Unfitness to Plead Consultation Responses - Law Commission ...

Accused found to
have cognitive
abilities but low/no
decision making
capacity due to
mental disorder not
accounted for in
Pritchard criteria.
Unable to effectively
participate in part or
fully due to mental
disorders not
considered by the
Prtichard test
Fig 2:
Pritchard Test: Problem of
Effective Participation in a
criminal trial
Stages of
a criminal
trial.
Historically prior to 1964, we agree with the CP finding that the numbers of accused who
relied on unfitness to plead were lower due to the second procedural stage: where the
court finds an accused under a disability, the jury must determine whether or not the
accused did the act or omission charged. The reason for this was the court had the
ability once the accused was found unfit to plead, to detain the accused indefinitely
under an Hospital Order. Whilst the legislative changes of 1964, 1991 and 2004 and the
introduction of section 4A hearing have assisted the position, they have in no way
afforded the vulnerable accused the kind of robust protection it requires from the legal
system.
Unfitness to plead touches at the heart of not only the dual keystone principles of the
rule of law and due process, but also the relatively modern principle of effective
participation enshrined in human rights law.
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