Capacity to Stand Trial The Early Years

In many jurisdictions it is considered unjust for someone to stand trial if they are unfit to plead or lack the capacity to stand trial. In England and Wales, the concept dates back to the fourteenth century, according to Grubin (1996): it was thought that a criminal prosecution could not proceed against someone who had not entered a plea and it was recognised that defendants could be 'mute ofmalice' (i.e. deliberately silent) or 'mute by visitation of God' ('deaf' or 'insane'). The legal criteria for incompetence were laid down in the case of Pritchard, in 1836, who was accused of bestiality. As he was 'deaf-mute' he was considered unable to plead and was exempted from trial (Mackay, 1990b; Grubin, 1991a). The court in R v. Pritchard ((1836) 7 C&P 303) held that the accused must be able to plead and be 'of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to challenge a juror to whom he might wish to object and comprehend the details of the evidence' (Mackay, 1990b).

Nowadays, the criteria for judging capacity to stand trial vary from jurisdiction to jurisdiction. In England and Wales, 'fitness to plead' is judged by the court and is considered to be a function of five criteria (Grubin, 1991a; Mackay and Kearns, 2000):

• ability to understand evidence;

• understanding the court proceedings;

• ability to instruct a lawyer; and

• knowing that a juror can be challenged.

Occasionally these criteria are varied slightly and/or expanded (see James et al., 2001, below).

In the USA the well-known legal standard for determining fitness to plead or 'competency to stand trial' was given in the Dusky case (Dusky v. United States (1960) 362 US 402). The person must have 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and must have a 'rational as well as a factual understanding of proceedings against him' (Grisso, 1986). Since then, according to Grisso (1986), there have been a number of somewhat different lists of competencies, amplifying the Dusky criteria, provided by courts. For example, in the case of Wieter v. Settle in 1961 (193 F. Supp. 318 (WD Mo., 1961), quoted in Grisso, 1986) it was held that the person must comprehend that:

• he is in court, charged with an offence;

• a prosecutor will try to convict him;

• a lawyer is present to defend him;

• he will be expected to tell his lawyer the facts in relation to the alleged offence;

• the jury will decide on his guilt or innocence; and

• he has sufficient memory to relate what happened to him.

As Grisso (1986) pointed out, many States in the USA (though not all) required that the person also had a mental disability, in order to be judged not competent to stand trial. However mental disability alone was not sufficient to qualify anyone as not competent (i.e. the test was functional, not diagnostic). Canada has also had an 'insanity' requirement and, as Mackay (1990b) argued, this has led to difficulties in the past, in relation to the precise definition and limits of 'insanity'. The Canadian test for unfitness, however, has been very like the English one (Mackay, 1990b).

In many jurisdictions the issue of fitness to plead or competency to stand trial could be raised by the defence, the prosecution or the court and the judge could order the issue to be tried immediately (Grisso, 1986; Mackay, 1990b). In the USA and Canada there tended to be very large numbers of competency evaluations (for example, over 6000 in the USA for an estimated 25,000 defendants, according to Steadman et al., 1982), whereas there were far fewer in Scotland and England (Grubin, 1996; Mackay and Kearns, 2000). Studies in the USA and elsewhere have tended to show that people who are referred for competency evaluations are overwhelmingly male, often from minority ethnic groups, usually with poor education, a history of psychiatric hospitalisation, previous offences and an index charge of a violent offence (Nicholson and Kugler, 1991; James et al., 2001). Several studies have demonstrated that the presence of psychosis (including delusions, hallucinations, impaired memory, thought or communication and disturbed behaviour) raised the likelihood of a finding of unfitness or incompetency (Nicholson and Kugler, 1991; Mackay and Kearns, 2000; James et al., 2001). Nevertheless, as Grisso (1986) commented, the level of impairment required in relation to competency criteria was not really defined, so that it was always a matter of opinion when a defendant was not able to stand trial.

In the early years, if the defendant was found unfit to plead, the outcome in most jurisdictions was to require the defendant to be sent to hospital. In the USA, in the

1960s and 1970s, it was found that those ruled incompetent to stand trial tended to experience extremely long periods in hospital. For example, Hess and Thomas (1963) estimated that more than 50% of those found unfit in Michigan would never be released from hospital and McGarry (1971) found that, after being found incompetent to stand trial, more people had left a Massachusetts hospital by dying than by any other route.

Similarly in England and Wales and Canada, until recently, a finding of 'unfit to plead' led to compulsory hospitalisation for an indeterminate period, the intention being that those who recovered would be returned to court for trial (Mackay, 1990b; Grubin 1991a). However it transpired that, in both England and Canada as in the USA, this sometimes resulted in people being detained in hospital for very long periods without ever being able to establish their innocence, even when the original charge had sometimes been quite trivial (Savage, 1981; Grubin, 1991a). This especially applied to people with intellectual disabilities who, of course, were unlikely to 'recover' their fitness to plead. There seems to be no evidence that anyone, in the hospitals, even considered attempting to teach them about the criminal justice issues they had not grasped at the time of the court hearing. Thus, according to Grubin (1991a), there were 295 people who were found unfit to plead in England and Wales between 1976 and 1988. Ofthese, 23% were deemed to have intellectual disabilities, 58% schizophrenia, 8% had other psychoses, 3% had dementia, 2% were deaf and the remainder had a variety of diagnoses. A third of the original charges were for 'nuisance' or 'mild' offences and a number of defendants protested their innocence, yet all the defendants were sent to hospital for an indefinite period, since this was what the legislation (Criminal Procedure (Insanity) Act 1964) at the time required. Overall less than half of those detained (46%) were considered to have regained fitness to plead and most of these proceeded to trial. Of those (54%) who appeared to remain unfit, many stayed in hospital for a considerable time (an average of six years) and they were disproportionately likely to have been diagnosed as having intellectual disabilities (Grubin, 1991b).

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