Unfitness for Trial in Scots Law
in Ronnie Mackay and Warren Brookbanks (eds), Fitness to Plead. International and Comparative Perspectives (Oxford University Press, 2018), 81-103.
33 Pages Posted: 19 Jul 2019
Date Written: 2018
The plea of unfitness for trial in Scots law advances the goal of ensuring that criminal trials should not proceed against anyone whose mental or physical condition makes it unsuitable for them to be subject to such a process. This chapter traces the development of the common law version of the plea, namely insanity in bar of trial. It then examines more recent reforms which considered the plea in the context of human rights and comparative law. These reforms have resulted in statutory formulation of the 3 key issues, namely the test or definition of the plea, the procedures to be used in determining the existence of the plea in a particular case, and the disposal options appropriate for people who have been found to be unfit for trial.
Keywords: law, unfitness for trial, Scots law, fitness to plead, examination of facts, burden and standard of proof, law reform, insanity defence, mental health disposals
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