Unfitness to plead in England and Wales: Historical development and contemporary dilemmas

Fitness to plead refers to a criminal defendant’s ability to participate at trial. The purpose of fitness-to-plead laws is to protect the rights of vulnerable individuals who are unable to defend themselves in court and to preserve natural justice in the legal system while balancing the needs to see justice served and protection of the public. Early legal systems treated mentally disordered defendants with leniency, but over time those found unfit to plead have been subjected to indefinite incarceration, breaching their right to liberty while protecting their right to a fair trial. Conversely, the threshold for being found unfit is high, and there are concerns that many unfit defendants are being unfairly subjected to trial. The approaches to balancing the competing demands have changed over time and have led to confusing and contradictory practices. In order to understand better how and why the current problems have come to exist, this paper analyses the historical development of the legal framework for fitness to plead from Medieval England to the turn of the 21st century. It isolates core dilemmas: (a) what the normative standard of fitness to plead is and whether the current test for determining fitness adequately reflects this standard; (b) whether fitness to plead should be disability neutral or whether unfitness requires the presence of a psychiatric diagnosis; and (c) how the courts should deal with those found unfit to plead, including insuring against the deprivation of liberty of innocents while ensuring the public are adequately protected.