Katie Forrest and Steve Williams of Forrest Williams

Unfit To Plead In Criminal Cases

There is a lot of discussion in the press at the moment about historic sex offences and individuals ‘escaping’ justice because they are not considered ‘Fit to plead’.

The test for Fitness to Plead is whether the defendant is suffering from a ‘disability’ and lawyers often refer to the ‘Pritchard’ test (coming from the 1836 case of R v Pritchard).  It can refer to any disability that would stop the defendant taking an effective part in a trial but must be one which cannot be rectified – for example, someone who doesn’t speak English would be ‘unfit to plead’, but this can be easily cured by providing an interpreter so would not satisfy the test.

The questions to be addressed include:

• Can the defendant understand the proceedings?
• Do they have the intellectual capacity to put forward a defence?
• Can they challenge a juror?
• Can they understand the evidence?
• Can they understand what is meant by pleading guilty or not guilty?
• Can they give instructions to their lawyer (tell them their side of the story and how to conduct the case)?

For a Court to hold that a defendant is unfit they must have the evidence of a minimum of two doctors, at least one of whom is approved under the Mental Health Act.

If the defendant is found fit to plead, then the matter proceeds as normal. But if the defendant is found unfit to plead, then there is a ‘trial of issue’. This is to decide if the defendant ‘did the act or omission’ alleged against him. The Prosecution put forward their evidence to the court and Jury as normal. But, because, inherent in the finding that the defendant is unfit, the defence have been unable to get an account from the defendant to be able to challenge the evidence there is a limit to what they can do. They will, as much as possible, take an active part in the proceedings to ensure that they are fair.

If the jury find that they are not sure that the defendant did the act, then that is the end of the matter and a ‘not guilty’ verdict entered. If the jury are sure that the defendant did the act, then the matter moves to the ‘disposal stage’.

The disposals available to the court are:

• Hospital Order (with or without restrictions)
• Supervision Order
• Absolute Discharge

The Judge will decide which is most appropriate in the case before him, with the exception of murder cases, in which case they must impose a Hospital Order with Restrictions.

For ease of explanation we have used a case study to help.

Lord Janner is one such high profile defendant where allegations have been made (but crucially not yet proven in a court of law). Initially, in April 2015, the Crown Prosecution Service decided that it was not in the Public Interest to proceed with the prosecution.

The CPS were very open in their initial decision not to prosecute, basing it upon medical evidence and explaining as follows (summarised):

• Lord Janner is suffering from a degenerative dementia which is rapidly becoming more severe. He requires continuous care both day and night.
• Four doctors assessed him and were in general agreement as to the level of cognitive ability.
• The doctors confirmed that the condition will only deteriorate and there is no prospect of recovery. Manipulation (“putting it on”) is “out of the question”.
• His evidence could not be relied upon in court and he could not have any meaningful engagement with the court process, and the court would find it impossible to proceed.
• There is no risk of future offending.

In effect they said that whilst they felt that the evidential test was met, it was not in the public interest to proceed with a prosecution because, given his mental state, it could not result in a criminal conviction or, by consequence, a custodial sentence. A prosecution would take at least a year to conclude (probably longer), and the trial would be many weeks, if not months, at great expense, if it went its full course.

This decision has now been overturned.

Lord Janner will now face a ‘Fitness to Plead’ hearing.  If it is held that he is unfit to plead then a case against him will go through the court system but it will not be a traditional prosecution as one would expect in that it will not result in a criminal conviction against him as he will not have been offered the opportunity to put forward a defence against the allegations – and the right to defend oneself against an allegation is a fundamental principle of the UK Legal System.

If an individual close to you is being investigated for, or has been charged with, an offence and you believe that they may be ‘unfit to plead’ then give the Forrest Williams Team a call on 001623 397200 and we would be happy to discuss this with you further.