Unfitness to Plead, Insanity and the Law Commission: Do We Need a Diagnostic Threshold?
| Published date | 01 August 2021 |
| DOI | 10.1177/0022018321995430 |
| Date | 01 August 2021 |
| Subject Matter | Articles |
Article
Unfitness to Plead, Insanity and
the Law Commission: Do We
Need a Diagnostic Threshold?
James Mason
Teesside University, UK
Abstract
This article examines one aspect of the new test of effective participation at trial proposed by
the Law Commission of England and Wales. This proposal aims to replace the current criteria
for fitness to plead originating from Pritchard and developed more recently in M (John). Spe-
cifically, this article offers a critical examination of the Commission’s refusal to incorporate a
so-called ‘diagnostic threshold’ within their proposed test. After reviewing the arguments for
and against this decision, attention is drawn to the clear presence of diagnostic thresholds
within other areas of law, such as the mental condition defence of insanity. Overall, the
Commission’s proposals are a vast improvement upon the archaic rules of present day, and,
contrary to the views of some scholars, their decision to omit a diagnostic criterion is no
exception to this. In fact, the implications of this decision reach far beyond the particular
context of unfitness proceedings and ultimately cast doubt on the significance of diagnostic
thresholds in all areas of law. By focusing exclusively on the relationship between unfitness to
plead and the defence of insanity, this piece demonstrates how both tests can be reformulated
so as to avoid any explicit reference to a diagnostic criterion.
Keywords
Unfitness to plead, capacity, insanity, diagnostic threshold
Introduction
The law relating to unfitness to plead should exempt an individual from a criminal trial, either perma-
nently or temporarily, when he is considered incapable of comprehending and meaningfully participat-
ing in court proceedings.
1
Some may disagree with this statement by arguing that, irrespective of a
Corresponding author:
James Mason, School of Social Sciences, Humanities and Law, Teesside University, Middlesbrough TS1 3BX, UK.
E-mail: jamesmason_98@hotmail.com
1. A Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law (OUP, Oxford 2012) 67.
The Journal of Criminal Law
2021, Vol. 85(4) 268–279
ªThe Author(s) 2021
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DOI: 10.1177/0022018321995430
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