Sketch by Isobel Williams, R v Jogee,

Sketch by Isobel Williams, R v Jogee,

Nearly a month after Lord Janner’s death, the Labour Peer at the center of allegations of historical child abuse, the Law Commission has published a report looking into the legal system’s provisions around fitness to plead.The law reform body recommended that the ‘antiquated’ regulations that govern when a defendant is fit to stand trial are replaced by a simpler test that assesses their decision-making capacity.

Though the report does not directly refer to Janner’s case, it does say that the procedure for assessing whether a defendant is fit to plead dates back to a common law case called Pritchard in 1836 which also involved a defendant with a disability. Currently, if a judge decides a normal trial cannot go ahead on the basis of unfitness to plead, a ‘trial of the facts’ is held. This is where a jury would decides if the defendant is guilty.

The Law Commission says that the existing test focuses too heavily on intellectual abilities and fails to take into account aspects of mental illness. Some have claimed that other conditions might exist which interfere with the defendant’s capacity to engage in the trial process.

The Commission has said that the prosecution in such situations should also be required to prove the defendant intended to break the law. It also wants judges to have the power not to hold a trial of the facts at all – if it is in the interests of justice.

Professor David Ormerod QC, law commissioner for criminal law and procedure, said:

‘Our reforms would modernise the law to bring unfitness to plead into line with current psychiatric thinking, making it more effective, accessible and fair for vulnerable defendants and victims, and providing greater protection for the public.’

Tom Symonds, BBC home affairs correspondent, said the commission was concerned ‘too many defendants face criminal trials despite lacking the ability fully to take part, often because of poor mental health’. The commission has also recommended that the reformed unfitness to plead procedure be extended to the magistrates’ and youth courts.

Professor Ormerod said that it was ‘extraordinary that the unfitness to plead procedure is not currently available in the magistrates’ and youth courts, where some of the most vulnerable defendants in the criminal justice system can be found’.


Author: Alex Cisneros

Alex Cisneros is a barrister practising out of No5 Chambers. He specialises in public law

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  • UndoInjustice January 13, 2016 8:58 pm

    Hi Alex, You’ve aroused my curiosity. If a victim of an assault suffers concussion during that assault and his assailant dies (no fatal injury) should that said victim be charged with murder? Is the said victim capable of intent? Does this affect ‘fitness to plead”? Sorry, but your article has generated many questions. Hope you don’t mind.

  • Christopher Lennon January 14, 2016 10:08 am

    “Currently, if a judge decides a normal trial cannot go ahead on the basis of unfitness to plead, a ‘trial of the facts’ is held. This is where a jury would decides if the defendant is guilty.”

    No; that would be a trial by jury, of a defendant fit to plead.

    A ‘trial of the facts’ is a mockery and a denial of natural justice, as both sides cannot be heard. It should have no place in our legal justice system

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