The Importance of a Defendant’s Right to Effectively Participate in their Criminal Proceedings.

Introduction

The extent to which a defendant can effectively participate in their own criminal proceedings in England and Wales has been a topic of scholarly debate from as early as the nineteenth century, highlighted by this passage extracted from French academic observer, Cottu:

‘In England, the defendant acts no kind of part: his hat stuck on a pole might without inconvenience be his substitute at the trial.’

Though this issue is prevalent in academic discourses, the debate remains largely ineffective in influencing policy and legislation. Traditionally, the understanding of a defendant’s participatory rights may be limited to the defendant simply being present during the trial; to hear the evidence being put against them. However, this has progressed to reflect the role of effective participation as an essential component in delivering justice. This article will outline what is meant by participatory rights, how these are currently protected in English law, and how effective this legislation is in reflecting the importance of them. For the purpose of this article, the terms ‘meaningful’, ‘active’, and ‘effective’ in the context of defendant participation are used interchangeably by academics and will be treated as such here. The term effective participation is frequently employed by legal commentators in connection to participatory rights, yet any precise or specific definition is limited within policies and legislation. To explore this concept in more detail this article will start by reviewing definitions offered by academics and the courts. 

What is Effective Participation?

Article 6 of the European Convention on Human Rights (ECHR) upholds a defendant’s right to a fair trial, which includes various participatory rights essential for meaningful engagement in criminal proceedings. While Article 6 does not explicitly reference effective participation, several rights it protects imply support for this principle. For example, the right to be present at one’s trial. As emphasised by Owusu-Bempah, this is a form of passive participation, as it does not require contribution from the defendant, only their presence. For indictable offences, presence is mandatory, it could be argued this does not qualify as a right, but similarly, this obligation could be in best interests of the defendant, thus inferred as a right. Article 6 also protects a defendant’s right to challenge the prosecution’s case, this right is most often reflected through the defendant instructing their counsel. The ability of a defendant to instruct their counsel on how they wish their defence to be presented is an active form of participation, as counsel must act in the best interests of their client. 

Although it is clear that Article 6 indirectly confers a defendant’s participatory rights, this framework has been heavily critiqued for its ambiguity, potentially falling short of supporting meaningful participation. This is highlighted in the leading European Court of Human Rights judgement on this area, SC v UK, which provides the most comprehensive definition of effective participation:

‘‘effective participation’ in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary, with the assistance of, for example, an interpreter, lawyer, social worker, or friend, should be able to understand the general thrust of what is said in court.”

The judgement of SC v UK clearly defines what is to be understood of effective participation. It requires that there is to be sufficient comprehension of the defendant in relation to the proceedings, and for them to grasp the gravity of consequences which may arise. It has been submitted that the definition may lead to inconsistent application. The judgement lacks any type of criteria, threshold or legal test being imposed to hold courts to a certain standard to ensure effective participation is being maintained. In other words, it offers no measurement of how effective participation is to be achieved, perhaps it assumes that each court will take the reasonable steps independently. The lack of a tool or test to uphold accountability does not reflect the importance of effective participation. Moreover, it does not account for the subjectivity of each individual, it has been argued that the courts should be required to take each defendant’s individual needs into consideration when determining if they are comprehending proceedings. The question follows of how the courts can be reasonably expected to rigorously protect the right of effective participation, if they do not possess a clear criteria to abide by. 

This argument is reinforced by the judgement of R v McGill, Hewitt and Hewitt. The case concerned three child defendants, accused of burglary, who each had a range of learning difficulties, including autism, ADHD, and a cognitive ability of the bottom 5% for children of his age. During their trial, the defendants sat in the dock with no supporting adults, contrary to the Criminal Practice Directions, due to lack of support. It was argued in their appeal that the Criminal Practice Directions for Vulnerable Defendants had not been followed, and for this reason, the defendants were unable to effectively participate in their trials. Though they found that their treatment was ‘regrettable’, the Court of Appeal did not consider this lack of adherence to render the convictions unsafe, thus the appeal was dismissed. The critique of this judgment is that it omitted to explain how they determined and assessed if they were able to effectively participate and how this does not result in the conviction being unsafe. The Court directed that to determine the best practice to support vulnerable child defendants is to apply the principles of R v Lubemba, which outlines how the practice for dealing with vulnerable witnesses. This is certainly a step towards the needed direction, as it bridges the gap between the treatment of vulnerable witnesses and vulnerable defendants, which will be discussed in the next section in more-depth. However, it still does not provide a clear criteria and practice for the courts and practitioners to adhere to. 

Vulnerable Defendants versus Vulnerable Witnesses       

Over the past two decades, substantial legal developments have aimed to support vulnerable witnesses in criminal trials, namely, through the enactment of the Youth Justice and Criminal Evidence Act. The Act introduced a range of special measures to be afforded to witnesses to better accommodate their needs. Special measures include the use of screens in court and video live links. The purpose of these is to create a supportive environment while minimising the emotional distress associated with testifying, and to ensure the quality of evidence is maintained.  As concerns around the well-being of witnesses have increased, additional support methods, like pre-recorded cross-examinations, have also been implemented. The accused is specifically excluded from eligibility for most special measures.   

According to the Criminal Practice Directions, the court must take reasonable steps to ‘facilitate the participation of any person, including the accused.’ However, while limited measures are available to vulnerable defendants, such as giving evidence by live link and being appointed an intermediary, strict criteria often limit defendants’ access to them. The use of intermediaries in criminal proceedings is a problematic area, it remains highly restrictive, even though they provide valuable assistance for the defendant comprehending the trial. For example, when an intermediary is utilised, they can only assist them in relation to evidence, they do not support the defendant’s understanding during other parts of the trial. This could imply that defendants are only able to participate as a means of acquiring evidence. Additionally, the statutory provision granting intermediaries is not in force, it is the adherent jurisdiction of the court to direct an intermediary for the defendant, on an ad hoc basis. Whilst the broad judicial commitment to effective participation is strong across the judiciary, the common law instruction for allowing an intermediary on differing circumstances is weak, thus, the application of intermediaries is often inconsistent. The unequal treatment of vulnerable defendants is further reinforced by their exclusion from the ‘Registered Intermediary Scheme’, which means that the intermediaries for defendants are not quality-assured in the same way they are for non-defendant witnesses. The arguments highlighted here illustrate the inferior treatment vulnerable defendants are afforded compared to vulnerable witnesses; there is currently a gap in legislation and common law, which renders unclear, and inconsistent results. 

Why is Effective Participation Important?

Effective participation in criminal proceedings is a foundational principle of justice, grounded in the idea that individuals accused of breaking law must have the opportunity to respond meaningfully to the allegations the state has made against them. Before the state imposes punishment, it is accountable to present its case transparently, allowing the defendant the capacity to defend themselves. Principles of autonomy and liberty dictate that defendants should not only have the right to participate actively, but the freedom to decide the extent of this participation. Given its significance, the right to effective participation should receive robust legal protection to ensure the secure delivery of justice and fairness. 

The importance of effective participation was investigated by Jacobson and Cooper, which aimed to fill the gap in legal research. The findings of the report, collected by interviews with legal professionals, such as lawyers and judges, revealed the widely held commitment to effective participation they share. They underscored that effective participation is not merely a theoretical concept, but a practical, functional commitment, actively supported through accommodations and real awareness that enable the defendant to follow proceedings. Below is a quote from the report, extracted from an interview with a family lawyer:

‘[Participation] is essential, absolutely essential. It goes to the basic tenet of justice must be seen to be done. If you’re made aware that someone doesn’t have the ability to follow the proceedings, whether it be because they don’t speak the language, whether they have some disability, whether they have a lack of ability to concentrate on matters or understand matters, then all those factors need to be taken into consideration in order to ensure that they have a fair trial.’

This excerpt illustrates the judiciary’s dedication to ensuring defendants are able to contribute, suggesting that fairness in legal proceedings is vital to the legitimacy of judicial outcomes and decision-making. Yet, it raises an important question: why does the law not reflect this principle as strongly as legal professionals seem to advocate? Effective participation not only legitimises the court process but reinforces fairness in the justice system by enabling informed, accurate decision-making based on relevant, comprehensive facts.

Going Forward

Academic consensus calls for a reform; suggesting that criminal court processes must become more accessible to vulnerable defendants, addressing a fundamental gap in the law. Procedural fairness should be systematically and consistently integrated into legislation to ensure fair participation rights, as these principles are essential to the justice system. Implementing a clear legal standard or test to assess effective participation would enhance accountability. Additionally, special measures legislation can be reformed to extend protections to vulnerable defendants, as they currently primarily serve vulnerable witnesses.. Applying these standardised measures on a case-by-case basis against a threshold criteria, tailored to each defendant’s circumstances, would significantly enhance their ability to engage meaningfully in their own trial, while ensuring they are being provided for those who would benefit from them.

Conclusion

The treatment of defendants in trial proceedings has long been a contentious issue within the legal system, as it concerns the degree of fairness afforded to the accused and the relative powers of the state. While legal professionals recognise the critical importance of effective participation, embedding this commitment into the law itself is essential to make it a consistent standard rather than a discretionary practice. Achieving this requires a legislative framework that ensures equal treatment for both defendants and witnesses, while also clarifying the meaning and scope of ‘effective participation’. As Owusu-Bempah states: 

‘Instead of being viewed as the subject and key stakeholder of the criminal process, the defendant is often treated as an object on which the criminal law is imposed.’

Mirren King

Bibliography

Primary Sources

Legislation

Criminal Practice Directions [2015] EWCA Crim 1567

Criminal Practice Directions [2023] EWCA Crim 1 para [6.1.1]

Youth Justice and Criminal Evidence Act 1999

Human Rights Act 1998

Cases

Colozza v Italy (1985) 7 EHRR 516

R v Lubemba [2014] EWCA Crim 2064

R v McGill, Hewitt and Hewitt (2017) EWCA 1228

SC v UK (2005) 40 EHRR 10

Secondary Sources

Campbell, L., Ashworth, A., Redmayne, M. The Criminal Process (5th edn, OUP 2019)

Cooper, D., Doak, J., Jackson, J., Saunders, C., Wright, D., ‘Cross-examination compared: the asymmetric treatment of vulnerable witnesses and vulnerable defendants’ (2024) 9 Criminal Law Review 609

Cottu, M, On the Administration of Criminal Justice in England; and the Spirit of the English Government (Richard Stevens 1822).

Hoyano, L. ‘Reforming the adversarial trial for vulnerable witnesses and defendants’ (2015) 2 Criminal Law Review 107

Jacobson, J., Cooper, P. Participation in Courts, and Tribunals: Concepts, Realities and Aspirations. (1st Edn, Bristol University Press, 2020)

Owusu-Bempah A, ‘Understanding the Barriers to Defendant Participation in Criminal Proceedings in England and Wales’ (2020) 40 Legal studies (Society of Legal Scholars) 609

Owusu-Bempah A, Defendant Participation in the Criminal Process (1st Edn, Routledge, 2018)

Owusu-Bempah, A. ‘The Interpretation and Application of the Right to Effective Participation’, (2018) 22 Sage Journals 321