Individuals who stand trial are required to be ‘capable of contributing to the whole process of his or her trial, starting with entering a plea’ (British Psychological Society, 2006:68).

The main criteria used in determining fitness to plead date from the 1836 case of R v Pritchard, and these are:

• capacity to plead with understanding
• ability to follow the proceedings
• knowing that a juror can be challenged
• ability to question the evidence
• ability to instruct counsel.

Concerns, however, have been raised about the broad and subjective criteria for fitness to plead. In 2008 the Law Commission launched a review of the current test, noting that the legal principles date back to 1836 when ‘the science of psychiatry was in its infancy’ and that ‘the application of these antiquated rules is becoming increasingly difficult and artificial’ (Law Commission, 2008).

The review was followed, in 2010, by a consultation paper ‘Unfitness to Plead’ in which the Law Commission noted that the ‘Pritchard’ criteria are:

...at best... not comprehensive and place a disproportionate emphasis on low intellectual ability [and] at worst... set too high a threshold for finding an accused to be unfit to plead and are inconsistent with the modern day trial process (Law Commission, consultation paper 197, 2010).

Following a further extensive period of consultation and review, the Law Commission published Unfitness to Plead (Law Com 364, 2016), which considers in detail how defendants who lack sufficient ability to participate meaningfully in a trial should be dealt with in the criminal courts.

The Report notes that defendants may be unfit to plead for a variety of reasons, including difficulties resulting from mental illness (longstanding or temporary), learning disability, communication impairment or other cause or combination of causes. 

At the heart of the Report's recommendations for reform is the belief that the normal criminal trial is the optimum process for a defendant, for victims and for society. Removing any defendant from the full trial process should, the Report says, only be undertaken as a last resort.; and the decision to adopt alternative procedures made with great caution. Every effort should be made to provide the reasonable adjustments necessary for the defendant to participate in the criminal process, and to maintain capacity throughout. The report acknowledges, however, that 'a very small number' of defendants will never have capacity to participate effectively in a trial. 

The Report addresses a range of concerns and makes key recommendations for reform; a draft Bill has been published, and a response from Government awaited. 

It will be of interest to note that while there is no specific procedure by which unfitness to plead can be determined in the magistrates' court, a key recommendation for reform made by the Report is to introduce 'into the magistrates' (including youth) courts procedures to address capacity to participate effectively in trial' (see Chapter 7: Effective participation in the magistrates' and youth courts).

If you are concerned about a defendant's fitness to plead you should seek advice from the legal adviser. 

“I understand that I have done something wrong, but I’m still unsure as to what that is. You also feel small when you are in court.” An offender with learning disabilities talking about his experience in court

“If you give people the opportunity to present their evidence and themselves in a way that is most advantageous to them, then you are actually speeding up the process of justice and you’re giving justice, in the broadest sense, the best opportunity to be done, and to be seen to be done, which is what we all want.” Robert Gill, magistrate