Rule 25.10 Defendant unfit to pleadI1

England and Wales As made

(1)

This rule applies where—

(a)

it appears to the court, on application or on its own initiative, that the defendant may not be fit to be tried; and

(b)

the defendant has not by then been acquitted of each offence charged by the indictment.

(2)

The court—

(a)

must exercise its power to decide, without a jury, whether the defendant is fit to be tried; but

(b)

may postpone the exercise of that power until immediately before the opening of the defence case.

(3)

Where the court determines that the defendant is not fit to be tried—

(a)

the court must exercise its power to appoint a person to put the case for the defence, taking account of all the circumstances and in particular—

(i)

the willingness and suitability (including the qualifications and experience) of that person,

(ii)

the nature and complexity of the case,

(iii)

any advantage of continuity of representation, and

(iv)

the defendant’s wishes and needs;

(b)

the court must select a jury, if none has been selected yet; and

(c)

rule 25.9 (Procedure on plea of not guilty) applies, if the steps it lists have not already been taken, except that—

(i)

everything which that rule requires to be done by the defendant may be done instead by the person appointed to put the case for the defence,

(ii)

under rule 25.9(2)(a), the court must explain to the jurors that their duty is to decide whether or not the defendant did the act or made the omission charged as an offence, not whether the defendant is guilty of that offence, and

(iii)

rule 25.9(2)(f) does not apply (warning of consequences of defendant not giving evidence).

(4)

Paragraphs (5) and (6) of this rule apply where—

(a)

the jury decides that the defendant did the act or made the omission charged as an offence;

(b)

the court makes a hospital order and a restriction order;

(c)

while the restriction order remains in effect the Secretary of State receives medical advice that the defendant can properly be tried and decides to remit the defendant to the Crown Court for trial; and

(d)

the Secretary of State so notifies the court officer.

(5)

The prosecutor must serve on the court officer the medical report or reports by reference to which the defendant has been assessed as properly to be tried.

(6)

The court must give directions—

(a)

for the return of the defendant to the court, which initial directions may be given—

(i)

without a hearing, or

(ii)

at a hearing, which must take place in the defendant’s absence; and then

(b)

for the future conduct of the case, which further directions must be given—

(i)

at a hearing, and

(ii)

in the defendant’s presence.

(7)

Directions under paragraph (6)(a)—

(a)

may include directions under rule 3.10 (Directions for commissioning medical reports, other than for sentencing purposes) for the commissioning of any further report required by the court;

(b)

may set a timetable providing for the date by which representations about the future conduct of the case must be served; and

(c)

must set a date for a hearing under paragraph (6)(b).

(8)

At the hearing under paragraph (6)(b)—

(a)

rule 3.21 (Pre-trial hearings in the Crown Court: general rules) applies even if a plea and trial preparation hearing has been conducted in the case before; and

(b)

among other things, the court must decide whether to grant or withhold bail.

[Note. See sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964^f1.

Under section 4 of the 1964 Act, the court must not determine the defendant’s fitness to be tried except on the evidence of two or more registered medical practitioners, at least one of whom is approved as having special experience in the diagnosis or treatment of mental disorder. Under section 4A, if satisfied that the defendant did the act or made the omission charged as an offence the jury must make a finding to that effect, and if not so satisfied must acquit the defendant.

Under section 5A of the 1964 Act^f2, where a hospital order and a restriction order have effect, and after consultation with the responsible clinician, the Secretary of State may remit a defendant for trial if satisfied that the defendant can properly be tried.]

Annotations

Commencement

I1: Rule 25.10 in force at 6.10.2025, see Preamble

Footnotes

f1: 1964 c. 84; sections 4 and 4A were substituted for section 4 as originally enacted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25), and amended by section 22 of the Domestic Violence, Crime and Victims Act 2004 (c. 28).
f2: 1964 c. 84; section 5A was inserted by section 24 of the Domestic Violence, Crime and Victims Act 2004 (c. 28), amended by section 15 of the Mental Health Act 2007 (c. 12) and repealed for certain purposes by paragraph 114 of Schedule 2 to the Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9).