Thursday, 28 October 2010

Fitness to Plead

In 1831, at the York assizes, a woman called Dyson stood trial for the murder of her illegitimate child by cutting off its head.  The lady defendant was deaf and had never been able to speak.  Even with the use of sign language she could not understand matters such as her right to challenge jurors.  A jury found her "mute by visitation of God" and Parke J - (later Lord Wensleydale) - relied on the authority of Hale to require the jury to find her insane - R v Dyson (1831).

A few years later came the case of R v Pritchard (1836).  Pritchard was also "deaf and dumb" and stood trial for what was then the capital offence of "bestiality."  Alderson B (the trial judge) relied on R v Dyson and empanelled a jury to decide whether he was "mute of malice of by visitation of God."  The jury found the latter and were then required to decide whether he could plead.  They found that he could do so and he entered a not guilty plea.  The jury were then directed to decide whether he was sane or not.  Alderson B told the jury that the defendant could be regarded as sane if he had sufficient intellect to comprehend the course of the proceedings so as to make a proper defence; to know that he could challenge any juror to whom he objected and to comprehend details of the evidence.

The test in Pritchard received the approval of the Court of Criminal Appeal in R v Podola [1960] 1 QB 325 and the test remains the basis of the law although it is outdated and inconsistent with modern psychiatry.

Under modern law, the question of fitness to plead is decided by the judge: Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Fitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004.  The judge must have reports from two or more registered medical practitioners at least one whom must be approved under the Mental Health Act 1983 s.12.  If it is decided that the defendant is unfit to plead then the court moves to the so-called "s4A hearing" to determine whether the defendant did the act or made the omission constituting the actus reus of the offence charged against him.  If there is a finding that the defendant did the act then certain disposals are possible - e.g. a Hospital Order.


In 2016, the Law Commission reported - A modern approach to Unfitness to Plead

This report is the outcome of the Commission's project which commenced in 2010.

The above post was concerned with the procedure in the Crown Court.  It should be noted that somewhat different rules apply in the Magistrates' Court - see Part 8 here..


  1. The site is simple superb with helpful info! So this article shows that there were 2 deaf people in 18s..anyways thanks..

    Lawyer CV

  2. Very interesting and thanks for bringing the consultation to our notice. I've had very serious concern over clients with learning disabilities and their capacity to understand, but psychiatrists are loathe to suggest unfittness to plead because of the draconian alternatives like Hospital Orders.

  3. How incredible, so was Dyson the first record of such an incident or 'Fitness to Plead'?

  4. Dyson is interesting because the judge (Parke) fell back on the legal writings of Matthew Hale who was (and still is) regarded as a high authority for the law of his day. In Pritchard, the judge (Alderson) set down in a more precise way the criteria to be used in making a decision about fitness to plead. The law, as set out in Pritchard, has basically survived to this day and the Pritchard test was endorsed in R v Podola 1960. Since Podola, it has not been open to any court below the House of Lords (now Supreme Court) to review the law.

    All of this is a good illustration of how judge-made law can continue to be followed even though medical understanding of mental illness has developed massively. Such law does the legal system little credit but, in accordance with the law of precedent, it is necessary to await a decision from a higher court. Many years can pass before a suitable case reaches the appellate courts.

    Another example of the law being stuck in the past was the question of rape by a husband on his wife. Interestingly, it was Hale's writings which recorded the old rule of law that a husband could not be guilty. No doubt Hale merely stated the law is was then understood. This rule was eventually removed by the House of Lords decision in R v R [1991] 1 AC 599.

    All of this also shows the value of having a body such as the Law Commission which can produce well considered recommendations to amend the law. Of course, it is then for Parliament to enact legislation and the response of Parliament to Law Commission reports has not been very good. Even when Parliament has acted, it has frequently chosen to put its own "spin" on the Law Commission's work. Examples of this can be found in the hearsay evidence provisions in the Criminal Justice Act 2003.

    Decision in R v R:

    R v R 1991

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