Fitness To Plead In England And Wales

Donald Grubin

• Publisher: Psychology Press
• Year: 2013
• eBook ISBN: 9781134835454
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

The concept of fitness to plead has its origins in the medieval courts of England, where the ritual of court proceedings demanded that accused individuals respond to the charges against them. Being fit to plead, however, has involved into a fundamental principle of British law and those legal systems that have evolved from it, and it is now associated with the principle of a fair trial. But in spite of its long heritage, the meaning of "being fit to plead", its implications and its consequences all remain vague. Little research has taken place in relation to the concept or its applications in England and Wales, and much of what has been said about fitness to plead has taken place in a factual vacuum.; This book is the result of extensive research into both the development of the concept of fitness to plead and its application. It is based on a review of all individuals found unfit in England and Wales between 1976 and 1988 and provides detailed information about those found unfit to plead and the circumstances associated with their findings, together with follow-up of the psychiatric and legal outcomes. Problems with the working of the law in relation to fitness to plead are discussed and recent changes to it are critically reviewed. The end result is a full consideration of whether the modern concept of fitness to plead protects individuals from unfair trials, and the courts from miscarriages of justice.

Chapter One

Introduction

The concept of being fit to plead to a criminal charge is fundamental to British law and to those legal systems that have evolved from it. It arises from the notion that it is against natural justice to bring to trial those of unsound mind who cannot plead with understanding to the charges brought against them. Formed from legal bricks and psychiatric mortar in the 19th century but built on foundations first laid in the Middle Ages, the concept of fitness to plead has been only partly modernised in the 20th century; though subject to numerous changes and putative improvements over the years, it remains in essence a Victorian edifice. As might be expected for such an ersatz structure bound together by a somewhat unstable mixture of law and psychiatry, it is not viewed with complete contentment by either lawyers or psychiatrists, and the procedure by which an individual is found unfit to plead, together with the consequences that flow from such a decision, have been criticised frequently (Chiswick, 1990a; Emmins, 1986; Gostin, 1986; Grubin, 1991a; Home Office & DHSS, 1975). Considerable unease has been expressed on clinical, ethical, and practical grounds to the extent that it has been referred to in the Court of Appeal by Lord Justice Sachs as “this much dreaded order” (R v Webb, 1969, p.628), which is perhaps not what one would expect for a procedure that is supposed to function in the interests of the mentally disordered defendant.

A person is found unfit to plead if he or she fails to satisfy criteria first enunciated in R v Dyson (1831) but more fully described by Baron Alderson in R v Pritchard (1836). The basic issue was defined as being whether a defendant was of sufficient intellect to make a proper defence. This has been interpreted as the defendant being able to plead to the indictment, to comprehend the details of evidence and the course of proceedings, and to know that a juror can be challenged. More recently, the ability to instruct legal advisers has also been included (Mitchell & Richardson, 1985). Since the 19th century, a person found unfit to plead was considered to be insane on arraignment and subject to the provisions of the Criminal Lunatics Act 1800. Though the legal processing of those found unfit to plead has since been modified by the Criminal Procedure (Insanity) Act 1964, and more recently by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, the legal equivalence of a finding of unfitness to plead and insanity, and the emphasis on intellectual ability in favour of other components of the mental state, have remained unchanged.

The research described here was undertaken when the Criminal Procedure (Insanity) Act 1964 (CP(I)A) was the operative law in relation to those found unfit to plead. This Act required that those found “under disability” in relation to trial (i.e. unfit to plead) should be admitted to hospital under conditions that became equivalent to sections 37 and 41 of the Mental Health Act 1983, that is, a hospital order with Home Office restrictions on discharge without limit of time. If the patient became fit to plead, the Act allowed for remission back to court at the discretion of the Secretary of State; a patient who was not remitted for trial or who did not become fit to plead remained in hospital on the same basis as any patient detained under a restriction order, with discharge by the Secretary of State or a Mental Health Review Tribunal dependent on clinical and public safety considerations.

The provisions of the CP(I)Ahave been perceived as having important negative consequences for those found unfit to plead, discouraging the use of the finding and hence depriving mentally disordered individuals of the protection of one of the basic tenets of British law: the right to a fair trial. The deficiencies of the CP(I)A were particularly well rehearsed in 1975 in the report of the Butler Committee as part of its overall review of the law in relation to the mentally abnormal offender (Home Office & DHSS, 1975). Perhaps the Committee’s most serious concern was the fact that those found unfit to plead could be detained in hospital for indefinite periods regardless of their need for treatment, and even if their capacity to plead was restored. In effect, individuals were deprived of their right to trial and faced possible life detention in psychiatric hospital for crimes they were only alleged to have committed. It took 16 years, however, before even a limited number of the Butler recommendations were finally put into effect.

Despite the medical, legal, and ethical concerns that have been expressed about the finding of unfitness to plead, discussion of the issues has taken place in a factual vacuum. Before the research described here was carried out and made available to the Home Office (some of which has now been published: Grubin, 1991a,b,c), the research literature on unfitness to plead in England and Wales was limited to one study, a survey of psychiatric reports prepared at the time of trial for patients in one English special hospital (Larkin & Collins, 1989). Extending the net to Scotland increased the corpus by only two more studies, one based on patients in a Scottish special hospital (Chiswick, 1978), the other a review of Scottish murder cases that eventually returned for trial (Normand, 1984). Nor was it straightforward to determine the number of people who were actually found unfit to plead: Since 1980 the figures for England and Wales have been combined with insanity verdicts, and enquiries about the number of cases before that year revealed frequent discrepancies between the data published by HMSO in Criminal Statistics for England and Wales and internal Home Office figures (Grubin, unpublished). Thus, even the thorough review carried out by the Butler Committee had to depend primarily on the impressions of those dealing with unfit to plead cases rather than on facts culled from systematic research (Home Office & DHSS, 1975).

The research reported here was designed therefore to look in detail at how the law in relation to unfitness to plead affects the mentally disordered defendant; it involved examination of the cases of all individuals found unfit to plead in the 13-year period 1976 to 1988. The main question the research set out to answer was whether the law has had its desired effect: the protection of the mentally disordered defendant from the distress of a court appearance and the risks of an unfair trial. However, the research also addressed the subsidiary question of whether being found unfit to plead actually works in the interests of the mentally disordered, or whether the risk of an unfair trial may in fact be a more preferable option. Linked to this issue is the question of how the changes in law brought about by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 are likely to affect the mentally disordered defendant. Finally, from a more theoretical perspective, the research will be applied to the question of just how comfortably this Victorian structure sits within the environment of modern medicolegal concepts.

Chapter Two

Historical Background and Legislation

Although fitness to plead is associated with the concepts of a fair trial and the protection of the mentally disordered defendant from the rigours of a court appearance, its origins lie in the procedural formalities of the medieval court of law: Without the opening plea and the accused’s consent to trial by jury, the trial could not take place. As Walker points out in his historical review of crime and insanity (Walker, 1968, p.220), “For medieval and Tudor judges … the commonest difficulty with which they had to contend at the outset of a trial for felony or treason was presented by the man who simply refused to plead ‘guilty’ or ‘not guilty’. Unless he uttered the necessary words, reverence for the ritual of the law made it unthinkable to proceed with the trial, with the result that he could not be convicted and executed”. Thus, those who could not, and those who would not, offer a plea to the court posed a similar problem for an adversarial process that required the accused to respond to allegations made against him, and for the early courts of England three types of individual became closely linked: the insane, the deaf-mute, and the individual who, for more calculated reasons, decided it was not in his best interests to enter a plea. The distinction between “mute of malice” and “mute by visitation of God” thus became entwined with court procedure and fitness to plead from the origins of modern legal processes. But in order to understand fully how this situation came about and how it continued to evolve, it is necessary to review first the early relationship between the mentally abnormal and the law.

Anglo-Saxon and Norman Antecedents

Generalisations about the legal framework of pre-Norman England can be made only with caution as different localities had diverse customs, with a network of competing courts covering the country (Holdsworth, 1922). Walker (1968) refers to the transcription of a text ascribed to Egbert, Archbishop of York in the 8th century, which outlines the state of law in pre-Norman Northumbria, and though it is unclear how representative this is of Anglo-Saxon England in general, it appears similar at least to the 7th-century Kent of King Aethelberht (Richardson & Sayles, 1966). In both Northumbria and Kent crime was a matter for compensation for loss of property, injury, or loss of life, rather than for trial and sentence in any formal sense, with a failure to pay compensation resulting in a blood feud between the families of victim and offender. The amount of compensation payable depended on the nature and severity of the injury, and on the status of offender and victim. The rules were similar and equally clear in the case of the insane, with Egbert writing: “If a man fall out of his senses or wits, and it come to pass that he kill someone, let his kinsmen pay for the victim …” (Thorpe, 1840, quoted in Walker, 1968, p.15).

Notions of intent, mens rea, and responsibility were not relevant, though to some extent they were recognised (for instance, Church as opposed to secular law demanded different penances depending on whether a homicide was accidental or premeditated); it was the committal of the act itself that was the primary concern. By the time of the Norman Conquest, however, a number of crimes such as murder, arson, adultery, and treachery against one’s lord had become public wrongs and could no longer be put right by simple compensation, and were instead punishable by death or mutilation and the expropriation of the offender’s property by the Crown. Guilt, when in doubt, could be determined by the Deity through the trial by ordeal, which was then followed by the relevant punishment. For a slave this meant ordeal by water, which required the accused, with bandaged hand, to put his arm into a bowl of boiling water up to the wrist, or if subject to the “triple ordeal” up to the elbow, to pick up a stone at the bottom of the bowl; after three days the bandages were removed, and if the arm was scalded, guilt was declared. Alternatives for the freeman involved ordeal by hot iron, which required him to walk over red-hot ploughshares without being scarred, to put his hand into a glove of hot iron, or to pick up a red-hot iron bar and hold it in his bare hand; again, the presence of blisters in three day’s time was a sign of guilt (Hibbert, 1963; Richardson & Sayles, 1966).

The primacy of the actus reus remained overriding into the 13th century, but the relevance of intention was becoming increasingly acknowledged. The 10th-century laws of both Aethelred and his successor Cnut, for example, stated that those who committed a misdeed involuntarily or unintentionally should be “entitled to clemency” (Walker, 1968). It is not clear from these laws how the insane or the mentally defective were to be dealt with, but local custom probably ensured that they were not brought to trial in the first place, at least to the court of the king. The Laws of Henry the First, for instance, give a good account of both custom and law in southern England around the time of the Norman conquest. In the Laws it is stated that “Insane persons and evildoers of a like sort should be guarded and treated leniently by their parents” (quoted in Walker, 1968, p. 17), though it should be noted that their families were still expected to pay compensation.

By the 11th century trial by ordeal and other methods of determining guilt such as compurgation (in which a number of compurgators or witnesses swore to the good character and innocence of the accused) and trial by combat (in which the accused might establish his innocence by challenging his accuser to a duel) became less accepted, and the king’s courts started to replace them (Holdsworth, 1922; Turner, 1968). During the reign of Henry II in the late 12th century, a system of prosecution by the Crown was established in which trials for serious offences were conducted by travelling justices, the offender having been first “declared” by the hundred jury (a forerunner of the modern grand jury). In the early 13th century the petty jury supplanted the trial by ordeal, which was finally abolished following the Lateran Council of 1215. Perhaps under the influence of Roman law, and with the Crown becoming both more powerful and intent on consolidating its power, serious crimes were no longer simply matters for compensation, but were seen as crimes against society, which the king was entitled to punish (Hibbert, 1963).

Thus, by the 1200s it had become the practice for juries to determine both whether a defendant should be tried and whether he was guilty or innocent. These developments had the effect of bringing insane and mentally defective offenders into the sphere of the court. Whereas previously the mentally disordered might simply have been confined in prison by the sheriff or released into the protection of their families, now they had to be tried (Walker, 1968, pp. 19–20): “The usual procedure was for the jury to certify the facts and for the king to decide what should be done with the [insane] offender…. The king must be consulted not because the jury or justices were at a loss but because it was not for them to interfere with the normal course of the law by excusing him from the automatic penalty for his felony”. Indeed, Walker describes how in 1293 justices in Cumberland were fined for releasing on their own authority a madman who had been convicted of arson, as only the king could divert the due process of law. And though the king might show leniency or even pardon the insane, it was not until the early 16th century that cases began to appear regularly in which the insane were actually acquitted of their crimes (Walker, 1968).

But what did madness mean in 13th- and 14th-century England, the time when the concept of being fit to plead began to develop? Certainly in terms of the civil law the difference between idiocy (natural fools) and madness (the lunatic) was well recognised, the former existing from birth and considered a permanent condition, the latter of later onset and involving fits of madness but where recovery was possible. The distinction was important in relation to the laws of Chancery, for though the Crown assumed the responsibility for administering the estates of both madman and idiot, it was entitled to take profits for itself only from the estates of idiots, which it looked after for the life of the individual; feudal law had little interest in the idiot or madman who did not have property (“Comment”, 1951; Holdsworth, 1922).

In the case of the idiot, “diagnosis” was based on intelligence, which is clear from this somewhat later, mid-16th-century definition (Fitz-Herbert, Natura brevium, quoted in “Comment”, 1951, p.363):

And he who shall be said to be a Sot and Idiot from his birth, is such a Person who cannot account or number twenty Pence, nor can tell who his Father or Mother is, nor how old he is &c, so as it may appear that he hath no Understanding or Reason what shall be for his Profit and what for his Loss: But if he hath such Understanding that he know and understand his Letters, & do read by Teaching or Information of Another man, then it seemeth he is not a Sot nor a natural Idiot…

In the case of the insane, however, the situation was more complicated. Bracton, one of the first English legal writers to consider the topic in detail, provides a useful insight into contemporary thinking on the meaning of insanity. Bracton believed that the madman was not responsible for his acts, being protected by “the misfortune of his deed. In misdeeds we look to the will and not the outcome….” (quoted in Walker, 1968, p.26; Walker suggests that this may be a misquotation of the Roman writer Modestinus who referred to “the misfortune of his fate”). Madmen, for Bracton, were totally lacking in “discretion”, and “are not very different from animals who lack understanding” (quoted in Walker, 1968, p.28), not being able to understand the nature of their acts and thus being unable to form the necessary intention to be guilty of a crime. But the degree of insanity in the accused needed to be considerable: There had to be a total lack of discretion, and Bracton’s frequent use of the term furiosus suggests that he had in mind violent, raving behaviour. His choice of words is suggestive, at least to the 20th-century reader, that more than simple rationality may have been involved, but his ideas (which were probably not original to him) became incorporated in the “wild beast test” of insanity used in the years before McNaughton, in which it was the total deprivation of reason rather than any other abnormal mental or emotional state that defined how the law identified the insane.

It was with the coming together of two streams, therefore—one demanding that the formalities of court procedure be followed, the other defining insanity in terms of rationality—that provided the basis for what was to become the modern notion of fitness to plead. Prior to the 13th century, it was unusual for the madman, the deaf-mute, or the idiot to be brought to trial, though the serious offender might have been locked up by those responsible for law enforcement; after this time the three sailed in the same boat, with rationality acting as the rudder which would steer them into trial, or onto the rocks of a now more formalised indefinite containment awaiting the King’s Pleasure.

Medieval Origins

Though the idea of being unfit to plead as we know it did not take shape until the 19th century, its seeds and early growth can be clearly recognised as early as the 14th century. Until then, as described above, the insane, the idiot, and the deaf-mute might have been informally diverted from trial, but once the system of presenting the accused to the court by the hundred jury became the norm, a more formal met...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgements
• Abstract
• 1. Introduction
• 2. Historical background and legislation
• 3. Review of the research literature
• 4. Methodology
• 5. Results
• 6. Discussion
• 7. Conclusion and recommendations
• Appendix: Data collection schedule
• References
• Cases
• Author Index
• Subject Index