Fitness to plead is another fundamental concept within England

Fitness to plead is another fundamental concept within
England and Wales’ criminal justice system. Depending on the jurisdiction, the
title changes, however all is concerned with the defendant’s mental state at
the time of the trial and that he/she is mentally capable to take the stand (Shah, 2012). The basis of
assessing fitness in England and Wales is the Pritchard criteria. R v Pritchard considers if
the defendant has the sufficient intellectual ability to comprehend the course
of proceedings at trial, that he can effectively understand the details of the
evidence for and against, and that he can challenge or object (Shah, 2012).
Hence, the test is intellectually based and assesses only the defendant’s level
of comprehension and communication
which causes issues for psychologists, and defendants within the court
room. For example, research has identified that the Pritchard criteria is
unsatisfactory as less than a third of defendants actually have intellectual
impairment (Exworthy, 2006). Consequently, formal findings of fitness under
Pritchard are extremely rare. For example, between 1997-2001 in England and Wales there were only 66
findings per year (shah, 2012). While these rates are troublingly low, and
considering Mackay, Mitchell & Howe’s (2007) finding that 10% of defendants
in prison showed common signs of psychotic illness less than 12 months later,
it is logical to suggest Pritchard relies predominantly on intellectual
abilities and fails to consider mental illness (Exworthy, 2006). For example,
the case of R v Davies (1853) was the first to identify that impairments can
arise due to psychotic illness which affect fitness to plead. Davies was
considered by the Jury to be ‘mad’ based on his appearance and behaviour and
was deemed unfit to plead (Shah, 2012). However, the distinction portrayed by
Davies between having learning disabilities i.e. being able to understand the
conducting of a defence, and being mentally ill having i.e. the ability to instruct
legal advisors is now unknown. Instead, the Pritchard criteria demonstrates
that a mentally ill defendant can be both psychotic and fit to plead because
he/she can demonstrate intellectual ability (Shah, 2012). Hence, the Pritchard
criteria consults old case law in which ‘not of sane mind’ is consistent with
‘insanity’ which included both mental illness and mental impairment as one
(Rogers et al, 2008)

Today, this is extremely outdated, as there is a clear
difference between these two terms.  

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Considering research has also identified competence and
psychosis to be independent of IQ (Vijoen, Roesch & Zapf, 2002), it is no
surprise that tension is identified between psychology, and the statue law for
FTP. Consequently, Psychologists render the validity of fitness to plead
criteria in numerous ways. For example, the Pritchard criteria as aforementioned is based upon sensory
impairment and learning disabilities, even though most its application is required
by defendants who suffer psychosis such as schizophrenia and psychotic mental
illness (Shah, 2012). As a result, psychiatric reports sometimes refer to
additional criteria to apply their judgement regarding fitness to plead e.g. if
the defendant is capable of giving evidence (Shah, 2012). Psychologists are
also inconsistent in their application of the Pritchard criteria. For example,
in North America the FIT-R has been developed, and the MacCAT-FT in England and
Wales has been applied to assist in the assessment of FTP. Additionally,
Scotland holds a broader interpretation of FTP criteria, HMA v Wilson. The
Scottish law commission (2004) considers anyone ‘incapable by reason of mental
or physical condition of participating effectively in trial’ is unfit to stand
trial. This difference, especially between England and Wales’ criteria has
accounted for a tenfold increase in frequency of unfitness determinations
(Rogers et al,. 2008). Thus, is the threshold too low in Scotland, or is it too
high within other jurisdictions? Regardless, an evaluation of criteria is
required, potentially in line with the UK Law commission 2016. This commission
will require that the defendant to have the capacity to make effective
decisions and participate within their own trial, and defence. It will also
consider if the defendant is, or can be impeded by delusions or severe mood
disorders. Thus, for FTP criteria to be useful for psychologists, it arguably
requires psychological input, which may in turn reduce the conflicts regarding
the issue. Overall, this suggests there is a lack of clarity between expert
assessors regarding FTP criteria (Shah, 2012). Although this does not propose
double sided conflict between
the two disciplines, it suggests that FTP is a grey area in which psychology
and the law would benefit from a more collaborative and interdisciplinary
approach. For example, at present the judge has precedence over deciding if the
trial can or cannot go ahead upon the basis of fitness to plead. If fitness for
trial is the outcome, despite the psychologist’s recommendation, a ‘trial of
facts’ is held (Ogloff & Cronshaw, 2001). When this is the outcome, the contrast between
psychology and the law is apparent as previously discussed. In cases where the
result is the ‘trial of fact’ I would suggest that the prosecution should be
required to prove the accused intended to break the law. Alternatively, the
criminal justice systems approach needs reform which will modernise FTP law in
line with current psychiatric thinking (Exworthy, 2006). In turn this will
arguably make it more effective, accessible and fair for vulnerable defendants
whilst providing greater protection for the public (Denno, 2012).


Within the Scottish court of criminal law, the onus of proof
is on the prosecution to prove their case ‘beyond reasonable doubt’. From this
jurisdiction, the law can be regarded as ideographic because the facts and data
gained for the purpose of the trial is based upon the accused and his/her
circumstances (Day, 2013). These in turn form the basis for the presumption of guilt (Day, 2013). On the
contrary, psychology is nomothetic whereby data is gained through group and
empirical research (Roberts, 2015). Precisely, it considers general principles,
relationships, and patterns that may explain the given context (Roberts, 2015).
This is another factor that establishes the conflicting ideologies of
psychology and the law as the validity
of expert testimony is questioned by the court. For example, because the
empirical basis for the testimony may lie within group data, or from laboratory
findings, the court can disregard the information as it will not assist the
trier of fact as it is not generalizable to the real-world. (Edkins et al,.
2017). Lawyers themselves can also assist against the expert witness as they
will emphasise, if necessary, how their client differs from the certain
stereotype, or that one cannot generalise (Boudreau & McCubbins, 2009).
Thus, lawyers can also ‘infer’ or ‘imply’ things which isn’t necessarily fact,
which it commonly criticises scientific research for. Therefore, does the legal
profession really require factual evidence prove ‘beyond reasonable doubt’?
Arguably, the court of law claims to be based on certainty, but it is in fact
not. While there is some probabilistic threshold, above which a decision is
considered ‘certain’, it is blind to psychological fact (Cotanzo and Krauss,
2015). That is, legal decision making can construct both incorrect, and strong
beliefs (certainty) regarding the decision to acquit or convict (Cotanzo and
Krauss, 2015). Ultimately, the law is responsible for establishing if something
happened or not. However, to understand this certainty, is to understand the nature of psychological science. To
acquire certainty is to misunderstand psychological science ((Cotanzo
and Krauss, 2015). Thus, the relationship between these two
disciplines is very complex. For instance, there is no doubt that psychology
and the law have overall conflicting ideologies. Yet, psychology is a
very broad discipline as psychologists also assess defendants individually and
establish ‘the identity of criminal behaviour with a certain state of mind
(Marten, 2014) and on this basis can arguably also be considered ideographic. This,
whilst also considering that both disciplines can never be 100% certain,
emphasises that regardless of their distinct principles, there is some
similarity between the two.

To establish this assumption, let’s consider that psychologists
broadly understand the psychological impact trauma, from previous events such
as sexual assault/abuse, and how it can negatively impact the mind and
behaviour (Fivush & Edwarda, 2004). For instance, individuals who have
experienced historical abuse tend to have high prevalence rates of
Post-Traumatic Stress Disorder (PTSD) (Fivush & Edwarda, 2004). PTSD and
traumatic experiences impact how an individual retains, stores, processes and retrieves
memories, and has a profound impact on how these individuals feel they can
engage and interact with the world (Connolly & Don-Read, 2003). Not
surprisingly, a lack of cohesion follows,
and exists between what psychologists know, and what is expected of
defendants within the criminal justice system. For example, from previous
cases, it has been identified that the criminal justice system expects reporting’s
to the police to be made instantly, despite the understood impact PTSD, fear
and shave have over behaviour (Connolly & Don-Read, 2003. Additionally, a
detailed, coherent, and precise account of the event is expected, regardless of
the common understood effects trauma has on memory. For instance, it is frequently
found that many victims do not come forward until years after the event, which
prevents a challenge to the legal system (Darley, 2001). Within the Civil court
of law however, collaboration between psychology and the law can now be identified.
For example, the court now reconciles with the fact that repression of memory,
fear/shame etc. are factors which increase the time bar to reporting crime. In
Scotland, the Limitation (Childhood Abuse) (Scotland) Act 2017was
passed which removed the limitation period in respect of damages or personal
injuries resulting from childhood (under 18 years). Thus, awareness of
provision, on behalf of the courts is suggestive that the law now has a better-informed
understanding of the well-researched psychological responses to trauma. the
policy memorandum can also be regarded as an attempt to understand the
prolonged psychological damage, and difficulties faced by survivors, by
delivering justice to victims. Although, this has only been found within the
civil court, historical abuse is still an area of conflict within criminal law
as late reporting can be referred to by the defence as the defendants
deceitfulness (Feigenson, 2010). Yet, it is a stepping stone which has reduced
the tension within and out the courtroom, and arguably provides more proof
regarding the ‘balance of probabilities’, while helping society from both ends.



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