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BLOG: Fit for Purpose? Fitness to Plead and Mental Health in the Magistrates’ court


An analysis of the law on fitness to plead and stand trial in the magistrates’ courts: Silas Lee reviews the key issues and provides some take-away points for defence representatives.


The practice and procedure regarding fitness to plead and stand trial in the Magistrates’ Court are unclear and often unused. Yet issues of fitness can arise at any stage, so advocates must be alive to the relevant principles in the Magistrates’ Court, even where cases appear destined for the Crown Court.

Precisely how a case reaches the point of a Magistrates’ Court fact-finding hearing and, whether such a hearing is necessary in the circumstances, is not straightforward. In the Magistrates’ Court the only available disposal following a fact-finding hearing is a hospital order or a guardianship order and, in many cases, such drastic action will not be appropriate. It is essential that the Court is not drawn into this process simply because it is the most well-trodden path. There are a number of important considerations to be addressed before doing so.

Statutory framework

The Crown Court procedure for determining fitness to stand to trial, as set out in the Criminal Procedure (Insanity) Act 1964, does not apply in the Magistrates’ Court.

The applicable statutory framework in the Magistrates’ Court is set down in the following provisions:

“Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have the power, on convicting him of that offence to make a Hospital or Guardianship order […] as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.”

Section 11(1) Power of Criminal Courts (Sentencing) Act 2000:

“If, on the trial by a magistrates’ court of an offence punishable on summary conviction with imprisonment, the court (1) is satisfied that the accused did the act or made the omission charged, but (2) is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him.”

The only available disposals under section 37(3) are a hospital order or a guardianship order, which may only be made if:

  1. the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—
  2. the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or
  3. in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
  4. the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

Limits of the statutory framework

It is significant that the above provisions do not set out a comprehensive procedure for the handling of fitness to plead and stand trial in the Magistrates’ Court. Rather, they establish a flexible framework in which a procedure can be adopted depending on the needs of the case. In particular, the above provisions do not address whether, or how, a Magistrates’ Court should reach the point of conducting a fact-finding hearing, and what information should be available to the court prior to undertaking such an exercise.

It has been suggested, such as within the CPS guidance, that the procedure, set out in R (P) v Barking Youth Court[2002] EWHC Admin 734, is first to determine whether the defendant did the act(s) alleged and, if so, to then consider, whether the case is one for an Order under section 37(3) MHA 1983.  However, this only applies once a number of preliminary issues have been addressed, such as whether the defendant is unfit to plead and dealing with allocation. Barking did not turn on these issues, as the defendant was a child with no right to elect trial in the Crown Court.

Allocation and fitness

In Lincoln (Kesteven) Magistrates Court [1983] 1 All E.R. 901, the defendant was not fit to participate in allocation. The question arose whether, in those circumstances, the justices could exercise their power under section 60 of the Mental Health Act 1959, the predecessor of section 37 of the Act of 1983.

In that case, there was no dispute that the defendant had assaulted the complainant. It was noted that:

“In our judgment the words of section 60(2) are clear. It gives the justices power in an appropriate case to make a hospital order without convicting the defendant. No trial is therefore called for. The circumstances in which it will be appropriate to exercise this unusual power are bound to be very rare, and will usually require, as in this case, the consent of those acting for the defendant if he is under a disability so that he cannot be tried. In our judgment this is just the sort of rare case which Parliament must have contemplated as justifying the justices having such a power. Whether they see fit to exercise it is a matter for them. Of course, in the unlikely event of the justices exceeding the proper limits of their powers, their actions would be subject to review.”

The above interpretation was considered in R. v Ramsgate JJ Ex p. Kazmarek, 80 Cr. App. R. 366 as follows:

“The learned Lord Chief Justice, in reading section 60(2) of the Act of 1959 considered the words “And the court would have power on convicting him of that offence, to make an order under subsection (1) above” to be simply identifying the relevant power. He did not read the subsection as being only applicable in circumstances where the magistrates would, in a case such as we have at present, pursuant to the election of the accused, be proceeding to a summary trial.”

The principle established is that the powers under section 37 can be exercised whether or not a defendant is capable of electing.

Medical evidence: some helpful case law

While the statutory framework suggests that expert medical evidence should be obtained following a fact-finding hearing, that does not mean no medical evidence is needed until that point. In fact, precisely the opposite is true. Where the issue of fitness is raised, the court need not move immediately to a fact-finding hearing. Before a court adopts the somewhat drastic s.37 measure, it must consider up-to-date medical evidence and hear submissions on the appropriate way of handling the case. If care in the community is a course of action supported by mental health services, then detention in hospital will often be undesirable and a s.37 process need not be pursued at all.

The principles of summary justice cannot be allowed to prevail over and above the interests of mentally unwell defendants and adjournments should be sought where needed, with support of the helpful case law below, particularly where time is needed to establish the appropriate disposal.

In Blouet v Bath & Wansdyke Magistrates’ Court [2009] EWHC 759 (Admin) Goldring J stated that:

“The approach which the district judge should follow is this. First, there should be up-to-date —and I emphasise the words ‘up-to-date’— medical evidence before him. If there is a possibility of a s.37(3) order being made, he will then try the issue in accordance with s.11(1) of the [2000] Act. If thereafter there arises the obligation to adjourn for further reports then that is what must happen.”

In R (Surat Singh) v Stratford Magistrates’ Court [2007] EWHC 1582 (Admin) [2007] 1 W.L.R. 3119 (paragraph 39-42), Hughes LJ stated:

“I am also satisfied that the magistrates’ court has the power, in an appropriate case, to try the issue of insanity and pronounce its conclusion upon it, without convicting or acquitting the defendant, provided that the conditions for making a hospital or guardianship order under section 37(3) are met. Equally, however, if satisfied that there is no purpose in resolving the issue of insanity, and if a section 37(3) order is going to be made, the court can deal with the case without trying that issue.

“If it is clear that no section 37(3) order is going to be possible on the medical evidence whatever happens, then in the absence of some other compelling factor the case must proceed to trial, so that if the defendant was insane, he is acquitted, and if he was not, he is convicted.

“Before embarking on a case in which section 37(3) may be applied, magistrates should make it clear that it is a possibility and should invite submissions upon the course to be adopted. In particular, careful consideration must be given to any reason advanced why the issue of insanity should be tried. Such an application should be resolved having regard to the interests of justice, which include, but are not limited to, justice to the defendant.

“The likely occasion for successive hearings in a potential section 37(3) case, or any case in which insanity is alleged, are such as to make it suitable for allocation to a district judge where such can conveniently be achieved.”

Key principles

With so much to consider, some key principles to take away about fitness to plead and stand trial in the Magistrates’ Court are:

  1. When charged with an either way offence, the defendant can, if possible, elect Crown Court trial such that the issue of insanity be determined under the Crown Court procedure. Similarly, the Magistrates’ Court could reject jurisdiction of the case.
  2. Even if the defendant is unable to consent to summary trial, or even where the defendant elects a Crown Court trial, the Magistrates can continue to determine whether a hospital order should be made.
  3. Before a fact-finding hearing is conducted, the Magistrates must consider the issue of fitness to stand trial with reference to contemporary medical evidence, and adjournments should be sought where this is required. The Magistrates need not determine the issue of fitness conclusively, although they may do so where necessary.
  4. When Magistrates are considering applying the s. 37(3) procedure, they must invite submissions on the appropriate procedure. Whether or not the defence consent to the making of a hospital order will be of significance to the Court in its considerations on how to proceed. The defence must therefore have sufficient evidence by this point to be able to make relevant submissions.
    1. If it is apparent that a hospital order will not be made in a given case, because it is not an appropriate disposal, it must proceed to trial. In such circumstances, if the defendant cannot be tried then it may be incumbent on the prosecution to discontinue proceedings.
    2. If proceeding as per s. 37(3), the court should conduct a fact-finding hearing. If it is found that the defendant did the act or omission, then the court can go on to consider whether a hospital order should be made. If it is not so found, then the defendant must be acquitted.
  5. The court must seek oral or written reports from two registered medical practitioners, who are approved for the purposes of section 12 of the MHA by the Secretary of State, pursuant to section 157 Criminal Justice Act 2003.
  6. in determining whether to make a hospital order. The defendant may be remanded for three weeks or bailed for four weeks to seek such reports.

There is clearly a great deal to be addressed by the parties and the court, prior to adopting a s.37 procedure. In particular, the fact that medical reports would be obtained under a s.37 process does not preclude the defence from seeking time to obtain such reports or any other medical evidence, including the opinions of community mental health teams or expert opinions, prior to any fact-finding hearing. This material will form the backbone of defence submissions to the court on whether the s.37 process is appropriate. If time is needed for this, it ought to be granted and the principles of speedy, summary justice must wait.

Silas Lee is a pupil at Carmelite Chambers, with a busy practice in the Crown Court, Magistrates’ Court and Youth Court.  He was the winner of the Blackstone’s National Criminal Advocacy Competition and is a Lincoln’s Inn Scholar. Prior to pupillage, Silas worked on the Infected Blood Inquiry and for Nottingham City Council in their response to the Independent Inquiry into Child Sexual Abuse.


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