Giving Effect to Young People's Right to Effectively Participate in Criminal Proceeding
Arthur, R. (2016) Giving effect to young people’s right to participate effectively in criminal proceedings Child and Family Law Quarterly 28, 3, 223-238
Posted: 31 Oct 2017
Date Written: 2016
The very purpose of the criminal law, according to Duff, is to ‘identify and declare the public wrongfulness of certain kinds of moral wrongdoing, and to provide for an appropriate public response.’ As members of society, we are all answerable to the community in relation to those wrongs that ‘violate values on which the civic enterprise depends and display a lack of the respect and concern that citizens owe to each other as fellow citizens.’ To put a person on trial is to call them to answer for their wrong-doing, accordingly the criminal trial represents ‘a two-way moral conversation between the defendant and the court.’ The right to a fair trial, as protected by Article 6 of the European Convention on Human Rights, includes the right of all defendants to participate effectively in their trial. The right to effective participation in a criminal trial is ‘implicit in the very notion of an adversarial procedure’ and is reflected in the specific rights of the accused listed in Article 6(3) of the European Convention – ‘to defend himself in person’, ‘to examine or have examined witnesses’, and ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in court’.
Duff acknowledged that some citizens may not be competent to understand or participate in a criminal trial, as such these citizens cannot be called to answer for their conduct. In terms of vulnerable defendants, such as young people, in order for the right to effectively participate to be satisfied, consideration must be given to the accused’s vulnerability and steps taken to ensure that the vulnerable defendant can understand and participate in the criminal proceedings. This article will examine what options and opportunities are available to young people who are not capable of effectively participating in their own criminal proceedings as a result of their youth and immaturity inhibiting their understanding. The article will consider the extent to which these problematic options and opportunities infringe the young person’s fundamental right to a fair trial. This analysis is particularly timely following the recent decision in R(P) v Derby Youth Court which restricted the circumstances in which a youth with significant participation difficulties can have fitness to plead issues considered by the court.
Keywords: effective participation, young people, right to a fair trial, unfit to plead, stay of proceedings
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