The law on unfitness to plead is concerned with whether or not an accused is able to stand trial and, if not, the procedure that should be used to deal with that accused. If at any time during the Court process the defendant’s competency to stand trial is questioned a full and detailed assessment should be sought. An example would be a defendant who as a result of very low intellectual ability is unable to follow the process of his or her trial. In England and Wales, the test known as the Pritchard test is applied by the courts when deciding whether a defendant is unfit to plead, however the test is outdated and inconsistently applied.
Following a consultation paper in 2010 and an issues paper in 2014, on 13 January 2016 the Law Commission published its report on unfitness to plead. The Law Commission proposed that the new test should centre upon the defendant’s decision making capacity and capacity for effective participation in their trial. This brings the new test in line with modern Court proceedings and the test for capacity in civil proceedings which focuses on decision making abilities (Mental Capacity Act 2005).
Up until recently the determination of a defendant’s lack of capacity relied on the evidence of two or more registered medical practitioners in general such practitioners are psychiatrists. The new legislation has recognised that other professionals are suited for this role. In particular psychologists are routinely involved in assessing, formulating and treating mood and cognitive disturbances and consideration of the assistance required for defendants to participate effectively in the trial process is often more within the expertise of a psychologist than a psychiatrist. Consequently, the Law Commission has stipulated that one of the experts must be a registered medical practitioner duly approved under section 12 of the Mental Health Act and the second expert can be either a registered medical practitioner, registered psychologist or an individual having a qualification appearing on a list of appropriate disciplines approved by the Department of Health.
A psychological assessment will usually include a detailed evaluation of the defendant’s mental health, cognitive functioning, verbal reasoning and comprehension skills, attention and concentration, short term memory, decision making abilities, suggestibility and any other relevant psychological factors. This information will be used in order to form an opinion about whether the defendant is deemed to be fit or unfit to plead and/or stand trial but more importantly the expert can make recommendations to the Court which will allow a vulnerable defendant to fully participate in the proceedings. At the heart of the Law Commissions’ recommendations is the belief that there should be a full trial wherever possible. This is because only such trials engage all the fair trial processes and guarantees for those involved. A departure from a full trial should be a last resort that is only taken when it is in the best interests of the defendant. In order to fulfil this criteria reasonable adjustments to the criminal process should be made.
Dr Sharna Lewis BSc Hons, MSc, DClinPsy, CPsychol
Clinical Psychologist and Expert Witness (Midlands Area
Sharna has considerable experience of conducting Court reports in matters of personal injury, clinical negligence, mental capacity, assessment of cognitive functioning, fitness to plead/stand trial. She is registered with the BPS and HCPC.