Unfitness to Plead

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

We published our report on 13 January 2016. We received the Government’s interim response on 30 June 2016 (available at http://data.parliament.uk/DepositedPapers/Files/DEP2016-0605/Mike_Penning_Government_interim_response_on_Unfitness_to_Plead.pdf) and await the Government's final response.

The law relating to unfitness to plead addresses what should happen when a defendant who faces criminal prosecution is unable to engage with the process because of their mental or physical condition. The law aims to balance the rights of the vulnerable defendant with the interests of those affected by an alleged offence and the need to protect the public. However, the current law in this area is outdated, inconsistently applied and can lead to unfairness.

In our report published on 13 January 2016, we make recommendations for reform of the whole unfitness to plead framework. Our recommendations aim to modernise the law, making it fair, effective and accessible.

Our starting point is that full and fair trial should be achieved wherever possible. We make recommendations to ensure that the normal trial process is adjusted wherever necessary to ensure that defendants can be tried in the normal way when that can fairly be achieved.

In order to reduce unnecessary costs and delays, our recommendations also include the streamlining of the clinical assessment process for defendants with participation difficulties,

We recommend a new legal test which will accurately identify those who are unable to participate effectively in their trial. Under our recommendations these defendants who lack capacity for trial will be dealt with in a reformed alternative hearing where all aspects of the allegation will be fairly scrutinised.

Under our reforms the judge will have more robust and effective options for dealing with defendants who lack capacity for trial. The court will be able to provide for more constructive support of the individual within the community, as well as having greater powers to monitor the progress of the individual under supervision and to impose restrictions where that is necessary to ensure public safety.

Significant concerns have been raised during the project about the current lack of an effective legal framework for addressing participation difficulties experienced by young defendants in the youth court. Our recommendations also introduce, for the first time, a statutory scheme for addressing unfitness to plead in the magistrates’ and youth courts, in line with that which we recommend for the Crown Court.

The consultation process

We published a Consultation Paper on unfitness to plead (“CP197”) in October 2010, in which we asked questions and advanced provisional proposals regarding reform of the test and the procedure for unfitness to plead. We received 55 written submissions from consultees in response. Those responses endorsed many aspects of our provisional proposals. They also raised fresh issues arising both out of our provisional proposals and in relation to the operation of aspects of the current law on unfitness to plead which consultees considered to be problematic

We were unable to work further on the project between January 2011 and early 2013 because we were required to deploy our resources on other projects. During that period there were significant changes to the criminal justice system. In light of these changes, we published an Issues Paper in May 2014. This document invited consultees to respond to a series of further questions which sought to refine our original proposals for reform and set out a more detailed framework for reform in the newer areas identified by consultees.

On 11 June 2014 we held a symposium at the School of Law, University of Leeds. The event was attended by over 100 experts in the field, including members of the judiciary, solicitors and barristers, academics, psychiatrists, psychologists, specialist nurses, intermediaries and representatives from government departments and interest groups.

There were 45 responses to the Issues Paper from a wide range of stakeholders. The majority were in favour of the approach taken in the Issues Paper.

We have also benefited from views expressed at conferences and specialist seminars, as well as from meetings with judges, legal practitioners, leading academics, clinicians, non-governmental organisations and members of interested government departments.

The recommendations we make in our report have therefore been refined by an iterative consultation process. The policy has been honed specifically to respond to the reduction of funding within the criminal justice system and the changing approach to vulnerability in the court system. The approach that we recommend has broad support from an extremely wide range of consultees.

Documents and downloads

Project details

Area of law

Criminal law


Professor David Ormerod QC