Unfitness to Plead and the Insanity Defence

Background

Given the vulnerability of the mentally ill and the increasing frequency with which they are coming into contact with the criminal justice system, modern criminal law should be informed by modern science, and in particular by modern psychiatric thinking.

The problems with the existing law are many and serious. The current test for determining fitness to plead dates from 1836 and the current rules for determining legal insanity date from 1842. In those days, the science of psychiatry was in its infancy.

The application of these antiquated rules is becoming increasingly difficult and artificial. For example, the key concept of "disease of the mind" has no agreed psychiatric meaning. As interpreted by the courts, it has even come to include conditions that are not mental disorders, such as epilepsy and diabetes. The stringent test of capacity for the purposes of fitness to plead also needs to be reconsidered and should be contrasted with the much wider test contained in the Mental Capacity Act 2005.

Other important questions to be answered include: what is the exact scope of a trial of the facts following a finding of unfitness to plead? What issues can be raised by the defendant, in particular "defences" of accident, mistake and self-defence? What are the relationships between insanity, automatism and diminished responsibility?

The project will draw on relevant empirical evidence and comparative jurisdictions in an attempt to identify better and more up to date legal tests and rules for determining fitness to plead and legal insanity.

For more information, contact the criminal law team or go to the team page.

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