Fitness to plead and to be tried

Fitness to plead and to be tried

A trial presupposes that the accused can understand the proceedings, instruct counsel, and respond meaningfully to the case against them. If a defendant lacks these capacities due to mental disability, the fairness of the trial is compromised. Therefore, it is necessary to determine whether the accused is fit to be tried whenever such an issue is raised.

“Fitness to plead” can be broadly understood to mean “fitness to be tried”, or fitness to participate in the trial process. The question here is whether the accused is fit to participate in their criminal trial due to a mental disability, and this is determined in relation to the Pritchard test at common law, which was described in the case of R v Leung Tak Choi (1995) as a lack of ability to understand the charges, instruct counsel, challenge jurors, understand the evidence against them, and give evidence in defence. 

The prosecution, the defence or the trial judge may raise the issue as to whether the accused is fit to plead. Case law shows that the judge typically only intervenes if there is a substantial question as to trial competency, and is not obliged to raise the issue if there is only a possibility of incompetency (R v Keung Sai Chung (1986)). If the trial judge believes the accused had recovered from what had been a temporary indisposition (but nothing more), he is not required to raise the issue. If the defence raises the issue of fitness to plead, then the defence bears the burden of proving that the accused is unfit to plead on the balance of probabilities.

The question of fitness to plead remains an issue to be determined by the jury (in courts where juries are empanelled). In such cases, a jury is asked to decide whether the accused is fit for trial, based on the evidence of two or more doctors (of whom at least two must be psychiatrists).