If you are deemed unfit to plead, there will be a trial of facts instead. This is when a jury decides whether or not you committed the act, but you cannot be found guilty. Instead, you can be given a hospital order, a supervision order or an absolute discharge.
Defence solicitors – England & Wales
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What does it mean if you’re unfit to plead?
When you commit a criminal offence and your case goes to court, you must enter a plea. In England and Wales, you can either plead guilty or not guilty. Sometimes, however, the person accused of the offence (known as the defendant) is considered unfit to plead.
If you are unfit to plead, it means that you do not have the capacity to stand trial due to a disability. This disability must be such that you cannot understand the evidence or give evidence yourself.
Who is considered unfit to plead?
According to the law in England and Wales, you can only be found unfit to stand trial if you are ‘under a disability’. This is quite a broad definition. Someone with epilepsy may be deemed disabled. However, that does not mean that they are unfit to defend themselves in a court of law.
To narrow the definition of ‘disability’, a legal test was set in 1836, and it is still in use to this day. In the context of standing trial, a defendant is considered to be under a disability if any of the following apply at the time of trial (as opposed to at the time of the offence):
The defendant cannot…
- Instruct a solicitor or counsel
- Plead to the charge
- Challenge jurors
- Understand the evidence
- Give evidence himself
The Law Commission is calling for this test to be reformed. Even if this does happen, the focus will still be on the defendant’s decision-making capacity. Therefore, the onus is very much on the defendant’s health, and whether or not they have the ability to make decisions and communicate those decisions.
It is worth noting that a defendant who is, by societal standards, considered ‘highly abnormal’ is not deemed to be under a disability. This was made clear in the case of R v Berry (1997). Also, a defendant is not under a disability if they fail to act in their best interests – for example, by failing to instruct a solicitor to represent them.
Is unfit to plead the same as insanity?
No, being unfit to plead is not the same as pleading insanity or diminished responsibility. A defendant is unfit to plead if they are unable to participate in their trial for health reasons. This decision is based on the defendant’s health at the time of trial. Insanity, or diminished responsibility, is when the defendant suffered from an abnormality of the mind at the time of the alleged offence. This absolves the defendant of blame, either totally or partially.
Who decides if a defendant is unfit to plead?
A judge decides whether a defendant is unfit to plead. This decision is made following a fitness hearing, also known as a section 4 hearing. The judge’s decision is based on information from two medical experts. The medical experts need not necessarily agree with each other; one may think the defendant unfit to plead, whereas the other may not. The judge can choose who to side with.
The fitness hearing may have been prompted by the defendant’s solicitor, or another party who is concerned that the defendant is unfit to stand trial. If a trial is already underway, a fitness hearing must take place before a verdict is returned.
Can the judge change their mind?
The judge can change their mind in the future, however. Whatever decision is made, the judge is under an obligation to continually review the defendant’s fitness to stand trial. If there is any change of circumstance, another fitness hearing should take place.
For instance, it could be that while the defendant was originally considered fit to plead, their condition has since deteriorated to such an extent that the decision needs to be reviewed. Or, vice versa. It could be that the defendant has undergone treatment since being considered unfit to plead, meaning they now have the capacity to stand trial. If so, the defendant must be formally charged once again and a full trial organised. If a defendant is subsequently convicted, they can pursue an appeal, on the basis that the judged should have found them unfit to plead.
What happens if a defendant is declared unfit to plead?
If the judge declares that the defendant is unfit to plead, then a trial cannot take place. If a trial is already underway, it must be abandoned immediately. A trial of facts will then take place instead.
What is a trial of fact?
A trial of facts is used to determine whether or not someone committed an act, or made an omission. It is not like a trial because the accused cannot be found ‘guilty’. This would be unfair, as the defendant has not had the chance to defend themselves.
The court will appoint an advocate to put forward the defence evidence. This may or may not be the solicitor/barrister who was originally representing the defendant. The defendant can be asked to give evidence if they are able, but only as a witness. At the end of the process, the jury must decide: did the unfit defendant commit the act, yes or no?
Trial of fact – acquitted
If the jury decides that the unfit defendant did not participate in the crime, then they will be acquitted. This means the defendant is free from criminal charges and can be released from custody. In reality, the individual may be retained in a health setting, if they have been considered unfit to plead.
What are the possible outcomes after a trial of fact?
As mentioned above, the defendant can be acquitted after a trial of fact. Or, the jury may decide that the defendant committed the act. If so, the court has three sentencing options available:
- A hospital order (with or without a restriction order)
- A supervision order
- An absolute discharge
A hospital order
A hospital order is when the court orders the defendant to be detained in hospital for medical treatment. A restriction order may or may not be imposed at the same time. If the court does issue a restriction order, it places restrictions on the defendant and the medical practitioners responsible for their care. For example, the doctor may have to get permission from the Secretary of State before discharging the patient.
A supervision order
A supervision order is when the court orders the defendant to be supervised for a certain amount of time. This cannot be for more than two years.
An absolute discharge
An absolute discharge is when the court decides not to impose a penalty, despite a jury deciding that a defendant committed a crime. This happens when the offence was very minor, or the experience has been punishment enough.
Making an appeal
If an unfit defendant is found to have committed the act, they can pursue an appeal. If this appeal is successful, the verdict should be changed to an acquittal.
Also, if a defendant is considered fit to stand trial and is then found guilty, they can pursue an appeal on the basis that the judge erred in law during the fitness hearing. In other words, the guilty verdict should not apply because the defendant should never have been found fit to plead in the first place.
Get expert legal advice
The laws around fitness to plead are complex. As specialist criminal defence solicitors, we understand the rules and know what to do if there is any indication that one of our clients is unfit to stand trial. We can explain the implications to you and your loved ones, helping you through a fitness hearing and subsequent appeal if necessary.
Call us on 0333 009 6275. We are available to take your call 24 hours a day, 7 days a week.