During my time at university, I came across an Independent article which raised the issue of people standing trial despite being unfit to plead. It made for a rather interesting read, so I decided to write an essay on it. I decided to debate whether the tests for mental capacity and fitness in criminal trials are fit for purpose or just antediluvian Victorian legacies in need of reform. I would like to share this article and essay with you now, as I believe this to be a very complex, but equally extremely important, issue which ought to be considered with more urgency and compassion than seems to currently be the case. All references are still included so that you may understand the essay better and are able to undertake further reading, should you too find it to be an interesting topic.
The Independent article mainly focuses on how mental capacity and fitness is assessed for criminal trials. There are differing opinions on whether the threshold for mental unsuitability for trial is too high and old-fashioned or whether it still fulfils its purpose effectively, as well as whether changing the tests would actually be effective or just time consuming, complicated and expensive. I will consider and delve into these opinions and then subsequently conclude that whilst the number of people who would benefit from a new test and threshold would be relatively small, change is still needed even if only to uphold the rule of law.
In the Independent article, the Law Commission’s critical view of the Pritchard Test is highlighted, with the Commission of the opinion that ‘[the Pritchard test] fails to assess the correct abilities a defendant requires to face a criminal trial such as instructing a lawyer and following the evidence’. This test was established in the case of Pritchard, in which the defendant was deaf and mute. The following was probed to decide whether he was fit to plead:
“There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.”
This test has been updated and amended over the years, including implementation of statutory procedures and new laws, such as the Criminal Procedure (Insanity) Act 1964, in an attempt to mould the test to better suit modern medical and legal knowledge. However, because of the complexities of the test, with there now being requirements such as there being written or oral evidence presented by at least two medical professionals (one of whom must be approved under s.12 of the Mental Health Act 1983), the Law Commission is concerned about the high likelihood of the test being applied inconsistently. The commission therefore believes that the unfairness would be mitigated by statutory reform and two new tests; one test explicitly tailored to assess decision-making capacity and the other test to assess whether a defendant is fit to be able to plead guilty. Those who are deemed unfit would then be diverted from a full trial in order to protect the defendant from an unfair ruling and boost trust and confidence in the legal system from the public. This view of ineffectiveness is furthered by James et al, who suggested that professional discomfort exists, emanating from the psychiatrists and other medical professionals involved in these trials and tests. They concluded that the current complex and demanding requirements of the CPA often leads to ‘pragmatic avoidance of the question of capacity by professionals concerned’.
Reservations have been raised by others regarding the possibility of new tests replacing the current procedures. The Bar Council is particularly anxious, believing that new tests could see pleads of unfitness affecting 500 extra cases each year. In a summary statement, they opined:
“Our tentative/provisional view is that such an outcome would be undesirable, and that a process that permitted such an outcome might be vulnerable to abuse by some defendants who choose to make a tactical decision to plead ‘not guilty’ whilst playing the ‘medical card’ in the hope that, for example, (a) a full trial, perhaps leading to conviction, might be avoided, or (b) the defendant can justify not giving evidence, or (c) the defendant can avoid adverse inference directions.”
Despite the purpose of implementing a new test being to create a fairer environment for those with mental capacity difficulties, which would lead to a more trustworthy and balanced legal system, the Royal College of Psychiatrists is also deeply concerned about changes to the current tests. Having considered the pressure they are already under, and the unfortunate consequence of that, they are of the belief that a new test wouldn’t necessarily result in a reliable psychiatric tool for use in trials, and that regardless of this, the onus ought to not be on them anyway as they are ‘adamant that the ultimate
determination of whether, or to what extent, the defendant lacks decision-making capacity ought to be a judgment for the court’.
These findings are significant as they present a dilemma regarding (a) whether the rule of law is being implemented properly in these cases and (b) how much investment in time, money and overhauling systems is reasonable and fair for such a relatively small number of cases? The rule of law amalgamates all moral aspects and ethical conundrums of law into an easy to follow set of principles which must be upheld for the law to be fit for purpose. Amongst several other principles, this rule of law sets out the following principles which are central to this dilemma:
1. ‘Legal questions should be resolved by applying the law, not discretion [this ensures that legal rules, not personal preference, are applied].
2. The law should apply equally to all, except where objective differences justify different treatment.
3. The law must adequately protect fundamental human rights.
4. The state should provide fair adjudicative procedures [the right to a fair trial, both criminal and civil]’
The first issue with the current assessment procedures is that because of the complexities of it, there is room for inconsistencies and discretion to colour the application of the law. This, in turn, contravenes the other principles listed as not only is the law then not being applied equally to everyone when having their mental fitness assessed, but it also leads to breaches of basic human rights, namely articles 6, 14 and 17, which outline a persons right to a fair trial, protection from discrimination (for protected characteristics, including disability) and the prohibition of abuse of someone’s rights.
Additionally, an adjacent issue is created as the law should be accessible (under principle 1 of the rule of law), which means that it should be clear, predictable and not too expensive, so that ordinary people may access it. However, given that those with mental health conditions face up to a 42% pay gap when compared to their mentally healthy colleagues, and that ‘only about 40 per cent of people with a long-term mental illness are in employment’, it stands to reason that before any legal proceedings have even begun, those with mental illnesses are already disadvantaged, being more likely to be unemployed or living penny by penny and thus are less likely to be able to afford any proper form of legal defence team. This, of course, is then exacerbated by the complex nature of the current set up, resulting in an even more costly defence. This exact issue is what was criticised by the commission in the article.
It is clear then that the current test is not adequate, with too narrow a lens to capture the full variety of combinations of difficulties that someone with a mental health condition may have, and too broad a stroke when determining what makes someone able and not able to plead guilty. However, in order to appease the opposition, who bemoan radical change due to the excessive costs and effort entailed, I believe that using the skeleton of the current test could suffice. Applying the medieval idea of ‘solve et coagula’ (meaning to dissolve and then remake) to the law could please both sides and make sure that the rule of law is upheld, therefore fulfilling the ethical and moral goal of the law. Taking away the excess that has been added over the years since the Pritchard Test was first established (such as the amendments to the test after the cases of R v Daviesand R v M (John), and then breaking down the question of mental fitness into several questions, would be more efficient whilst also not being vulnerable to abuse, which would solve the issues the Bar Council have. This would then leave us with a test such as that exemplified by Jill Peay. Additionally, having this breakdown of simple questions would give a more objective slant to the test than the current one which relies on a degree of discretion, thus creating a more consistent application and consequently upholding the rule of law and not breaching the defendant’s basic human rights.
 ‘Too many people unfit to plead face criminal trials, says Law Commission’, David Connett for Independent, 10th January 2016 (accessed 30/04/2020)  ‘Public Law Directions’, by Anne Dennett, Oxford University Press, April 2019, CH 7, 152  Independent (n27) R v Pritchard (1836) 7 C&P 303  Ibid  http://www.legislation.gov.uk/ukpga/1964/84  http://www.legislation.gov.uk/ukpga/1983/20/section/12  ‘Unfitness to Plead Summary’, Law Commission, January 2016, CH 4, 13, 1.53  Ibid CH 3, 11-12, 1.42-1.47  Ibid CH3, 12-13, 1.48-1.52  Criminal Procedure (Insanity) Act 1964  D. James, G. Duffield, R. Blizard, and L. Hamilton, ‘Fitness to Plead. A Prospective Study of the Inter-Relationships between Expert Opinion, Legal Criteria and Specific Symptomatology’ (2001) 31 Psychological Medicine 139, 148, in ‘Fitness to Plead and Core Competencies: Problems and Possibilities’, Jill Peay, LSE Law, Society and Economy Working Papers 2/2012, 12  Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales, ‘Unfitness to Plead. A Response to the Law Commission CP 197’, 25 January 2011, 13 in ‘Fitness to Plead and Core Competencies: Problems and Possibilities’, Jill Peay, LSE Law, Society and Economy Working Papers 2/2012, 20  ‘A perspective study’ (n38)  Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales, ‘Unfitness to Plead. A Response to the Law Commission CP 197’, 25 January 2011, 17 in ‘Fitness to Plead and Core Competencies: Problems and Possibilities’, Jill Peay, LSE Law, Society and Economy Working Papers 2/2012, 20  Ibid 21 in ‘Fitness to Plead and Core Competencies: Problems and Possibilities’, Jill Peay, LSE Law, Society and Economy Working Papers 2/2012, 20-21  ‘Public Law Directions’ (n28)  ‘Unfitness to Plead Summary’ (n35)  Human Rights Act 1998 c.42, Schedule 1, Part 1  ‘UK’s ‘hidden disgrace’: mental health problems can lead to 42% pay gap’, Denis Campbell for The Guardian, 6th August 2016 (accessed 02/05/2020)  ‘A Manifesto for Better Mental Health’, Mental Health Policy Group - General Election 2017, 11  Independent (n27)  (1853) 3 Car & Kir 328   EWCA Crim 3452  Law Reform (n39)  ‘Fitness to Plead and Core Competencies: Problems and Possibilities’, Jill Peay, LSE Law, Society and Economy Working Papers 2/2012, 28-30  HRA (n45)
‘Too many people unfit to plead face criminal trials, says Law Commission’, David Connett for Independent, 10th January 2016
‘UK’s ‘hidden disgrace’: mental health problems can lead to 42% pay gap’, Denis Campbell for The Guardian, 6th August 2016
'A Manifesto for Better Mental Health’, Mental Health Policy Group - General Election 2017
D. James, G. Duffield, R. Blizard, and L. Hamilton, ‘Fitness to Plead. A Prospective Study of the Inter-Relationships between Expert Opinion, Legal Criteria and Specific Symptomatology’ (2001)
Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales, ‘Unfitness to Plead. A Response to the Law Commission CP 197’, 25 January 2011
Peay, J, ‘Fitness to Plead and Core Competencies: Problems and Possibilities’, LSE Law, Society and Economy Working Papers 2/2012
‘Unfitness to Plead Summary’, Law Commission, January 2016
Dennett, A, ‘Public Law Directions’, Oxford University Press, April 2019
Criminal Procedure (Insanity) Act 1964
Human Rights Act 1998
Mental Health Act 1983
R v Davies (1853) 3 Car & Kir 328
R v M (John)  EWCA Crim 3452
R v Pritchard (1836) 7 C&P 303