Regulations governing when a defendant is unfit to stand trial are antiquated and should be replaced by a simpler test that assesses their decision-making capacity, the Law Commission has recommended.
The call for reform comes after the political row over whether or not the Labour peer Lord Janner was fit to plead to historical child abuse charges because of his medical condition.
Janner, who was said to have degenerative dementia, died shortly before Christmas. A court is due to rule formally later this week on whether a so-called “trial of the facts” without the accused’s participation should be discontinued following his death.
The Law Commission report, which does not refer to Janner’s case, says that the procedure for assessing whether a defendant is fit to plead dates back to a common law case called Pritchard in 1836.
It requires the accused to be able to understand the charge, decide whether to plead guilty or not, exercise their right to challenge jurors, instruct lawyers, follow the proceedings and give evidence in their own defence.
The Law Commission says the existing test focuses too heavily on intellectual abilities and fails to take into account aspects of mental illness and other conditions that might interfere with the defendant’s capacity to engage in the trial process.
It says the test should focus instead on whether the defendant can play an effective role in their defence or whether they may be seriously impeded because of delusions or severe mood disorders.
The ability to challenge a juror, it proposes, should not be a specific test nor should there be a “diagnostic threshold” as part of the examination.
Prof David Ormerod QC, the law commissioner for criminal law and procedure, said: “It is in the interests of justice that defendants who can play a meaningful and effective part in their trial should have the opportunity for a full trial.
“The current rules for defining ‘unfitness’ were formulated in 1836, and how the courts deal with vulnerable defendants who are unfit fails to achieve just outcomes.
“Our reforms would modernise the law to bring unfitness to plead into line with current psychiatric thinking, making it more effective, accessible and fair for vulnerable defendants and victims, and providing greater protection for the public.
“It is extraordinary that the unfitness to plead procedure is not currently available in the magistrates’ and youth courts, where some of the most vulnerable defendants in the criminal justice system can be found.
“Extending our reforms throughout the courts system would ensure that young people are no longer treated less fairly than adults.”