Unfit to plead

the term does not just cover the issue of the defendant being fit to enter a plea but also if he has the capacity to undergo a trial.

The term 'unfit to plead' does not only cover the actual issue of the defendant being fit to enter a plea but also if he has the capacity to undergo a trial.


The question that needs to be resolved here is whether the defendant is so mentally ill that he or she is unable to understand the charge against them and as a result is not able to prepare a defence. In these circumstances the defendant can properly be considered to be unable to plead in accordance with the provisions of Section 4 of Criminal Procedure (Insanity) Act 1964 as amended. Under modern law the decision as to whether the defendant is fit to plead is made by a judge not a jury (Section 24 of the Domestic Violence, Crime and Victims Act 2004). In the event that the judge finds that the defendant is unfit a jury is asked to decide whether the defendant committed the act or made the omission charged against them (Section 4A of the 1964 Act).



The nature of the procedure was well illustrated by the case of Regina v. Antoine (2001) where the defendant, aged 16, and another youth savagely murdered a 15 year old victim in what appeared to be a sacrifice to the devil. In a hearing under the Criminal Procedure (Insanity) Act 1964 he was found to be unfit to plead to murder because of his mental state. The jury found that the defendant had committed the act of murder. It was also determined that it is not necessary for the jury to be satisfied as to the mental element of the crime. Presumably this is because the very nature of the defence case is that ordinarily the question of whether the defendant had the requisite mens rea would be tested as part of any criminal trial which would include any account and defence mounted by the defendant if they were fit to assist in the preparation of any defence.

Lord Hutton in R v Antoine [2001] said "The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea........'


The issue of the defendant's mental state can be raised by the prosecution, defence or a judge. The judge will be assisted in this matter by the written or oral evidence of two or more registered medical practitioners (doctors). At least one of the doctors must be properly approved under Section 12 of the Mental Health Act 1983.The defendant's disability is considered with reference to the Pritchard criteria. The test used in Rex v. Pritchard [1836] is still used today despite being outdated. The issue of fitness to plead was the subject of review by the Law Commission Consultation Paper 197 "Unfitness to Plead" - published 27th October 2010.

As at the 13 January 2016 a further report was published by the Law Commission making recommendations for reform of the whole unfitness to plead framework. their recommendations aim to modernise the law, making it fair, effective and accessible.


If the defendant is found to be fit the trial will go ahead in the normal way. If the defendant is found to be 'unfit to plead' a trial of the facts will take place and a jury will determine whether the defendant 'did the act or made the omission' of which he has been accused. No account of the mental aspect will be taken into account it will simply be a matter of whether or not the defendant struck the blow or took the object.


If the jury find that the defendant did commit the act or omission following the judge's decision that the defendant is unfit to plead, the judge may make one of the following orders:


  • a Hospital Order under section 37 Mental Health Act 1983 (with a restriction order under section 41 if necessary);

  • a Supervision Order;
  • an absolute discharge.

Unfitness to Plead | Law Commission.

Rewrite rules governing fitness to stand trial, says Law Commission.

Mentally disordered offenders - Crown Prosecution Service.

Margaret Moran 'unfit to plead' over MP expenses charges | Politics ...


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