Fitness to Plead and Stand Trial

The Law

Fitness to plead is ultimately determined by the court and there is a presumption of fitness. Though medical evidence is usually involved, it is not necessary (R v Ghulam (Habib) [2009] EWCA Crim 2285). Concerns about fitness can be raised by the defence, prosecution or the judge. The burden of proof for the prosecution is beyond reasonable doubt; for the defence, it is on the balance of probabilities.

In the Crown Court, the approach is set out in s4 and 4A Criminal Procedure (Insanity) Act 1964, but the test of fitness remains based on common law. Assessment of fitness to plead and stand trial is based on the Pritchard Criteria, derived from R v Pritchard (1836) 7 C&P 303:

“There are three points to be inquired into — First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence — to know that he might challenge any of you to whom he may object — and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough, that he may have a general capacity of communicating on ordinary matters.”

This has been operationalized in M (John) [2003] EWCA Crim 3452 as to include the following aspects:

(1) understanding the charges;

(2) deciding whether to plead guilty or not;

(3) exercising his right to challenge jurors;

(4) instructing solicitors and counsel;

“This means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers’ questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give. It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable. Many defendants put forward cases and explanations which are implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for.”

(5) following the course of the proceedings;

“This means that the defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel. Few defendants will be able to remember at the end of a court session all the points that may have occurred to them about what has been said during that session. It is, therefore, quite normal for the defendant to be provided with pencil and paper so that he can jot down notes and pass them to his lawyers either as and when he writes them, or at the end of the session. (Lawyers normally prefer not to be bombarded with too many notes while they are trying to concentrate on the evidence). There is also no reason why the defendant’s solicitor’s representative should not be permitted to sit beside him in court to help with the note taking process.”

“It is not necessary that the defendant’s comments on the evidence and counsels’ speeches should be valid or helpful to his lawyers or helpful to his case. It often happens that a defendant fails to see what is or is not a good point to make in his defence. The important thing is that he should be able to make whatever comments he wishes.”

(6) giving evidence in his own defence.

“This means that the defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable. Many defendants and other witnesses give evidence which is either in whole or in parts implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for. Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him. He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period.”

It may be ‘reasonable adjustments’ are required to enable the defendant to be fit.

If the defendant is found unfit, there is a ‘trial of the facts’ to determine whether the defendant did the acts or omissions alleged, in accordance with the procedure set out in s.4A of the Criminal Procedure (Insanity) Act 1964. Following this, the court’s powers of disposal are limited to a hospital/guardianship order, a supervision order, or an absolute discharge.

The hospital order with restriction pauses the criminal prosecution until such time that the defendant is fit to plead. In this circumstance, the Secretary of State has a power to remit the case back to court for a criminal trial.

The law in the Magistrates’ Court is significantly less clear, but is based on the idea of ‘effective participation’. In practice, laying out the defendant’s abilities by reference to the Pritchard criteria, is likely to be sufficiently helpful for the Magistrates’ Court to reach a conclusion.

Case Law and Key Judgements

Case law has found the threshold for unfitness to be high. However, as with any case law, the findings are dependent on the specifics of the case. In practice, where fitness to plead is doubtful but a defendant is likely to recover fitness after a period of treatment, the court may adjourn to provide the defendant with an opportunity to regain fitness.

Being deluded as to the facts of the offence or for delusional thinking to lead to unwise challenges or actions is insufficient: R v Robertson [1968] 52 Cr App R 690

“On the evidence here [he] appears to have had a complete understanding of the legal proceedings and all that is involved and, although he suffers from delusions which at any moment might interfere with a proper action on his part, that is not a matter which should deprive him of his right of being tried.”

Being deluded as to the legal proceedings or punishment that might be inflicted is insufficient: R v Moyle [2008] EWCA Crim 3059

Moyle sought to appeal his conviction for murder based on a lack of fitness to plead. He had a diagnosis of paranoid schizophrenia with a chronic delusional system. This expanded to the offence itself; he acknowledged he punched the victim, but claimed the murder had been done by someone else (variously, spirits, the Queen of Sheba, or someone else). It also affected his view of the legal proceedings and likely outcome; he thought it was all ‘set up’, that the court and jury were possessed, and his imprisonment was preordained by his persecutors. These were found to be insufficient grounds for a finding of unfitness, and the appeal was dismissed.

“Even if, at times during the trial, the appellant was not acting in his own best interests, in the evidence and instructions he gave, that does not, in itself, create, or contribute, to a finding of unfitness to plead.”

It is necessary to consider the circumstances of each case, including the likely course of proceedings and the nature and complexity of issues that may arise: R v Marcantonio & R v Chitolie [2016] EWCA Crim 14; R v Thomas (Dean) [2020] EWCA Crim 117