Commentary First Group of Parts – Discipline Part 7- Trial by Court Martial Section 166: Fitness to stand trial
331.Subsections (1) to (4) provide that on a trial by Court Martial the issue of whether the defendant is fit to stand trial must, subject to subsections (5) and (6), be decided as soon as it arises, and is an issue to be determined by the judge advocate alone. For the purposes of the Act, a person is unfit to stand trial if he is suffering from such a disability that apart from the provisions of the 1964 Act, it would preclude his being tried on indictment in England and Wales.
332.Subsection (5) provides that the judge advocate may postpone consideration of the defendant’s fitness to stand trial to the opening of the defence case if it is expedient to do so and in the defendant’s interest, and subsection (6) provides that if the defendant is found not guilty before that issue is considered, it shall not be determined.
333.Subsection (7) provides that a judge advocate may only determine whether a defendant is fit to stand trial after having considered the written or oral evidence of two or more registered medical practitioners, at least one of whom must be duly approved for the purposes of section 12 of the Mental Health Act 1983 (“the 1983 Act”).