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Fitness-to-plead court test out of date, says Law Commission


New tests should be introduced to assess whether a defendant facing criminal charges is mentally fit to stand trial, the Law Commission says.

Currently two doctors, including a psychiatrist, advise judges on a defendant’s fitness before a trial.

But the commission, an independent body that reviews laws in England and Wales, wants advice from psychologists to be allowed, along with wider testing.

The Ministry of Justice said it would carefully consider the recommendations.

The commission said existing rules to decide whether or not a defendant was mentally fit were “out of date, misunderstood and inconsistently applied”.

Shift in focus

It called for a “shift in focus” from the existing tests, which it said prioritised “intellectual ability”.

Tom Symonds, BBC home affairs correspondent, said the commission was concerned “too many defendants face criminal trials despite lacking the ability fully to take part, often because of poor mental health”.

Defendants should have a statutory entitlement to assistance to enable them to have a fair trial, the commission said.

Judges and other legal practitioners should receive training to help identify defendants who need support, it added.

Currently, if a judge decides a normal trial cannot go ahead, a so-called trial of the facts is held, in which a jury decides if the defendant is guilty.


However, the commission said the prosecution in such situations should also be required to prove the defendant intended to break the law.

It also wants judges to have the power not to hold a trial of the facts at all – if it is in the interests of justice.

Last year, former Labour MP Lord Janner was declared unfit to stand trial over allegations of child sexual abuse, which he had always denied.

The decision not to prosecute the peer – who died last month – because he had been suffering from dementia faced criticism.

Accessible and fair

Professor David Ormerod QC, law commissioner for criminal law and procedure, said it was “in the interests of justice” that defendants who can play a meaningful and effective part in their trial should have the opportunity for a full trial.

“Our reforms would modernise the law to bring unfitness to plead into line with current psychiatric thinking, making it more effective, accessible and fair for vulnerable defendants and victims, and providing greater protection for the public.”

He said it was “extraordinary” that unfitness to plead procedures were not currently available in magistrates’ and youth courts, “where some of the most vulnerable defendants in the criminal justice system can be found”.

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