Fitness to Plead

It has been said that the peculiarities of the fitness to plead regime can cause practitioners to question their own sanity.  This article seeks to summarise the fundamentals.

The Law – a good place to start

The starting point is the Criminal Procedure (Insanity) Act 1964 – notably section 4 (which governs the procedure to determine a finding of unfitness) and section 4A (finding as to whether or not a defendant did the act alleged).

Those that love our procedure rules will know that CrimPR rule 25.10 sets out in headline form the steps that a Court will follow once the issue of fitness has been raised.

It is for the judge alone to determine whether a defendant is unfit to plead, applying the essential principles set out in the case of Pritchard (1836) 7 Car. &P. 303 (reaffirmed in R v Podola (1959) 43 Cr.App R 220 at 238), which have become known as the ‘Pritchard Criteria’.

In summary, a person is unfit to plead if he/she is unable to do any one of the following:-

  • To understand the charges
  • To decide whether to plead guilty or not
  • To exercise his right to challenge jurors
  • To follow the course of proceedings
  • To give evidence in his own defence
  • To instruct his legal representatives
  • It is for the trial judge to explain the approach to each of these matters.

The recent case of Rex v Vinnell [2024] EWCA Crim 1294 provides further guidance on the approach to fitness. In this case two defence experts who saw the Appellant in the autumn of 2022 found him unfit to stand trial. The Crown’s expert took the contrary view and determined that he was fit. The Crown’s expert saw the Appellant again in September 2023, shortly before the trial, and determined that his position had deteriorated such that the expert now had concerns about the Appellant’s ability to give evidence and in particular his ability to withstand cross-examination. He expressed the view that modifications including shortened days and other special measures would be ineffective in enabling the Appellant to follow proceedings and give evidence, albeit the expert conceded that the real difficulty for the Appellant would arise in cross-examination.

The trial judge decided that the best course was modify the trial proceedings such as to prohibit the Crown from cross-examining the Appellant. In what he acknowledged to be an unusual course, he determined that the Appellant was fit to stand trial and that the modification in prohibiting cross-examination ensured the fairness of the trial.

The Court of Appeal respectfully disagreed with the ‘out of the box’ course that the trial judge had adopted. This was not a case where the doctor was suggesting that it was merely undesirable for the appellant to be cross examined, but rather that due to his lack of mental capacity, the appellant was unfit to be cross examined. On that basis the Court of Appeal found the Appellant was unfit and substituted the findings of guilt for a finding that he did the acts alleged.

[NB There is some wonderfully technical discussion in that judgment as to the exact procedure that the Court of Appeal should follow upon overturning a finding of fitness by the lower court, which you may want to explore at your own leisure.]

The Procedure

The judge can only reach a decision that a defendant is unfit to plead if there is evidence supporting that conclusion from at least 2 registered medical practitioners, at least one of whom must be approved under s.12 MHA 1983 (NB: clinical psychologists are not registered medical practitioners).

s.8 of the Criminal Procedure (Insanity) 1964 Act (as amended by the Medical Act 1983 (Amendment) Order 2002 (SI 2002/3155); the Domestic Violence, Crime and Victims Act 2004, s.58(1), and Sch.10, para.3; and the Health and Social Care Act 2012, s.38(5)(a)): A registered medical practitioner  means a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise.

No oral evidence is in fact required and a judge is entitled to decide the issue on written evidence, although commonly unless it is entirely clear cut, a judge may well wish to hear from at least one expert. The burden lies on the party that has raised the issue. If, as is usual, the issue is raised by the defence, the standard is the balance of probabilities.

Timing of the Application

The issue should normally be determined as soon as it arises, and once sufficient expert evidence has been obtained. However, there are two instances where it may be desirable to postpone the determination:

  1. Where it is apparent from expert evidence that the defendant may recover within a reasonable period of time (see remand for treatment under s.36 MHA).
  2. CrimPR 25.10 also includes the power to postpone the exercise of a determination of unfitness until immediately before the opening of the defence case. It will be in the interests of the accused to postpone a determination to the end of the Prosecution case in circumstances where, for example, the evidence is weak and there is a reasonable prospect that a submission of no case to answer may succeed.

Trial of the Act - Mens Rea v Actus Reus

Prosecution Case

The Prosecution must prove that the defendant did the act or made the omission charged (actus reus). They must therefore prove the external elements. These are:

  • The conduct elements of an offence (what the defendant did, or failed to do)
  • The consequence elements of an offence (the result of the defendant’s actions)
  • The circumstance elements (other facts required to establish the offence – e.g. lack of consent)
  • The Prosecution do not have to prove the fault element (mens rea)

Where appropriate, a Court can hold a trial of the facts for an unfit defendant alongside co-defendants who are not unfit

However, as described by the Court of Appeal in in R v Goldsmith [2024] EWCA Crim 780, there is not always a ‘bright line’ between the mental and external elements of an offence. In Goldsmith the Court considered what the Crown was required to prove in a trial of the act in relation to possession of a controlled drug with intent to supply. This case provides a really useful distillation of the case law on this point and it is really worth a read. It is fair to say the findings of the Court of Appeal on this topic have not always been…intuitive.

In summary, the Court in Goldsmith held that the Crown was required to prove possession, including the mental element of knowledge of the existence of the item in his/her possession. However, whilst one may think that it then seems logical to invite the jury to look at intent from the objective evidence available (for example, the quantity of drugs, the fact it was separated into lots of small wraps or text messages indicative of supply), in fact the Court of Appeal held that any enquiry into the defendant’s intent was not permissible even to the extent where objective evidence was available.

In other words, once possession as described above, was established then this was sufficient for a finding that the defendant did the act.

Defence Case

  • Defences which relate to the defendant’s mens rea are not available unless there is ‘objective evidence’ that raises the issue (for example use of force by the complainant which may give rise to the question of self-defence)
  • ‘Objective evidence’ could include: forensics, independent eye-witness evidence, CCTV
  • Perhaps counter intuitively, insanity is not available as a defence if a defendant is unfit to plead
  • The defendant’s interview is unlikely to be admissible unless clear that not suffering from the condition leading to unfitness at the relevant time and understood the caution
  • An unfit defendant may, in theory, give evidence, but it is highly unlikely ever to be appropriate

Disposals

The disposals upon a finding that the defendant did the act are contained within, and limited to, section 5(2) Criminal Procedure (Insanity) Act 1964.  They are:

  1. Hospital order (with or without a restriction order),
  2. Supervision order,
  3. Absolute discharge.

Of note, if the defendant is found to have done the act, then no restraining order or POCA proceedings can be imposed/initiated because it is not a conviction [see R v Chinegwundoh [2015] EWCA Crim 109 – para 21]

Bizarrely however, a restraining order upon acquittal is available to the Court.

Conclusion

For a salutary lesson in avoiding the pitfalls of fitness to plead, and a very helpful one-stop-shop of analysis of the caselaw, the case of R v Kamaladin Ismael [2024] EWCA Crim 301 is essential reading for all practitioners.