UK Law Commission: Summary Report - Unfitness to Plead

Dear ADJC Supporters,

Please find below the link to the UK Law Commission Report into Unfitness To Plead

Here are some general points from the summary:

Diversion out of the criminal process where appropriate

1.18 Following a finding by the court that a defendant lacks the capacity to participate effectively in the full criminal process, we take the view that the court should have the option not to embark on the alternative procedures for scrutinising the allegation. We have in mind, in particular, cases where a disposal11 imposed by the court is not necessary to protect the public, or to support the individual to avoid future concerning behaviour, and where it is concluded that it is not in the public interest for any further criminal hearing on the matter. We take this position because any procedure which protects the interests of the vulnerable individual, but appropriately scrutinises the allegation in order to justify imposing disposals on that individual, will inevitably be complex, and demanding of jurors, witnesses and defendants alike. In addition, such alternative procedures cannot result in conviction, because the defendant who cannot participate effectively is unable properly to defend him- or herself. As a result, the disposals available to the court are inevitably limited, and cannot involve punishment of the defendant.

1.19 For many individuals who are unfit to plead, the low level of seriousness of the original allegation and the arrangements which can be made in the community, without the court’s intervention, mean that further action by a criminal court is unnecessary. We therefore recommend that diversion of such individuals out of the criminal justice system, once they have been found to lack capacity for trial, should be available where the court is satisfied that such an approach is in the interests of justice. (We address this issue in Chapter 5 of our report). 10 Pritchard (1836) 7 C & P 303, 173 ER 135. 11 The term “disposal” is used currently to refer to the arrangements which can be ordered by a court to deal with those defendants who are unfit to plead, but against whom a finding has been made that he or she did the act, or made the omission, which amounted to the offence with which he or she was charged. These disposals can involve the defendant being treated in a hospital which is secure, supervised in the community or discharged entirely without further restrictions.

Effective and robust community disposals

1.21 We are concerned that the court should have available to it, on conclusion of the alternative procedures, disposals which deliver effective support and assistance to an individual who lacks capacity, so that future offending is avoided. The disposals must also provide robust protection for the public where that is necessary. At present the supervision order (which is the only community disposal available to the court) lacks constructive elements12 to support the supervised individual and offers little scope for managing an individual who has difficulty complying with such an order. (We make recommendations for enhancing both of these aspects of the supervision order in Chapter 6 of our report).

Identification of communication or participation difficulties, and of available mechanisms to adjust proceedings to facilitate effective participation

1.29 One of the most significant challenges for unfitness to plead procedures is the accurate and timely identification of those accused who are unfit to plead and those who require trial adjustments to be able to participate effectively in trial. This is especially difficult where the defendant is unrepresented or very young. Some legal professionals (judges and legal representatives) lack sufficient awareness of the conditions that may give rise to participation difficulties and an understanding of how best to address issues when they arise.

Improving identification of defendants with participation difficulties

1.35 We recommend that all members of the judiciary, and all legal practitioners, engaged in criminal proceedings should be required to receive training in understanding and identifying participation and communication difficulties, and to raise their awareness of the available mechanisms to adjust proceedings to facilitate effective participation. This would improve accurate and timely identification of participation difficulties, reducing delays to proceedings and the uncertainty and anxiety caused to complainants and witnesses where the defendant’s participation difficulties are raised at the last minute.

A test of capacity for effective participation in a trial

1.48 In line with the views of the majority of consultees, we recommend that the test be reformulated to prioritise effective participation. This would create a test in keeping with the modern court process and would accommodate advances in psychiatric and psychological thinking. It would remove the current and undue focus on intellectual abilities and provide a test which, our stakeholders confirm, would more appropriately identify those who are unable to engage with the trial process. A test explicitly incorporating decision-making capacity

1.49 The new test should explicitly incorporate decision-making capacity. This is a recommendation strongly supported by consultees who consider that the absence of decision-making capacity from the current test undermines its ability to identify all those who require the protections available under unfitness to plead procedures. A test which ensures that defendants are only diverted from the full trial process where absolutely necessary

1.50 We recommend that the test be applied in consideration of the context of the proceedings in which the defendant will be required to participate and taking into account all assistance available to the defendant. This will ensure that defendants are only diverted from the full trial process where absolutely necessary, so that full and fair trial is achieved wherever possible. Such an approach will enhance public protection through criminal prosecution and increase confidence in the criminal justice system on the part of the public and those affected by the offence.

Unduly restrictive evidential requirement

1.54 Expert evidence from registered psychologists is frequently required for the court to be able to determine an accused’s fitness to plead. However, currently an expert report from a psychologist cannot be one of the two reports required for the court to proceed with an unfitness determination. Not infrequently that means the court has to obtain a third expert report, adding extra expense and causing further delays to the proceedings. Those affected by such proceedings have described to us the distress and uncertainty that such delays cause.31 Delays in the preparation and service of expert reports

1.55 It remains important that the prosecution should be in a position to challenge the expert evidence relied upon by the defence, and to instruct their own experts where required. However, under the current arrangements this can lead to further delays and a proliferation of expert reports. In some cases the service of defence reports is delayed until the defence are in possession of two expert reports indicating unfitness, and only at that point are the prosecution able and willing to consider, and embark on, instructing their own expert.

Introducing a fair but robust fact-finding procedure

1.73 We recommend that the prosecution be required to prove all elements of the offence at the fact-finding hearing. There was resounding support amongst our consultees for such a recommendation. This approach would afford individuals who lack capacity the same opportunity to be acquitted as is enjoyed by defendants who have capacity, enabling them to engage all available full defences. This requirement would therefore address the disadvantage currently experienced by unfit individuals in the section 4A hearing, which many of our consultees considered to be objectionable.

Clear responsibility for supervising individuals who lack capacity

1.86 We recommend the removal of the option for probation officers, or providers of probation services, to supervise adults subject to an adverse finding.50 We do so, first, because our consultees made clear the inappropriateness of probation providers supervising individuals who have not been convicted of an offence. Secondly, we consider that social workers within local authorities are better placed to co-ordinate the socially supportive and health elements of the order 48 CJA 2003, s 327(4). The Domestic Violence, Crime and Victims Act 2004 (“DVCVA”) repealed CP(I)A, s 3, which provided for guardianship orders as an available disposal for unfit defendants. The CJA 2003 retains a reference to guardianship orders because some orders made before the DVCVA came into force may still be live. 49 CP(I)A, sch 1A para 2(2). 50 By “adverse finding” we mean that the offence was found proved against the individual who lacked capacity, or a special verdict was returned in respect of the offence, at the alternative finding procedure. 21 than probation providers. Finally, we take note of the changes within probation services referred to above.51

1.87 The position is somewhat different for those under 18 years of age. Youth Offending Teams are multi-disciplinary teams, which by law must include an individual with social work experience (or in Wales a social worker) and a person nominated by a local Clinical Commissioning group or Local Health Board.52 As a result, the necessary close links with clinical services are present in many YOTs, as is a range of experience beyond the more risk management approach of other probation providers. We therefore recommend that, for those under 18 years of age, the supervising officer be a social worker, or person with social work experience, selected either from the youth offending team, or children’s services, whichever appears to be more suitable for the particular individual.

1.88 We recommend the amendment of supervision orders so that local authorities are obliged to nominate a social worker to supervise individuals made subject to a supervision order. This will prevent public protection concerns arising in relation to individuals for whom supervising officers cannot be identified, and will facilitate the safe support in the community of individuals who are subject to an adverse finding.


1.103 Making available a wider range of disposals for individuals found to lack capacity is critical to improving procedures in the magistrates’ courts. Under our recommendations, the same disposals would be available in the magistrates’ (including youth) courts as in the Crown Court, save in four respects:

(1) For reasons of proportionality, the power to impose a hospital order would only be available where the original offence charged was an imprisonable matter. (2) The magistrates’ courts would not have the power to impose a restriction order. However, the magistrates’ courts would have the power to commit, or send, cases to the Crown Court if a restriction order is considered, potentially, to be appropriate (and the individual is aged 14 years or over). This is on the basis that a restriction order is a substantial deprivation of liberty beyond the normal disposal powers of the summary courts. (3) The magistrates’ courts would not have the power to impose a custodial term where an individual is found to be in breach of a supervision order. We consider that such a sanction should be exceptional, and ought not to be required in cases involving adults who lack capacity, where the court retained jurisdiction in respect of the original charge. (4) Where a child or young person has been found to be in breach of a supervision order, the youth court should have the power to impose a youth rehabilitation order with intensive supervision and surveillance. Such a sanction would only be available where the original offence charged was imprisonable and where notice had been given previously. We make this recommendation in consideration of the more serious cases which may be retained by the youth court, but taking the view that a custodial term is not appropriate in such cases.

Identifying capacity issues amongst young defendants

1.104 Early identification of young defendants with participation difficulties is key to ensuring suitable and effective procedures in the youth court. We therefore recommend in principle that all defendants appearing for the first time in the youth court should be screened for participation difficulties. We anticipate that this screening could be conducted by liaison and diversion practitioners based in the magistrates’ and youth courts, or clinicians operating as part of Youth Offending Teams. Should liaison and diversion services be extended to all areas of England and Wales,55 we consider that it will be practical to make this recommendation in respect of all defendants and young people under the age of 18. Should such roll-out not be approved, we consider that we can only sensibly recommend a mandatory requirement in respect of all defendants under the age of 14 appearing for the first time in the youth court.

The full report, impact assessment and other relevant documents are available at

Patrick McGee ADJC Coordinator 0448 610 105