Fitness to Plead

The law relating to fitness to plead is an increasingly important area of the criminal law. While criminalization may be justified whenever an offender commits a sufficiently serious moral wrong requiring that he or she be called to account, the doctrine of fitness to plead calls this principle into question in the case of a person who lacks the capacity or ability to participate meaningfully in a criminal trial. In light of the emerging focus on capacity-based approaches to decision-making and the international human rights requirement that the law should treat defendants fairly, this volume offers a benchmark for the theory and practice of fitness to plead, providing readers with a unique opportunity to consider differing perspectives and debate on the future development and direction of a doctrine which has up till now been under-discussed and under-researched.
The fitness to plead rules stand as an exception to notions of public accountability for criminal wrongdoing yet, despite the doctrine's long-standing function in criminal procedure, it has proven complex to apply in practice and has given rise to many varied legislative models and considerable litigation in different jurisdictions. Particularly troublesome is the question of what is to be done with someone who has been found unfit to stand trial. Here the law is required to balance the need to protect those defendants who are unable to participate effectively in their own trial, whether permanently or for a defined period, and the need to protect the public from people who may have caused serious social harm as a result of their antisocial behaviour. The challenge for law reformers, legislators, and judges, is to create rules that ensure that everyone who can properly be tried is tried, while seeking to preserve confidence in the fairness of the legal system by ensuring that people who cannot properly engage in the criminal trial process are not forced to endure it.

Ronnie Mackay is Professor of Criminal Policy and Mental Health at De Montfort University.
Warren Brookbanks is Professor of Law at Auckland University of Technology.

- 1: Ronnie Mackay and Warren Brookbanks: Introduction - 2: Ronnie Mackay: The Development of Unfitness to Plead in English Law - 3: Rudi Fortson: Unfitness to Plead in England and Wales: A Practitioner's View of a Plea in Evolution - 4: Miranda Bevan and David Ormerod: Reforming the law of Unfitness to Plead in England and Wales: A Recent History - 5: Gerry Maher: Unfitness for trial in Scots Law - 6: Gerry Ferguson: Unfit to Stand Trial: Canadian Law and Practice - 7: Warren Brookbanks: The Development of Unfitness to Stand Trial in New Zealand - 8: Ian Freckelton: Fitness to Stand Trial Under Australian Law - 9: Richard J. Bonnie: Fitness For Criminal Adjudication: The Emerging Significance of Decisional Competence in the United States - 10: Stephen J. Morse: Involuntary Competence in United States Criminal Law - 11: Piet Hein van Kempen: The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants: The Case of the Netherlands - 12: Alberto Cadoppi and Mattia Celva: Competency to Stand Trial in Italy - 13: Ian Freckelton and Magda Karagiannakis: Fitness to Stand Trial Under International Criminal Law - 14: Ronnie Mackay and Warren Brookbanks: Conclusion