously written about two of them: insanity and  very specifically to charges of murder, a finding of diminished responsibility leading to an alternative conviction of manslaughter.

This post relates to the final issue: unfitness to plead and it is just a simple overview of the process about which more could be said —

If someone who has been charged with a criminal offence is to stand trial, they must be competent to understand the trial process and to instruct their solicitor.  Where doubts emerge about these issues, the question of unfitness to plead arises.  Where it is brought up, it is a matter for a jury to decide and they may not find someone unfit to plead unless supported by the evidence of at least two medical practitioners, one whom must be “duly approved”.

It may be raised in a trial by either the prosecution or the defence at any stage, but often it is raised at an early point in proceedings, before a trial and often leads to psychiatric evaluation.  The court may take advantage, if it deems fit, of the remand provisions of the Mental Health Act which allow patients to receive treatment and care whilst undergoing assessment for issues like unfitness to plead (or diminished responsibility).  Unfitness to plead is also seen being raised at the start of defence evidence, after the prosecution have put their case.

The Criminal Procedure (Insanity) Act 1964 governs this process, although you will be glad to know it was updated in 1991 by a Criminal Procedure (Insanity and Unfitness to Plead) Act.  Such an approach is the basis for similar considerations in many international jurisdictions like the Commonwealth and many of the United States and it allows the court to determine “unfitness” if one of four elements are satisfied, as laid down the case R v Pritchard [1836] –

  1. to comprehend the course of proceedings on the trial, so as to make a proper defence;
  2. to know that he might challenge any jurors to whom he may object;
  3. to comprehend the evidence; or
  4. to give proper instructions to his legal representatives.

Where these issues are raised in court, a different standard of proof applies, depending upon who raises it: the prosecution must prove beyond all reasonable doubt (the criminal standard of proof) that a defendant is unfit to plead whereas the defence must prove it only on the balance of probabilities (the civil standard).  It is the jury who must determine whether these thresholds have been cleared against the “Pritchard” criteria.


So what happens if someone is ruled unfit to plead or stand trial?  The amended Criminal Procedure (Insanity) Act provides, in section 4A, for a “trial of the facts”.  In other words, the court will adduce whether or not the defendant “did the act or made the omission charged”, irrespective of mental insight or disorder.

So for example, in the case of a defendant being charged with causing grievous bodily harm with intent, contrary to s18 of the Offences Against the Person Act 1861, a court normally occupying itself with whether or not a particular defendant caused a serious injury, by whatever means AND that they intended to cause that serious injury.

Following a ruling of unfitness to plead, they would be interested in establish whether or not the person (did the act or omission” by throwing a punch or using a weapon to cause the injury.  The extra “mental” element of the mens rea – whether or not they intended to cause serious injury – would not come into question because of the “unfitness” arising from a disability.  In such a case, it would then be available to the Court to make an order for the defendant’s admission to hospital (see Schedule 1 of the 1964 Act) or for their supervision and treatment (see Schedule 2).  In respect of Schedule 1 orders, these are, in effect, restricted hospital orders, as if made under s37/41 MHA.

Obviously, if it is not proved that the defendant “did the act or made the omission charged”, then they would be released from the custody of the court, although I have known cases where this is almost immediately followed by a Mental Health Act assessment by an AMHP and two DRs for admission to hospital under s2 or s3.  Indeed, it is sometimes the case that s2 or s3 has been applied before the hearing, in case of that outcome.


The Law Commission has been doing some public consultation work over the last few years on potential changes to the law on both unfitness to plead and insanity.  You will have noticed that the Pritchard case dates from the nineteenth century and the legislation was drafted in the 1960s, albeit partially revised in the 1990s.  There is a general sense that it is overdue for reform and the Law Commissions work should report during 2014.

In the meanwhile, this remains the law: defendants whose fitness to plead is questioned in court have a special procedure within the criminal courts to establish whether or not they are unfit and if so, how any potential vulnerabilities may be managed.  Someone who is found unfit and made subject to what amounts to a restricted hospital order are not convicted of the offence – it is a diversion from the criminal justice system, without conviction.

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.