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.
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.
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