ABSTRACT
In all jurisdictions signifi cant numbers of mentally ill and cognitively impaired individuals pass through the criminal justice system. In a proportion of these cases, psychiatrists and psychologists will be asked to advise upon whether the defendants are capable of fairly standing trial. Whilst a number of clinical tests do exist to assist clinicians, and, in turn, lawyers, the approach is largely ad hoc, leading arguably to inconsistent and arbitrary decision making (Mackay, 2007; Akintunde, 2002). And even if clinicians can agree on their fi ndings (James et al, 2001), they may disagree on how these fi ndings relate to the legal test; or they may be asked to speculate many years after about a defendant’s condition at the time of an earlier trial. This is discussed further below. What is evident is that many unfi t defendants end up in the penal system following conviction. The numbers revealed by Singleton et al (1998) on
learning disability alone in the prison population are worrying. In July 1997 the prison population was 61,944: fi ve per cent of the male sentenced population (then at 46,872), would, according to the authors, have fallen into the lowest category on the Quick Test of intellectual functioning, that is at 25 and below, which is the approximate equivalent of 65 on the IQ scale (Ammons and Ammons, 1962). Thus, there would have been some 2,340 men in the sentenced population with the most serious of learning disabilities. How many of these men came to plead guilty in either the Crown or Magistrates Court is hard to determine, but their mere presence in the prison population should raise concerns. And, in particular, raise concerns about the viability of the test for unfi tness to plead; for, in 1997, there were only 50 fi ndings of unfi tness to plead (Mackay et al, 2007).4
