Laws on unfitness to stand trial and the UN Convention on the Rights of Persons with Disabilities: Comparing reform in England, Wales, Northern Ireland and Australia

The laws on unfitness to stand in criminal trials have not been examined in great detail by scholars since the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) in 2008. This is perhaps surprising given the considerable law reform activity on unfitness to stand trial laws in a number of common law countries during this period. After all, persons with disabilities are more likely to be deemed unfit to stand trial. Indeed the aim of rules on unfitness to stand trial is to prevent disadvantage flowing from mental impairments. However, the consequence of an unfitness determination in criminal trials can result in a person being detained in a prison, psychiatric setting or being subject to a coercive supervision order for longer periods than if there had been conviction and maximum sentencing. Equally, there remain defendants who do not meet the definition of unfit to stand trial yet still appear neither to understand or meaningfully participate in proceedings against them. A key recommendation of law reform agencies to prevent this discrimination in recent years is to introduce functional assessments of mental capacity to replace out-dated standards for judging unfitness to stand trial. Yet paradoxically, this conclusion runs counter to the CRPD, as interpreted by the UN Committee on the Rights of Persons with Disabilities (‘CRPD Committee’), which calls for the introduction of alternative frameworks for ensuring equal recognition before the law, access to justice and the right to liberty and security of the person for people with disabilities. Law reform activity in England, Wales, Northern Ireland and Australia will be drawn upon to support the discussion. This paper seeks to clarify the major issues as a first step in reconciling the sometimes conflicting reform trends in domestic and international human rights law regarding unfitness to plead laws.