Fitness to Plead

When a court decides if a defendant is able to understand and take part in what is happening in court.

What this means

Fitness to Plead is the principle that if someone suffers from a severe disability they may not be fit to participate in the trial process (it was created by the Court of Appeal in 18361).

The definition of someone who is unfit to plead means they are not able to:1

• understand the charge(s) (the crime they are said to have done)
• decide whether to plead guilty or not guilty
• follow the course of proceedings
• instruct a lawyer
• challenge a juror (understand the evidence that is inconsistent with what they have said happened)
• give evidence in his/her own defence

There may be changes (modifications) that can help a child effectively participate at court, if not, they may be found unfit to plead.

At the police station

A person who is unfit to plead may not be able to understand and follow what happens during a police interview. It is important to tell the police as they may be able to give the person special help, such as simplifying questioning, offering breaks or providing an intermediary, or the police may decide criminal proceedings are not appropriate or necessary.

In the youth court and adult magistrates’ court2

There is no formal procedure to decide fitness to plead in the youth court or the magistrates’ court.3 First the defence lawyer would ask the court for an adjournment to get more information about the child from an expert, such as a psychologist or psychiatrist.4 If the expert report explains the defendant is unfit to plead and the court agrees, the court can then decide whether the defendant did the acts or omissions (so if the criminal offence was committed) that the prosecution are claiming were done.5 The child does not receive a criminal conviction and can be released, get a guardianship order (if aged 16 and over) or a hospital order.6 

In the Crown Court7

First the defence lawyer would get more information about the child from an expert, such as a psychologist or psychiatrist. There need to be at least two medical practitioners8 who prepare reports. The prosecution might want to instruct their own expert. The judge will decide if the defendant is fit to plead and may ask the experts to come to court to answer questions. If the judge decides a defendant is unfit to plead, then a jury will be asked to decide if the defendant did the acts the prosecution are claiming they have done. If the defendant is found to have done the act they will not get a criminal conviction but could receive a hospital order, supervision order or an absolute discharge.