Usually, when someone is accused of a criminal offence, they are asked to “plead”, which means they reply with either “guilty” or “not guilty” when a clerk of the court puts the offence to them (known as “arraignment”). However, the court considers some people incapable of entering pleas or standing trial. We explore what this means.
What is the “test” of unfitness?
- Whether the accused will be able to understand the course of the proceedings, so they can make a proper defence.
- The court must consider not only someone’s ability to answer a charge against them and reply to it, but also if they can:
- exercise their right to challenge a juror;
- understand details of the evidence, as it is presented;
- give their instructions to legal advisers; and
- give evidence in person.
- [as set out in the leading case of R v Pritchard (1836) 7 C & P 303]
- The defendant’s legal representative must also consider if the person can “give instructions” (make a choice or tell their lawyer how to handle their case).
How does the court decide if a defendant is not fit to plead or stand trial?
- A judgment will be made by considering:
- the evidence of two medical practitioners who have assessed the defendant’s mental state;
- the facilities available in court to assist the defendant, such as an intermediary or special measures; and
- the complexity of the case.
- [The Criminal Procedure (Insanity) Act 1964 s. 4(6)]
When should the issue be dealt with?
- The court will begin careful case management as soon as it has been raised (by either the prosecution or the defence).
- If raised by the defence, they must prove that it is more likely than not that the accused is unfit. If raised by the prosecution, they must prove it beyond reasonable doubt.
- The court must decide whether to postpone its decision until just before the defence case starts at trial, or determine the accused is “unfit” immediately.
- Once a finding is made of “unfitness”, the court must consider who is best placed to legally represent the accused.
- [The Criminal Procedure Rules 25.10 (3)(a)]
If a defendant is found unfit to plead and stand trial, what happens next?
- A jury is sworn in to determine whether the accused “did the act or made the omission charged against him” (rather than whether they are “guilty”).
- This is known as “a trial of the facts” and the purpose is to make sure the case the prosecution brings is tested thoroughly. Other normal trial procedure rules will apply.
If the jury finds the accused “did the act” or “made the omission” as charged, what happens then?
- The court may make one of the following orders:
- a hospital order;
- a supervision order; or
- an order for the accused’s absolute discharge (the defendant is released without any punishment, supervision or hospital treatment).
- It is for the court to decide on the length of any order, if given.
- Before the court can make a supervision order, it must have evidence the necessary arrangements for supervision are in place and available.
Kathryn is a paralegal in our Crime Department.
Contact Lewis Nedas Law using our enquiries page or by telephone 020 7387 2032.