Existing rules for deciding whether a defendant is unfit to participate in a criminal trial are out of date, misunderstood and inconsistently applied, the Law Commission says today.

In a report the commission sets out recommendations to bring the test ‘into line with today’s psychiatric and psychological thinking’.

The new test would look at defendants’ decision-making capacity and ask whether they are able to participate effectively in their trial. The current test, based on rules dating from 1836, prioritises intellectual ability, the commission says.

The commission is also recommending new procedures for considering a criminal allegation where a defendant is unable to participate in a trial. In place of a hearing of the facts, it proposes that:

  • The judge should be able to decide not to have a hearing, if more suitable provision can be made for the defendant outside the criminal justice system;
  • An alternative finding hearing should replace the current trial of the facts. The new hearing would more closely mirror a full trial, giving defendants better opportunity to challenge the prosecution, and allowing victims to give a full account of their experience;
  • Where allegations are proved, the courts should be able to impose a more effective order for supervision, which could include constructive support for the vulnerable individual and more restrictive measures to ensure public protection.

The commission is also recommending that the reformed unfitness to plead procedure be extended to the magistrates’ and youth courts.

Professor David Ormerod QC (pictured), commissioner for criminal law and procedure, said: ‘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.'