The interpretation and application of the right to effective participation

DOI10.1177/1365712718780800
Publication Date01 October 2018
AuthorAbenaa Owusu-Bempah
Date01 October 2018
SubjectArticles
Article
The interpretation
and application of the right
to effective participation
Abenaa Owusu-Bempah
London School of Economics and Political Science, London, UK
Abstract
Defendants have long held rights to participate in their criminal trials, including the right to
effective participation. However, the precise meaning and scope of this right is unclear, and in
practice the extent to which defendants can be said to participate effectively in criminal pro-
ceedings is often limited. This article examines the definition and uncertain scope of the right to
effective participation. It also examines the narrow way in which the right has been applied by
the courts, including a judicial willingness to reject medical opinion and an optimistic approach
towards the effectiveness of special measures. It argues that there is a need for a clearer and
more comprehensive definition of ‘effective participation’ and a more rigorous and medicalised
approach to determining whether defendants can participate effectively, to ensure compliance
with Article 6 of the European Convention on Human Rights and create legal certainty.
Keywords
criminal procedure, effective participation, fitness to plead, right to a fair trial, special measures,
vulnerable defendants
Introduction
In the case of SC vUK,
1
the European Court of Human Rights provided a description of the defendant’s
right to participate effectively in their criminal trial. Yet, more than 10 years later, the extent to which
defendants can be said to participate effectively in criminal proceedings is often limited (see Jacobson
et al., 2016; Johnston et al., 2016). Many factors operate to alienate, exclude and intimidate defendants,
causing a lack of engagement or understanding. These factors include the ritual and formality of the
courtroom (see Kirby, 2017), the defendant’s position in the dock (see Justice, 2015; Mulcahy, 2013) and
complex procedures and legal language (see Jacobson et al., 2016). There have been calls for
Corresponding author:
Abenaa Owusu-Bempah, London School of Economics and Political Science, Houghton Street, London, UK.
E-mail: a.owusu-bempah@lse.ac.uk
1. (2005) 40 EHRR 10.
The International Journalof
Evidence & Proof
2018, Vol. 22(4) 321–341
ªThe Author(s) 2018
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DOI: 10.1177/1365712718780800
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participation to be encourag ed through less formal, and more relatable, criminal justice processes,
focused on creating a less intimidating and iso lating environment for defendants (see Ki rby et al.,
2014). In practice, the focus has been on improving the experience of defendants who are categorised
as ‘vulnerable’. Significant steps can now be taken to support and facilitate the participation of vulner-
able defendants, including: ground rules hearings to determine the appropriate treatment of vulnerable
defendants (see Cooper et al., 2015); adjustments to style and approach to questioning (see Henderson,
2014, 2016); court adaptations, such as removal of wigs and gowns, frequent breaks and allowing the
defendant to sit with a supporter, as set out in the Criminal Practice Directions 2015;
2
in ‘rare’ cases, an
intermediary can be appointed to assist the defendant while giving evidence;
3
and there is provision for
some vulnerable defendants to give evidence through live-link.
4
The development of special measures
and trial adjustments for vulnerable defendants is to be welcomed, given the prevalence of communi-
cation difficulties, learning disabilities and mental health problems among those who come into contact
with the criminal justice system.
5
However, the potential for meaningful engagement of all defendants
continues to be limited by an uncertain scope and restrictive application of the right to effective
participation.
The term ‘effective participation’ is frequently employed by practitioners, policy-makers and aca-
demics, but often with little or no explanation of what it means to participate effectively in criminal
proceedings. In fact, with the exception of the Law Commission’s publications on fitness to plead (Law
Commission, 2010, 2014, 2016a), the concept of ‘effective participation’ has received little scrutiny
since the case of SC vUK. This is surprising and unfortunate, not only because there is increasing
awareness of the need to assist vulnerable people to participate in court proceedings, but also because
there are plans to modernise court proce edings through greater use of virtual hearings, which will
undoubtedly have an impact on defendant participation.
6
Recent research on pre-trial and sentencing
hearings has detailed the way in which the use of video links can undermine the defendant’s ability to
communicate with their lawyers and the court (Transform Justice, 2017). The prospect of reforms that
could hinder participation, at a time when much effort is being made to facilitate participation, means
that it has become more important than ever to examine the right to effective participation.
This article explores the current definition and scope of the right to effective participation, as
guaranteed by Article 6 of the European Convention on Human Rights (ECHR) and as applied by the
courts in England and Wales in the context of the contested criminal trial.
7
The first part of the article
traces the development and meaning of the right. It highlights two particular areas of confusion and
2. Criminal Practice Directions 2015 [2015] EWCA Crim 1567 (CPD), General Matters 3G: Vulnerable Defendants.
3. CPD, 3F.13.
4. Youth Justice and Criminal Evidence Act 1999 (YJCEA), ss 33A.
5. Research indicates that between 20%and 30%of offenders have learning difficulties or learning disabilities that interfere with
their ability to cope within the criminal justice system (see Loucks, 2007: 1). Communication difficulties are most prevalent
amongst children, with over 60%of children who offend having communication difficulties (see Talbot, 2012: 1). In respect of
mental health, a recent report by JUSTICE, citing the available research, notes that ‘an estimated 39%of people detained in
police custody and an estimated 29%of those serving community sentences, have a mental health issue ...around 60%of
prisoners have personality disorders, compared to 5%of the general population; 11%of those serving community sentences
have psychotic disorders compared to 1%of the general population; and 76%of female and 40%of male remand prisoners have
a common mental health disorder’ (see Justice, 2017: 11–12).
6. The Prisons and Courts Bill 2016–17, which included proposals for online courts and virtual hearings, was scrapped as a result
of the 2017 general election. However, there are plans to introduce new legislation to modernise the courts system (see Queen’s
Speech 2017, available at www.gov.uk/government/speeches/queens-speech-2017 (accessed 27 April 2018)). See also the
recently published consultation paper on court and tribunal estate reform, in which it is stated that virtual hearings will continue
to be tested and developed (Ministry of Justice, 2018).
7. The right to effective participation operates from the first stages of involvement in a criminal investigation and, in particular,
during any questioning by the police (see Panovits vCyprus [2008] 27 BHRC 464 at [67]). Arguably, it should also apply to
post-conviction hearings. However, as the focus of this article is the interpretation of ‘effective participation’, rather than the
stages at which the right applies, it is only necessary to consider the contested trial, which is the focus of the relevant case law.
322 The International Journal of Evidence & Proof 22(4)

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