Status: This consultation is now closed. We are analysing responses
Given the vulnerability of the mentally ill and the increasing frequency with which they are coming into contact with the criminal justice system, modern criminal law should be informed by modern science, and in particular by modern psychiatric thinking.
The problems with the existing law on unfitness to plead are numerous. The current test for determining fitness to plead dates from 1836 when the science of psychiatry was in its infancy. The law developed in a piecemeal way and independently of developments under the European Convention on Human Rights on “effective participation” as part of the right to a fair trial.
The legal test for fitness to plead needs to be reconsidered and should be contrasted with the much wider test contained in the Mental Capacity Act 2005.
Other important questions to be answered include: what is the exact scope of a trial of the facts following a finding of unfitness to plead? What issues can be raised by the defendant, in particular "defences" of accident, mistake and self-defence?
The project
We published our consultation paper on 27 October 2010, which contains our provisional proposals for comprehensive reform of the law on unfitness to plead in England and Wales.
Our recommendations focus on a new legal test for determining whether a person is unfit to plead and reform of the section 4A hearing, which follows a finding that an accused is unfit to plead. The proposals seek to bring the criminal law into line with modern psychiatric understanding and the approach of the civil law to capacity – both in the civil common law and under the Mental Capacity Act 2005.
The project draws on relevant empirical evidence and comparative jurisdictions in an attempt to identify better and more up to date legal tests and rules for determining fitness to plead and the subsequent procedure for the examination of the facts.
We have a separate project on the defence of insanity.
