Summary:

• The right to a fair trial for everyone charged with a criminal offence is enshrined in the criminal courts of England and Wales. Defendants have a number of minimum rights which have been further strengthened through case law.
• Defendants should be supported, as necessary, to understand what is happening in court, and to participate in proceedings; and guidance exists.
• Vulnerability, disability or communication difficulties do not mean that an individual is unable to participate effectively in proceedings or to enter a plea. Reasonable adjustments should be made to enhance decision-making capacity.
• The Mental Capacity Act states that an individual’s mental capacity should be assumed unless it is demonstrated that they lack capacity. Mental capacity can be affected for a number of reasons; for example, because of a mental illness, brain injury, stroke or due to alcohol or drugs. In these situations, mental capacity may be slightly reduced or severely reduced, and may be reduced for a short period of time or be longer lasting. The mental capacity of people with a learning disability is unlikely to change very much unless they are also affected for other reasons – including those shown above. For most people, their mental capacity can be enhanced though the use of reasonable adjustments; and this is a requirement of the Equality Act.
• If you are concerned about a defendant’s ability to participate in proceedings or about their fitness to plead, you should ask your legal adviser for advice.