The question of whether a defendant is fit to plead has a long history.
In 1831 a woman called Dyson was accused of murdering her child. She had never been able to talk and was profoundly deaf. The jury found that she was unable to understand the nature of the proceedings and she was locked up.
The famous Pritchard case took place 5 years later, in 1836. Pritchard was also deaf and could not speak. Again, Pritchard was found not to have the ability to take part in proceedings – unfit to plead.
114 years later in 1960 the case of Podola, before an eminent Judge (Lord Chief Justice Parker) established Pritchard as the leading case and established clear precedent for succeeding cases.
The Criminal Procedure (Insanity) Act 1964 governs fitness to plead today. It was subsequently amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and also the Domestic Violence, Crime and Victims Act 2004. The 1991 and 2004 Acts make frequent reference to the 1964 Act and as a result are almost impossible to read as they are so intertwined.
The issue of Fitness to Plead can be raised by the defence or, rarely, the prosecution. When raised by the defence, fitness is presumed and unfitness must be established on the balance of probability (the civil burden of proof). When raised by the prosecution it needs to be proved beyond reasonable doubt (the criminal burden of proof).
The issue of Fitness to Plead is decided by a Judge, not by a jury. If medical evidence needs testing, a contested fitness to plead hearing can take place.
If a defendant is found unfit to plead then there are only 3 options – a hospital order, a supervision/guardianship order (in the community) or an absolute discharge.
Many experts worry that finding someone unfit – if they do not require hospitalisation offers a “get out of jail free card” due to the lack of options.
There have been efforts to reform the fitness to plead process over the last 10 years but these have not been pursued. The issue current seems to be in limbo.