Reformulating fitness to plead: a qualitative study

Abstract

A significant number of mentally ill defendants pass through the courts, where clinicians advise upon their ability to fairly stand trial. This is codified in the assessment of 'fitness to plead'. In England and Wales, the narrow 'Pritchard' criteria that determine fitness date from 1836. The authors undertook a piece of qualitative research with the aim of determining whether the 'Pritchard' test remains fit for purpose. A semistructured interview was devised to study the experiences of senior criminal barristers. Framework analysis was adopted in order to identify relevant themes within the data. Five key themes emerged, helping to define the true construct of 'fitness' and illustrating serious procedural problems with the current approach. A range of practical solutions emerged. It was clear from the results that formal findings of unfitness are extremely rare. Many mentally ill defendants are missed or stand trial unfairly. The Pritchard criteria do not protect their best interests. A possible reformulation of the approach to assessing fitness is presented for discussion.

Ten Year Research Update (2001–2010): Evaluations for Competence to Stand Trial (Adjudicative Competence)

“…In the United Kingdom, commentators discussed the potential impact of a 1994 statutory change in the definition of fitness to plead, expressing concern that broadening the concept to include defendants' abilities to give evidence in their defense would increase rates of unfitness to plead findings, with resulting deprivation of liberty (Gray, O'Connor, Williams, Short, & MacCulloch, ). In two articles, Rogers, Blackwood, Farnham, Pickup, and Watts (, ) questioned the utility of the U.K.'s definition of fitness to plead. They argued that it is at odds conceptually with the principles of the Mental Capacity Act 2005 , which provides criteria and guidance within civil law for determining an individual's capacity for management of financial affairs or the care of oneself.…”

Fitness to Stand Trial: A General Principle of European Criminal Law?

“…While in England and Wales the formal finding of unfitness to plead is rare, 20 this is almost the opposite in the United States. It is estimated that about 60,000 competence evaluations are carried out annually and that in about 20% of those cases the persons under evaluation are deemed unfit.…”

“…It was found in a qualitative study that 'formal findings of unfitness under the (…) test are extremely rare'. 12 This may result in the potential unfairness of the trial, because a significant number of persons who are mentally ill continue to undergo trial. 13 Both conceptual and procedural changes are considered necessary.…”

Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission's Proposals for a New Capacity Test

“…Empirical research suggests that findings of unfitness to plead are very rare. 21 The logical conclusion that can be drawn from this is that many mentally ill individuals are being tried when unfit to participate adequately in proceedings.…”