Unfitness to plead in England and Wales: historical development and contemporary dilemmas

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Abstract

Fitness to plead refers to a criminal defendant’s ability to participate at trial. The purpose of fitness to plead laws is to protect the rights of vulnerable individuals who are unable to defend themselves in court and to preserve natural justice in the legal system, while balancing the needs to see justice served and protection of the public. Early legal systems treated mentally disordered defendants with leniency, but over time those found unfit to plead have been subjected to indefinite incarceration, breaching their right to liberty while protecting their right to a fair trial. Conversely, the threshold for being found unfit is high and there are concerns that many unfit defendants are being unfairly subjected to trial. The approaches to balancing the competing demands have changed over time and led to confusing and contradictory practices. In order to better understand how and why the current problems have come to exist, this paper analyses the historical development of the legal framework for fitness to plead from Medieval England to the turn of the twenty-first century. It isolates core dilemmas: firstly, what is the normative standard of fitness to plead and does the current test for determining fitness adequately reflect this standard; secondly, should fitness to plead be disability-neutral or does unfitness require the presence of a psychiatric diagnosis; finally, how should the courts deal with those found unfit to plead, including insuring against the deprivation of liberty of innocents while ensuring the public are adequately protected.
Original languageEnglish
Pages (from-to)187-196
Number of pages10
JournalMedicine, Science and the Law
Volume59
Issue number3
Early online date15 Jun 2019
DOIs
Publication statusPublished - 1 Jul 2019

Keywords

  • Expert witness
  • fitness to plead
  • forensic psychiatry
  • human rights
  • mental-health law
  • mentally disordered offenders

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