Understanding The Barriers To Defendant Participation In Criminal Proceedings

Understanding The Barriers To Defendant Participation In Criminal Proceedings Presented by: Dr. Owusu-Bempah Date: 20 November 2020 Questions - Why should defendants have participatory rights and be capable of meaningful participation at their trials? - Why is it so difficult to attain meaningful participation of defendants? Participatory Rights - Article 6, European Convention on Human Rights • The right to be present • The right to examine witnesses • The right to give evidence • The right to effective participation  SC v UK (2005) 40 EHRR 10: "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 defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defense.' Rationales For Participatory Rights - The defendant should be treated as the subject of proceedings, and not as an object for condemnation and punishment - To treat the defendant as the subject of the proceedings is to respect them as a participant - (Hock Lai Ho, 'Liberalism and the Criminal Trial' [2010] Singapore Journal of Legal Studies 87, 100) • "The value of participation, the ability to control and influence one's case, lies in the intrinsic value of self-direction ... independently of its contribution to the probabilities of reaching the correct verdict. Citizens are not objects to be acted upon and kept away by the state for the sake of public safety and order; they are individuals that bear rights against the state in the process that seeks their conviction and punishment." Rationales For Participatory Rights - The criminal trial is, at least in ambition, - "a communicative process in which the defendant ought to be respected as a participant rather than merely treated as an object." (A Duff, L Farmer, S Marshall and V Tadros (eds), The Trial on Trial 3 (Hart Publishing, 2007) 153) - The routine silencing of defendants denies a voice to, and further disempowers, the disadvantaged groups who tend to be prosecuted - Participatory rights provide a mechanism to test the prosecution case Barriers To Participation: Professionalisation And Formality - The defendant "would often be discussed as if he were not present" (P Rock, The Social World of an English Crown Court (Oxford, Oxford University Press, 1993) 240) - Defendant interviewee: J Jacobson, G Hunter and A Kirby, Inside Crown Court: Personal experiences and questions of legitimacy (Policy Press, 2016) • "Well, it's posh in it? The courts are posh. It's all posh to me, everyone in wigs; everyone talks in this funky language" - C Ely and J Thomas, The voices of young adult defendants (Centre for Justice Innovation, 2018) • They don't talk to you, they talk about you." • "They speak a different language" Barriers To Participation: Race And Class - In 2016, 21% of defendants in the Crown Court were from a Black, Asian, Mixed, Chinese or 'Other' ethnic background, whereas just 6% of court judges were from a Black, Asian or Minority Ethnic background • In 2016, 11% of defendants in the Crown Court were black, whereas, in 2018, 1% of court judges and 2.8% of barristers were black (Ministry of Justice, Statistics on Race and the Criminal Justice System 2016; Judicial Office, Judicial Diversity Statistics 2016 and 2018) - At least 15.5% of barristers attended an independent school, compared to approximately 7% of the general population (Bar Standards Board, Diversity at the Bar 2018 (Bar Standards Board, 2019)) - Defendants tend to be under-educated, and levels of learning disabilities are disproportionately high among defendants (HM Government's Reducing Reoffending Through Skills and Employment CM6702 (2005); J Talbot, Seen and Heard: Supporting vulnerable children in the youth justice system (Prison Reform Trust, 2010)) Barriers To Participation: The Dock - Marginalizes defendants, prevents communication with lawyers, undermines the presumption of innocence - "Enclosing a person in a glass box or wooden pen is clearly an objectively humiliating experience and its rationale must be questioned as an affront to the dignity of proceedings." (In the Dock: Reassessing the use of the dock in criminal trials (Justice, 2015) 24) Challenges To Use Of The Dock - Alekhina v Russia (2019) 68 EHRR 14; Yaroslav Belousov v Russia (2653/13 and 60980/14) 4 October 2016 - Confinement in a glass dock does not in and of itself breach Article 3 of the ECHR, BUT it may do so if the circumstances of the confinement meet the minimum level of severity required to characterize the treatment as degrading. - Use of a glass dock can also breach the right to participate effectively and the right to effective legal assistance. - Is the dock necessary? Why not abolish it? Taking Participatory Rights Seriously - The function of the criminal trial is to call the state to account for the accusations made against the defendant, before the defendant is subjected to condemnation and punishment. During this process of proof, the defendant should be treated as the subject, and not the object, of the proceedings. - The court process and the court environment must become more accessible, hospitable and transparent. It must better incorporate the principles of procedural justice. - But improvement depends on a broader change in perspective. There needs to be much more regard for the rationales for participatory rights.