Dementia, Fitness to Plead and the Janner Case

Posted by pt91 at May 11, 2015 04:45 PM |
Dr Tracey Elliott examines the legal process that applies when a defendant is deemed 'unfit to plead'

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The fact that a person suffers with dementia does not necessarily mean that they cannot be charged with a criminal offence or receive a fair trial. However, the position is different when they are ‘unfit to plead’ and unable to participate in the trial process.

An accused is not fit to plead if, based on medical evidence, they are unable to plead to the indictment, understand the course of the proceedings, instruct a lawyer, challenge a juror, or  understand the evidence in the case. If an issue in relation to unfitness to plead arises once an accused has been charged, then the procedure to be followed is laid down by the Criminal Procedure (Insanity) Act 1964 (as amended). The Act sets out a two-stage process: first a judge must determine (having considered evidence from at least two medical experts) whether the accused is ‘under a disability’. If the judge decides that the accused is unfit to plead, there will be a ‘trial of the facts’, with a jury merely determining whether they are satisfied that the accused ‘did the act’ with which he is charged.  If the jury decide that the accused did the relevant act, this does not amount to a determination of guilt, and the court’s options are restricted to measures designed to treat, rehabilitate and support the accused and, where necessary, to provide protection for the public.

The DPP has been criticised for her decision not to charge Lord Janner, but given the state of the medical evidence, was in a difficult position. The charging decision is made according to a two-stage test set out in the Code for Crown Prosecutors. First the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of success against the accused. This is not a determination of guilt, but an assessment of whether the prosecution is likely to be able to prove its case in court, and the DPP concluded that this part of the test was satisfied. However, the second part of the test is whether a prosecution is in the public interest. The DPP decided that, because of the medical evidence, it was inevitable that Lord Janner would be found to be unfit to plead and that it was not in the public interest to pursue a ‘trial of the facts’ because there was no prospect of recovery and no future risk to the public, so that even if the Crown’s case satisfied the jury, the outcome would be the absolute discharge of the accused.

Dr Tracey Elliott, Lecturer in Health Care Law

This article originally appeared in the Leicester Mercury on 6 May.

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