The interpretation and application of the right to effective participation

Abstract

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).

‘I am not beholden to anyone… I consider myself to be an officer of the court’: A comparison of the intermediary role in England and Wales and Northern Ireland

“…The availability of intermediaries for defendants is premised on the right of effective participation in criminal proceedings pursuant to Article 6 of the ECHR. 35 The scope of this right is, however, uncertain and raises issues in relation to the intermediary and the extent of their involvement in proceedings (Owusu-Bempah, 2018). The ability of judges to make ‘full trial’ intermediary appointments in England and Wales suggests that the right to effective participation is, at least in theory, better protected than in Northern Ireland.…”

“…On the other hand, in cases where the defendant is unable to hear or be present, the courts have found participation by proxy to be sufficient so long as they can instruct and adequately communicate with their legal representatives. 38 Owusu-Bempah (2018: 13) questions whether such ‘effective participation by proxy’ is possible if the defendant is legally represented but cannot communicate their wishes and instructions to their lawyer. In the recent case of TI v Bromley Youth Court , the High Court recognised the highly individualised nature of the right to effective participation and held that a defendant who was able to give basic instructions to his solicitor was not necessarily able to ‘engage satisfactorily in the trial process’.…”

Reported communication challenges for adult witnesses with intellectual disabilities giving evidence in court

“…A defendant's right to effective participation in their own hearing is enshrined in legislation through Article 6 of the European Convention on Human Rights (ECHR). However, the lack of clarity for application of this legislation has been brought into question, highlighting a need for further explanation and definition in court practice (Owusu-Bempah, 2018). Owusu-Bempah describes the European Court's description of effective participation in SC versus UK as 'the most comprehensive statement of effective participation that has been provided by the Courts' (Owusu-Bempah, 2018: 325).…”

Modernising Fitness to Plead

“…For over a century it has been held that defendants are entitled to be not only physically present at their trials but also able to play an active role. 6 In the 1994 case SC v UK , 7 effective participation was formally recognised as a requirement for a fair trial under the European Convention on Human Rights (Article 6). Unlike the Pritchard test for fitness, there is no test governing what effective participation means in practice.…”

“…The threshold for unfitness is seen as higher than the inability to participate effectively, with the former focusing on intelligence, understanding and communication and the latter considering more nuanced decision-making abilities such as weighing up information. 6 In the youth court, consideration of effective participation is more common due to lack of statutory unfitness-to-plead provisions beyond the Crown Court. 10 Yet the fitness-to-plead framework offers more protection to vulnerable defendants than that of effective participation.…”