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‘Fitness to plead’– vigorous representation needed for defendants in the Magistrates Court who are mentally unwell

The grey area in relation to defendants who are too mentally unwell persists. Those who can’t effectively participate in proceedings in the Magistrates Court or who were too unwell to form the requisite mens rea (required intent or recklessness) at the time of the offence often results under s37(3) of the Mental Health Act 1983 or S11(1) of the PCC(S)A in the imposition or at least the consideration of a Hospital Order (or guardianship order) following either a conviction or a finding of fact.

What though is the position where the individual is either or both ‘unfit’ and historically incapable but not suitable for a Hospital Order?


Where there is uncontested or agreed evidence before the court that the defendant could not, at the time of the offence, have formed the necessary mental element of the crime it should be argued that the court should not move to trial in those circumstances because the court would not be in a position to convict the defendant.

Blackstones 2017 and more particularly D21.51 at paragraph b comments “if the definition of the offence requires the prosecution to prove mens rea, and especially if the offence involves a specific intent, the accused’s mental condition may make it difficult for the prosecution to discharge their burden”. The defence of insanity is available to defendants in the Magistrates Court and unlike the Crown Court if found to apply must result in an acquittal (R (Singh) v Stratford Magistrates Court [2007] 1 WLR 3119).

‘Fitness to Plead’

Where the court have an appetite to proceed to a trial but agree that this is not possible as the defendant would be unable to effectively participate should it then be able to proceed with a fact finding hearing (which would usually be with a view to a S37(3) Hospital Order)?

S37 provides:

37 Powers of courts to order hospital admission or guardianship.

1. Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

2. The conditions referred to in subsection (1) above are that—

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from a mental disorder and that either—

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

3. Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

Law Commission Report (No 564)

The Law Commission’s “Unfitness to Plead” report Volume 1 in summarising the current law regarding fitness to plead in the Magistrates Court makes the point that there is no specific procedure by which a person’s unfitness to plea may be determined and the Crown Court rules do not apply.

The report goes on to consider S37(3) of the MHA 1983 (cited above) and S11(1) of the PCC(S)A 2000 both of which ultimately lead to consideration of a hospital or guardianship order.

The Law Commission report suggests that to proceed to trial where a defendant cannot effectively participate may amount to an abuse of process and therefore a staying of the proceedings but only in exceptional circumstances.

It is suggested this must be the case where to proceed to a hearing would result in no order being able to be made and therefore there is no useful purpose in proceeding. (see DPP v P 2007 EWHC 946 ( Admin ) 2007 4 ALL ER 628 and G v DPP EWHC 3174 ( Admin ). There may be little point in proceeding if the Court is unlikely to make a hospital order as the other available sentences may be unsuitable for a mentally unwell Defendant who will be unlikely to be able to comply with the requirements of any other sentence disposal.

Defendants who were unwell or who are at the time the case is heard should be more vigorously represented in the Magistrates Court jurisdiction. In an area which often causes much consternation for defendants, medical professionals and legal practitioners alike a more robust approach should be considered including an abuse of process argument as a potential solution.

The Court should only proceed where the charge is serious, the Defendant potentially dangerous and where the Defendant is likely to require and receive compulsory detention under a Hospital Order. For the Court to proceed when these factors do not apply is a waste of court resources and will also result in putting an ill Defendant through the additional stress of a hearing, and which may result in a further deterioration to their mental health.