The law on unfitness to plead applies where a defendant cannot effectively participate in their trial because of a mental or physical condition. Where a defendant is found unfit to plead, the criminal trial does not proceed in the usual way. Instead, the court holds a fact-finding hearing to determine whether the defendant did the act or made the omission alleged.

Where it is found the defendant did the act, the court may impose one of the statutory protective disposals available under the Criminal Procedure (Insanity) Act 1964: a hospital order, with or without a restriction order under the Mental Health Act 1983, a supervision order, or an absolute discharge. The appropriate disposal is a matter for the independent judiciary, informed by the facts of the case and relevant expert evidence. The sentencing framework is designed to protect the public while recognising the rights of a vulnerable defendant and the interests of those affected by the alleged offence.

The Law Commission has recommended reform of the unfitness to plead framework, including a revised test for unfitness to plead, changes to the hearing process, and more effective powers for the court where allegations are proved. The Government has accepted the majority of these recommendations and is considering how best to take forward these changes. Given the close relationship between unfitness to plead and the defences of insanity and diminished responsibility currently being reviewed by the Law Commission, we are mindful of the need to take a coherent and evidence-based approach so that any future reforms are workable, avoid piecemeal change, reduce the risk of inconsistency or uncertainty in the law, and maintain public confidence in the criminal justice system.

As part of these reforms, the Government will consider the concerns raised by this petition. Although sentencing and disposal decisions are a matter for the independent judiciary, the Government recognizes that the current statutory framework limits the disposals available. We will consider whether courts should have a broader and more flexible set of disposals available to them in these cases, including a wider range of ancillary orders to strengthen supervision and allow more tailored arrangements to enhance public protection.

Recognizing that unfitness to plead cases can be especially difficult to understand because they do not follow the ordinary trial and sentencing route, the Government will also consider how the court procedure can be made clearer and more supportive for victims and their families.

Ministry of Justice