The assessment

The expert’s position

An expert instructed in criminal proceedings owes a duty to the court that overrides any obligation to the party paying the fee. That duty is set out in Part 19 of the Criminal Procedure Rules and it governs everything that follows: the opinion must be the expert’s own, it must be within the expert’s field, and it must state the material on which it rests and any qualification on it.

This matters more in fitness cases than in most. The clinical question and the legal question are not the same, and the expert’s task is not to decide whether the defendant should stand trial. It is to describe the defendant’s mental condition, explain how that condition bears on each limb of the test, and leave the determination where it belongs, with the judge.

A report that announces a conclusion without showing the reasoning from symptom to limb gives the court nothing to work with, and is easily dismantled in cross-examination.

When to instruct

Early. If there is a real question about whether a client can understand the charge, give instructions, follow proceedings or give evidence, an assessment is better obtained before the case advances. Fitness is best assessed at the time: the Court of Appeal in R v Erskine [2009] EWCA Crim 1425 observed that it will rarely be possible to reconstruct unfitness after the event. Early instruction also leaves time to consider whether an intermediary or other adjustments to support effective participation would enable the defendant to meet the demands of the proceedings. That question may be central to the eventual fitness determination and should be considered before concluding that a difficulty necessarily amounts to unfitness.

Pressing on towards sentence to protect the guilty-plea discount is not a reason to leave the question unasked. In R v Ismael [2024] EWCA Crim 301 the defence were criticised for doing exactly that, and the convictions of a defendant who had been unfit when he pleaded were quashed. As the Court of Appeal put it, the case should never have reached sentence.

What the assessment involves

1. Review of the papers

   The indictment, the prosecution case summary, witness statements, any police interview record or transcript, custody records, and the defence proof of evidence. Police interviews are often the single most informative document, because they show the defendant communicating under pressure before any question of fitness arose.

2. Records

   GP records, psychiatric and community mental health records, hospital discharge summaries, prison healthcare notes, and where relevant educational psychology and social services records. Historical records frequently establish a developmental or cognitive picture that the current presentation alone would not reveal.

3. Clinical interview

   A full psychiatric history and mental state examination, conducted wherever the defendant is – prison, secure or general hospital, a solicitor’s office, the community, or remotely where circumstances require it. More than one attendance is sometimes necessary, particularly where the defendant is acutely unwell or where the presentation fluctuates.

4. Functional enquiry against each limb

   The substance of the assessment. Each limb is tested directly rather than inferred: what the defendant understands the charge to be, what they understand the available pleas to mean, whether they can convey their account, whether they can follow what is said and communicate relevant comments to their lawyers, and whether they are capable of giving intelligible evidence when questioned, including under cross-examination. The demands of the particular trial – its length, complexity and the nature of the evidence – form part of that enquiry.

5. Cognitive and psychometric testing where indicated

   Formal assessment of intellectual functioning, memory or comprehension, arranged where the clinical picture suggests it would assist. Testing supports the opinion; it does not replace the functional enquiry.

6. Consideration of exaggeration or feigning where relevant

   The assessor should remain alert to the possibility that a presentation is exaggerated, inconsistent or deliberately produced. Where that is a material possibility it should be addressed explicitly, by examining consistency across the interview, records, previous accounts, observed behaviour and other sources. It should not be treated as a mandatory separate finding in every fitness report, nor should either good or bad faith simply be assumed.

7. Report

   Written to Criminal Procedure Rules standard, with the declaration and statement of truth the Rules require.

How particular conditions, from intellectual disability to psychosis and autism, engage each limb is set out in Conditions and fitness.

What the report contains

A fitness report that is useful to the court sets out, in order: the instructions received and the questions asked; every source of information relied on, with dates; the defendant’s psychiatric, medical, developmental and forensic history; the mental state on examination; and then the opinion.

The opinion section is where reports most often fall short. It should address each limb of the test in turn, state the conclusion on that limb and the reasoning behind it, and identify where the evidence is incomplete or where the expert’s view is finely balanced. It should also deal with matters the court will need whatever the finding:

• whether the defendant has a mental disorder within the meaning of the Mental Health Act 1983, and if so its nature and degree;
• whether unfitness, if found, is likely to be capable of remedy, by what treatment and over what period;
• if the defendant is fit, what adjustments would secure their effective participation – an intermediary, breaks, simplified questioning, or the timing of the hearing;
• where a disposal under section 5 of the Criminal Procedure (Insanity) Act 1964 may become relevant, the nature and degree of any mental disorder, whether hospital treatment is clinically appropriate, whether appropriate medical treatment is available, and what can realistically be delivered, including the practical availability of admission;
• any risk considerations bearing on the disposal.

On the question of adjustments. Most defendants assessed for fitness turn out to be fit. A report that stops at that finding has answered the question but not served the case. Identifying what a vulnerable but fit defendant needs in order to participate is frequently the most valuable part of the exercise.

What to send with an instruction

Once the decision to instruct has been taken, the assessment goes faster and the report is stronger where the following arrive together:

• the charges and a summary of the allegation;
• the defendant’s details and current location (custody, bail or hospital);
• relevant background – psychiatric history, learning disability, brain injury, autism or other condition;
• existing medical, psychiatric, psychological and educational records, and any previous reports;
• the specific questions to be addressed; and
• the procedural timetable and any deadlines.

Other instructions accepted

Fitness to plead is the focus of this site, but instructions are accepted across the range of psychiatric questions arising in criminal proceedings:

• psychiatric reports for sentence, including recommendations under the Mental Health Act 1983;
• diminished responsibility in murder cases;
• insanity and automatism;
• effective participation and vulnerable defendant issues;
• risk assessment, including structured professional judgement instruments;
• mental capacity;
• appeals against conviction or sentence where fresh psychiatric evidence is relied upon.