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).

Vulnerability, disability or communication difficulties do not necessarily mean that an individual is unfit to plead. For example, one of the provisional proposals suggested in the Law Commission consultation (provisional proposal 5) recognises the role that special measures and other reasonable adjustments can play in enhancing the decision making capacity of the defendant to undergo a trial and enter a plea. The findings of the Law Commission consultation are being further reviewed and are yet to be published.

While there is no specific procedure by which fitness to plead can be determined in the magistrates’ court, arrangements do exist under section 11 of the Powers of the Criminal Court Sentencing Act 2000, whereby the defendant’s mental state can be determined, with a view to enabling the court to deal with the accused under section 37 of the Mental Health Act 1983.

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