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Reforming fitness to plead and stand trial legislation in England and Wales

  • Nuwan Galappathie (a1) and Angela Shaw (a2)

Summary

The legal decision on whether a defendant can fairly take part in a criminal trial in England and Wales is currently based on the leading case of R v Pritchard (1836), which despite subsequent case law updates does not embrace the concept of mental capacity or effectively identify defendants who are unable to meaningfully participate. Further to an extensive consultation process, the Law Commission published recommendations for reform in 2016, with a proposed new test of capacity to participate effectively in a trial and detailed suggestions for statutory reform of court procedures for managing defendants found unable to participate. Here we review the proposals and consider practical implications and suggestions regarding their implementation.

LEARNING OBJECTIVES

After reading this article you will be able to:

  • appreciate the current problems with the law on fitness to plead in England and Wales
  • understand the proposed test of capacity to participate effectively in a trial
  • understand the proposed changes to the procedures available when a defendant is found unable to participate.

DECLARATION OF INTEREST

None.

Copyright

Corresponding author

Correspondence Dr Nuwan Galappathie, St Andrew's Healthcare, Dogpool Lane, Stirchley, Birmingham B30 2XR, UK. Email: ngalappathie@standrew.co.uk

References

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Brown, P, Stahl, D, Appiah-Kusi, E, et al. (2018) Fitness to plead: development and validation of a standardised assessment instrument. PLoS ONE, 13(4): e0194332.
Galappathie, N, Khan, ST, Hussain, A (2017) Civil and forensic patients in secure psychiatric settings: a comparison. BJPsych Bulletin, 41: 156–9.
Gibbs, P (2017) Defendants on Video – Conveyor Belt Justice or a Revolution in Access? Transform Justice.
Law Commission (2010) Unfitness to Plead (Consultation Paper No. 197). TSO (The Stationery Office).
Law Commission (2014) Unfitness to Plead: An Issues Paper. TSO (The Stationery Office).
Law Commission (2016) Unfitness to Plead. Volume 2: Draft Legislation (Law Com No. 364). TSO (The Stationery Office).
Mackay, RD, Kearns, G (2000) An upturn in unfitness to plead? Disability in relation to the trial under the 1991 Act. Criminal Law Review, (7): 532–8.
Mackay, R (2011) Unfitness to plead: some observations on the Law Commission's consultation paper. Criminal Law Review, (6): 433–45.
Murray, BJ (2017) Mental capacity: different models and their controversies. BJPsych Advances, 23: 366–74.
Rogers, TP, Blackwood, N, Farnham, F, et al. (2009) Reformulating fitness to plead: a qualitative study. Journal of Forensic Psychiatry and Psychology, 20: 815–34.
Shah, A (2012) Making fitness to plead fit for purpose. International Journal of Criminology and Sociology, 1: 176–97.
Criminal Practice Directions 2015 [2015] EWCA Crim 1567.
JD v R [2013] EWCA Crim 465.
Marcantonio v R [2016] EWCA Crim 14.
Practice Direction (Criminal Proceedings: Further Directions) [2007] 1 WLR 1790.
R v Berry [1977] 6 WLUK 141.
R v John M [2003] EWCA Crim 3452.
R v Moyle [2008] EWCA Crim 3059, [2009] Crim LR 586 at 27.
R v Pritchard (1836) 7 C & P 303, 173 ER 135.
R v Robertson [1968] 1 WLR 1767.
R(P) v West London Youth Court [2005] EWHC 2583 (Admin).
SC v United Kingdom [2004] 6 WLUK 252.

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Reforming fitness to plead and stand trial legislation in England and Wales

  • Nuwan Galappathie (a1) and Angela Shaw (a2)
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