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Understanding the barriers to defendant participation in criminal proceedings in England and Wales

Published online by Cambridge University Press:  03 August 2020

Abenaa Owusu-Bempah Open the ORCID record for Abenaa Owusu-Bempah [Opens in a new window]
Abenaa Owusu-Bempah*
Affiliation:
London School of Economics and Political Science, London, UK
*
*Author email: [email protected]
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Abstract

Over the past two decades, there have been significant legal developments aimed at securing and enhancing the participation of vulnerable witnesses in criminal trials. Yet, there remains relatively little regard for the fact that many defendants, including those who are not deemed to be vulnerable, are unable to participate in criminal proceedings in a meaningful sense. This paper aims to address two questions. First, why should defendants have participatory rights and be capable of meaningful participation in criminal proceedings? Second, why has it proven so difficult to attain meaningful participation of defendants? It is contended that barriers to meaningful communication between the defendant and the court could be dismantled without great difficulty, but continue to exist because due regard is not given to the normative rationales for participatory rights and defendant participation.

Keywords

criminal justicedefendantsfair trialeffective participation
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 4 , December 2020 , pp. 609 - 629
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of The Society of Legal Scholars

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Footnotes

†

The author would like to thank Penny Cooper, Ho Hock Lai, Jessica Jacobson, Sonya Onwu, Peter Ramsay and the anonymous reviewers for their input and helpful comments on previous drafts of this paper.

References

1 See T Pigot Report of the Advisory Group on Video Evidence (Home Office, 1989); Home Office Speaking up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, 1998).

2 See generally P Cooper et al ‘Getting to grips with ground rules hearings: a checklist for judges, advocates and intermediaries to promote the fair treatment of vulnerable people in court’ [2015] Crim LR 420. See also Criminal Procedure Rules (CrimPR) 3.9(7); Criminal Practice Directions 2015 (CPD) [2015] EWCA Crim 1567, General Matters 3E.

3 Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), s 28. Note that s 28 is only partially in force.

4 See for example E Henderson ‘All the proper protections: the Court of Appeal rewrites the rules for the cross-examination of vulnerable witnesses’ [2014] Crim LR 93.

5 See Hoyano, L ‘Coroners and Justice Act 2009: special measures directions take two: entrenching unequal access to justice?’ [2010] Crim LR 345Google Scholar; Stone, N ‘Special measures for child defendants: a decade of development’ (2010) 10 Youth Justice 174CrossRefGoogle Scholar; J Talbot Fair Access to Justice? Support for Vulnerable Defendants in the Criminal Courts (Prison Reform Trust, 2012); Cooper, P and Wurtzel, D ‘A day late and a dollar short: in search of an intermediary scheme for vulnerable defendants in England and Wales’ [2013] Crim LR 4Google Scholar; McEwan, J ‘Vulnerable defendants and the fairness of trials’ [2013] Crim LR 100Google Scholar; Arthur, R ‘Giving effect to young people's right to participate effectively in criminal proceedings’ (2016) 28 Child and Family Law Quarterly 223Google Scholar; Law Commission Unfitness to Plead (Law Com No 364, 2016); L Hoyano and A Rafferty ‘Rationing defence intermediaries under the April 2016 Criminal Practice Direction’ [2017] Crim LR 93; S Fairclough ‘Speaking up for injustice: reconsidering the provision of special measures through the lens of equality’ [2018] Crim LR 4.

6 See generally Jacobson, J et al. Inside Crown Court: Personal Experiences and Questions of Legitimacy (Bristol: Policy Press, 2016)Google Scholar.

7 As well as in other parts of the justice system. See for example G McKeever ‘A ladder of legal participation for tribunal users’ [2013] PL 575.

8 See for example the Lord Chancellor, the Lord Chief Justice, the Senior President of Tribunals Transforming Our Justice System (Ministry of Justice, 2016). See also Guidance: The HMCTS Reform Programme, available at https://www.gov.uk/guidance/the-hmcts-reform-programme (last accessed 9 June 2020).

9 On the importance of decision making capacity, see Law Commission, above n 5.

10 Subject to the rules of evidence and procedure.

11 Colozza v Italy (1985) 7 EHRR 516.

12 See R v Lee Kun (1916) 1 KB 337 at 341 (CA).

13 To meaningfully participate, the defendant must be capable of both active and passive participation, but active and passive participation at trial can be distinguished. Active participation involves mental effort and physical movement, often resulting in the production of information and the defendant contributing to the trial. Passive participation, on the other hand, requires no direct physical action on the part of the defendant, with the defendant receiving, rather than providing, information.

14 H Riddle and S Jones ‘Trial in absence in a magistrates’ court’ [2013] Crim LR 750, 755.

15 R v Jones [2002] UKHL 5. For a recent application of this principle see R v Hussain [2018] EWCA Crim 1785.

16 See generally I Dennis ‘The right to confront witnesses: meanings, myths and human rights’ [2010] Crim LR 255.

17 Ibid, at 266.

18 YJCEA 1999, ss 34–36.

19 See R (on the application of D) v Camberwell Green Youth Court [2005] UKHL 4.

20 By virtue of s 1 of the Criminal Evidence Act 1898, the defendant is a competent witness for the defence.

21 Stanford v UK App no 16757/90 (ECtHR, 23 February 1994). See also T v UK (2000) 30 EHRR 121; SC v UK (2005) 40 EHRR 10.

22 SC v UK, above n 21, at [28].

23 Ibid, at [29].

24 European Convention on Human Rights (ECHR), Art 6(3)(c).

25 ECHR, Art 6(3)(e).

26 Discussed below.

27 Law Commission, above n 5, para 3.21.

28 See generally A Owusu-Bempah ‘The interpretation and application of the right to effective participation’ (2018) 22 International Journal of Evidence and Proof 321.

29 See Stanford v UK, above n 21, at [26].

30 Owusu-Bempah, above n 28, at 326–328.

31 On the unclear distinction between effective participation and fitness to plead, and its implications, see Owusu-Bempah, above n 28, at 328–331.

32 As is the concept of fitness to plead. See Law Commission, above n 5.

33 See Stanford v UK, above n 21; R v Hamberger [2017] EWCA Crim 273. This issue is discussed further below.

34 See Kant, I Groundwork of the Metaphysics of Morals (Cambridge: Cambridge University Press, 1996)Google Scholar.

35 McCrudden, C ‘Human dignity and judicial interpretation of human rights’ (2008) 19 European Journal of International Law 655CrossRefGoogle Scholar at 659–660. Kant in particular has become closely affiliated with the idea of dignity as autonomy. See Kant, above n 34.

36 MacKenzie, C ‘Relational autonomy, normative authority and perfectionism’ (2008) 39 Journal of Social Philosophy 512CrossRefGoogle Scholar at 516.

37 Ho, HL ‘Liberalism and the criminal trial’ [2010] Singapore Journal of Legal Studies 87Google Scholar at 105.

38 Ibid.

39 Ibid, at 99.

40 Ibid, at 100.

41 Duff, A et al. The Trial on Trial 3: Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007)Google Scholar.

42 Ibid, p 153.

43 Duff, A et al. (eds) The Trial on Trial 2: Judgment and Calling to Account (Oxford: Hart Publishing, 2006) p 3Google Scholar.

44 Duff et al, above n 41, p 101.

45 On the court process and practices as a means of inflicting epistemic violence, see E Brissette ‘Bad subjects: epistemic violence at arraignment’ (2018) Theoretical Criminology, published online, available at https://doi.org/10.1177/1362480618799743 (last accessed 9 June 2020).

46 Natapoff, A ‘Speechless: the silencing of criminal defendants’ (2005) 80 New York University Law Review 1449Google Scholar at 1452. See below for further discussion on the implications of the socio-economic disparities within the criminal justice system.

47 Duff et al, above n 41, p 102.

48 See Ho, above n 37; Owusu-Bempah, A Defendant Participation in the Criminal Process (Abingdon: Routledge, 2017) ch 4Google Scholar.

49 ECHR, Art 6(2); Woolmington v DPP [1935] AC 462 (HL).

50 See Langbein, J The Origins of the Adversary Criminal Trial (Oxford: Oxford University Press, 2003)Google Scholar.

51 Owusu-Bempah, above n 48, p 9.

52 Jackson, J and Summers, S The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge: Cambridge University Press, 2012) pp 24–25CrossRefGoogle Scholar. See also Tyler, T Why People Obey the Law (New Haven: Yale University Press, 1990)Google Scholar.

53 See for example Sir Brian Leveson Review of Efficiency in Criminal Proceedings (Judiciary of England and Wales, 2015). See also CrimPR 1.1(2)(e), under which the overriding objective of dealing with cases justly includes dealing with cases efficiently and expeditiously.

54 CrimPR 3.2(2)(a).

55 Ho, above n 37, at 90.

56 Murray v UK (1996) 22 EHRR 29.

57 Ho, above n 37, at 105.

58 See Owusu-Bempah, above n 48.

59 Criminal Justice and Public Order Act 1994, ss 34–39.

60 Criminal Procedure and Investigations Act 1996, ss 5 and 11.

61 It was for these reasons that the Royal Commission on Criminal Justice advised against allowing adverse inferences to be drawn from silence. See Royal Commission on Criminal Justice Report, Cm 2263, 1993, ch 4.

62 For example, the law allowing adverse inferences to be drawn from silence is intended to prevent defendants from evading conviction by hiding behind silence. In R v Hoare [2004] EWCA Crim 784, Auld LJ explained that ‘the section 34 inference is concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage’ (at [54]). For a review of the debates that preceded the enactment of ss 34–39 of the Criminal Justice and Public Order Act 1994, see Zander, M ‘Abolition of the right to silence, 1972–1994’ in Morgan, D and Stephenson, GM (eds) Suspicion and Silence: The Right to Silence in Criminal Investigations (London: Blackstone Press, 1994)Google Scholar.

63 Jacobson et al, above n 6, pp 83 and 202. See also J Jacobson et al ‘Supporting the effective participation of defendants in court proceedings’ (Birkbeck, University of London, 2014); A Kirby et al ‘Effective participation or passive acceptance: how can defendants participate more effectively in the court process?’ Howard League What is Justice? Working Papers (The Howard League for Penal Reform, 2014).

64 See Langbein, above n 50.

65 See Beattie, JM Crime and the Courts in England 1660–1800 (Oxford: Clarendon Press, 1986)Google Scholar; Beattie, JM ‘Scales of justice: defense counsel and the English criminal trial in the eighteenth and nineteenth centuries’ (1991) 9 Law and History Review 221CrossRefGoogle Scholar.

66 On the ‘differentiation’ between barristers and their clients, see Mulcahy, L Legal Architecture: Justice, Due Process and the Place of Law (Abingdon: Routledge, 2011) pp 60–64Google Scholar. On the changing role of defendants see also, Gimson, R ‘The mutable defendant: from penitent to rights-bearing and beyond’ (2020) 40 LS 113Google Scholar.

67 Wohlers, W ‘The role of counsel in criminal proceedings: differences between common law and civil law systems’ in Jackson, J and Summers, S (eds) Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Oxford: Hart Publishing, 2018) p 135Google Scholar.

68 Jacobson et al, above n 6, p 97.

69 Rock, P The Social World of an English Crown Court (Oxford: Oxford University Press, 1993) p 240Google Scholar.

70 CrimPR 3.9(3).

71 CrimPR 3.2 and 3.3.

72 CrimPR 1.1(2)(e).

73 McEwan, J ‘From adversarialism to managerialism: criminal justice in transition’ (2011) 31 LS 519Google Scholar at 527.

74 See Stanford v UK, above n 21; R v Hamberger, above n 33. However, in order to effectively participate by proxy, the defendant must be able to instruct and adequately communicate with their lawyer outside of the courtroom. See T v UK, above n 21, at [90].

75 Trechsel, S Human Rights in Criminal Proceedings (Oxford: Oxford University Press, 2005) pp 253, 335Google Scholar.

76 The right to effective participation does not require that the defendant should understand or be capable of understanding every point of law or evidential detail, given the right to legal representation. See SC v UK, above n 21, at [29].

77 Owusu-Bempah, above n 28, at 332–333.

78 In 2017, 5% of defendants in the Crown Court were unrepresented at the first hearing. Ministry of Justice Criminal Court Statistics (Quarterly): January to March 2018, p 17, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/720026/ccsq-bulletin-jan-mar-2018.pdf (last accessed 9 June 2020). A rise in the number of unrepresented defendants in recent years has been attributed to cuts to legal aid. See O Bowcott ‘Jump in unrepresented defendants as legal aid cuts continue to bite’ (The Guardian, 24 November 2019) available at https://www.theguardian.com/law/2019/nov/24/legal-aid-cuts-prompt-rise-in-unrepresented-defendants (last accessed 9 June 2020).

79 See Transform Justice Justice Denied? The Experience of Unrepresented Defendants in the Criminal Courts (Transform Justice, 2016) available at http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf (last accessed 9 June 2020).

80 See Owusu-Bempah, above n 28.

81 Kirby et al, above n 63, p 6. These findings echo those of earlier studies, such as Rock, above n 69.

82 Jacobson et al, above n 6, p 197.

83 Ibid, p 101.

84 See for example Lord Carlile Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court (Ministry of Justice, 2014); A Wigzel et al The Youth Proceedings Advocacy Review: Final Report (Institute for Criminal Policy Research, 2015).

85 See for example J Jacobson and J Talbot Vulnerable Defendants in the Criminal Courts: A Review of Provision for Adults and Children (Prison Reform Trust, 2009).

86 See Talbot, J et al ‘Vulnerable voices?’ in Cooper, P and Hunting, L (eds) Addressing Vulnerability in Justice Systems (London: Wildy, 2016)Google Scholar.

87 Ministry of Justice Statistics on Race and the Criminal Justice System 2016 (Ministry of Justice, 2017) p 44, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/669094/statistics_on_race_and_the_criminal_justice_system_2016_v2.pdf (last accessed 9 June 2020).

88 Judicial Office Judicial Diversity Statistics 2016 (Judicial Office, 2016) p 8, available at https://www.judiciary.uk/wp-content/uploads/2016/07/judicial-diversity-statistics-2december.pdf (last accessed 9 June 2020). The figure rose to 7% in 2018. See Judicial Office Judicial Diversity Statistics 2018 (Judicial Office, 2018) p 5, available at https://www.judiciary.uk/wp-content/uploads/2018/07/judicial-diversity-statistics-2018-1.pdf (last accessed 9 June 2020).

89 Ministry of Justice, above n 87, p 44.

90 Judicial Office Judicial Diversity Statistics 2018 (Judicial Office, 2018) p 5. The judicial diversity statistics for 2016 do not specify the proportion of black judges. Given that the proportion of Black, Asian or Minority Ethnic judges has increased slightly since 2016, it is unlikely that there were more black judges in 2016 than in 2018.

91 Bar Standards Board Diversity at the Bar 2018 (Bar Standards Board, 2019) p 12, available at https://www.barstandardsboard.org.uk/resources/resource-library/diversity-at-the-bar-2018-pdf.html (last accessed 9 June 2020). The overall percentage of Black, Asian and Minority Ethnic barristers at the Bar in December 2018 was 13%.

92 Office for National Statistics 2011 Census: General Report for England and Wales, available at https://www.ons.gov.uk/census/2011census/howourcensusworks/howdidwedoin2011/2011censusgeneralreport (last accessed 9 June 2020).

93 The Bar Standards Board suggests that the figure is 15.5%, taking account of a high non-response rate. See Bar Standards Board, above n 91, p 19.

94 The Independent Schools Council suggests that over 7% of school children in England attend an independent school, available at https://www.isc.co.uk/research/ (last accessed 9 June 2020).

95 See for example HM Government Reducing Reoffending through Skills and Employment, Cm 6702, 2005; J Talbot Seen and Heard: Supporting Vulnerable Children in the Youth Justice System (Prison Reform Trust, 2010).

96 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 N Loucks Prisoners with Learning Difficulties and Learning Disabilities – Review of Prevalence and Associated Needs (Prison Reform Trust, 2007). Communication difficulties are most prevalent amongst children, with over 60% of children who offend having communication difficulties. See Talbot, above n 5.

97 Jacobson et al, above n 6, pp 182–184. See also R Hood et al Ethnic Minorities in the Criminal Courts: Perceptions of Fairness and Equality of Treatment (Department of Constitutional Affairs, 2003); K Irwin-Rogers and M Shuter Fairness in the Criminal Justice System: What's Race got to do with it? (Catch 22, 2017) available at https://www.catch-22.org.uk/wp-content/uploads/2017/04/Fairness-in-the-criminal-justice-system-full-report-3.pdf?utm_source=download&utm_medium=google_form&utm_campaign=lammy (last accessed 9 June 2020); P Bowen Building Trust: How our Courts can Improve the Criminal Court Experience for Black, Asian, and Minority Ethnic Defendants (Centre for Justice Innovation, 2017) available at http://justiceinnovation.org/wp-content/uploads/2017/03/Building-Trust.pdf (last accessed 9 June 2020).

98 Ministry of Justice Black, Asian and Minority Ethnic Disproportionality in the Criminal Justice System in England and Wales (Ministry of Justice, 2016); Ministry of Justice Statistics on Race and the Criminal Justice System 2016 (Ministry of Justice, 2017). See also D Lammy The Lammy Review (Ministry of Justice, 2017) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf (last accessed 9 June 2020).

99 For example, David Lammy has recommended greater diversity among judges and magistrates. See Lammy, above n 98.

100 See for example Carlen, P Magistrates’ Justice (London: Martin Robertson, 1976)Google Scholar; Rock, above n 69; Fielding, N Courting Violence: Offences against the Person Cases in Court (Oxford: Oxford University Press, 2006)CrossRefGoogle Scholar; Jacobson et al, above n 6.

101 Jacobson et al, above n 6, pp 96 and 201.

102 See Fielding, above n 100, p 109 and ch 5. See also Rock, above n 69, pp 61–62. On the courts as a mechanism for social control, see Carlen, above n 100.

103 Jacobson et al, above n 6, p 98.

104 See Wohlers, above n 67, ch 7. See also Colquitt, J ‘Hybrid representation: standing the two-sided coin on its edge’ (2003) 38 Wake Forest Law Review 55Google Scholar.

105 A Kirby ‘Effectively engaging victims, witnesses and defendants in the criminal courts: a question of “court culture”?’ [2017] Crim LR 949.

106 See for example E Gold LaGratta and P Bowen To be Fair: Procedural Fairness in Courts (Criminal Justice Alliance, 2014) available at http://criminaljusticealliance.org/wp-content/uploads/2015/02/TobeFair.pdf (last accessed 9 June 2020); Bowen, above n 97, pp 18–20; J Thomas et al A Fairer Way: Procedural Fairness for Young Adults at Court (Centre for Justice Innovation, 2018) available at https://justiceinnovation.org/publications/fairer-way-procedural-fairness-young-adults-court (last accessed 9 June 2020).

107 See for example Tyler, above n 52; Tyler, T ‘Procedural justice, legitimacy, and the effective rule of law’ (2003) 30 Crime and Justice 283CrossRefGoogle Scholar; Tyler, T ‘Procedural justice and the courts’ (2007) 44 Court Review 26Google Scholar; Cheng, K Kwok-yin ‘Legitimacy in a postcolonial legal system: public perception of procedural justice and moral alignment toward the courts in Hong Kong’ (2018) 43 Law and Social Inquiry 212CrossRefGoogle Scholar.

108 Tyler identified four key procedural justice principles: voice, neutrality, respect and trust. See Tyler (2007), above n 107, at 30–31.

109 Justice Understanding Courts (Justice, 2019) p 67, available at https://justice.org.uk/wp-content/uploads/2019/01/Understanding-Courts.pdf (last accessed 9 June 2020). See also The Equal Treatment Bench Book (Judicial College, 2018) 4.

110 Bowen, above n 97, p 18.

111 Gold LaGratta and Bowen, above n 106, p 6.

112 See also Justice, above n 109, which makes a number of practical recommendations aimed at facilitating participation and improving lay people's understanding of the court process.

113 Kirby, above n 105, at 968. In an adversarial trial, the extent to which the prosecution can be expected to treat the defendant with empathy may be limited, particularly if the prosecution case is that the defendant is lying. Nonetheless, the prosecution can approach and engage the defendant in a respectful manner.

114 On the significance of court architecture and design, see generally Mulcahy, above n 66; Mulcahy, L and Rowden, E The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (Abingdon: Routledge, 2020)Google Scholar. See also Rock, above n 69, ch 6.

115 While it is routine for defendants to sit in the dock, there is an exception for children and other vulnerable defendants. In accordance with the Criminal Practice Directions, ‘a vulnerable defendant, especially if he is young, should normally, if he wishes, be free to sit with members of his family or others in a like relationship, and with some other suitable supporting adult such as a social worker, and in a place which permits easy, informal communication with his legal representatives’: CPD 3G.8. However, this exception is not automatic and placement of young defendants in the dock will not necessarily render a trial unfair. See R v McGill, Hewitt and Hewitt [2017] EWCA Crim 1228.

116 Mulcahy, L ‘Putting the defendant in their place: why do we still use the dock in criminal proceedings?’ (2013) 53 British Journal of Criminology 1139CrossRefGoogle Scholar at 1144.

117 Ibid, at 1143.

118 J Miller ‘A rights-based argument against the dock’ [2011] Crim LR 216 at 220.

119 Stone, J and Blackstock, J ‘Violating the right to a fair trial? The secure dock in England and Wales’ (2017) Archbold Review 4Google Scholar at 6.

120 Miller, above n 118, at 221.

121 Justice In the Dock: Reassessing the Use of the Dock in Criminal Trials (Justice, 2015) p 15, available at https://justice.org.uk/wp-content/uploads/2015/07/JUSTICE-In-the-Dock.pdf (last accessed 9 June 2020).

122 Mulcahy, above n 116, at 1144.

123 It is also notable that, while the threat of adverse inferences interferes with the right not to participate, limited access to special measures can prevent the defendant from giving their best evidence. See below.

124 See for example Rosen, L ‘The dock – should it be abolished?’ (1966) 29 MLR 289CrossRefGoogle Scholar; Miller, above n 118; Mulcahy, above n 116; Justice, above n 121.

125 A study using mock jurors in Australia found that jurors are more likely to convict defendants when they are located in a dock, compared to having them sit next to their counsel at the bar table. See Rossner, M et al. ‘The dock on trial: courtroom design and the presumption of innocence’ (2017) 44 Journal of Law and Society 317CrossRefGoogle Scholar.

126 Rosen, above n 124, at 297.

127 Ibid, at 296.

128 Justice, above n 121, p 24.

129 See Illinois v Allen, 397 US 337 (1970); Young v Callahan, 700 F2d 32, 36 (1 st Cir 1983); Deck v Missouri, 544 US 622 (2005).

130 See Svinarenko and Slyadnev v Russia App no 32541/08 and 43441/08 (ECtHR (GC), 17 July 2014) at [138].

131 See Yaroslav Belousov v Russia App no 2653/13 and 60980/14 (ECtHR, 4 October 2016) at [125].

132 Alekhina v Russia (2019) 68 EHRR 14 at [147]–[149]. See also Yaroslav Belousov v Russia, above n 131, where Art 3 was breached due to the fact that 10 defendants had been held in a ‘glass cabin’ for two months of their high-profile trial, with virtually no space between them.

133 Alekhina v Russia, above n 132, at [166]–[172].

134 Defendants are accompanied by any co-defendants, a custody officer and sometimes other professionals, such as an interpreter. However, the dock is not typically overcrowded, as it was in Yaroslav Belousov. Nor is the dock guarded by armed officers, as in Alekhina.

135 Stone and Blackstock, above n 119, at 6.

136 Alekhina v Russia, above n 132, at [169].

137 Mulcahy, above n 116, at 1149–1152.

138 Ibid, at 1144–1149.

139 See for example Miller, above n 118; Mulcahy, above n 116; Rossner et al, above n 125; Mulcahy and Rowden, above n 114.

140 See for example Scott, M ‘Get rid of the docks!’ (2015) 179 Criminal Law and Justice Weekly 99Google Scholar; Stone, J ‘Is it now time to abolish the dock in all criminal proceedings in England and Wales?’ (2015) Archbold Review 7Google Scholar.

141 Justice, above n 121.

142 L Mulcahy et al ‘What if the dock was abolished in criminal courts?’ (Howard League for Penal Reform, 2020) available at https://howardleague.org/wp-content/uploads/2020/01/What-if...-the-dock-was-abolished-1.pdf (last accessed 9 June 2020).

143 O Bowcott ‘Senior judge calls for abolition of security cages from courtrooms’ (The Guardian, 3 July 2015) available at https://www.theguardian.com/law/2015/jul/03/senior-judge-abolition-courtroom-docks-security-cage (last accessed 9 June 2020).

144 Young defendants are ordinarily tried in the youth court, where procedures are adapted to take account of age. However, trials for certain serious offences, including murder, take place in the Crown Court. While this paper is concerned primarily with contested Crown Court trials, attaining meaningful participation is also an issue in the youth court. See for example C Robin-D'Cruz Young People's Voices on Youth Court (Centre for Justice Innovation Briefing Paper, 2020) available at https://justiceinnovation.org/publications/young-peoples-voices-youth-court (last accessed 9 June 2020).

145 Note that there is no single or legal definition of what constitutes a ‘vulnerable’ witness or defendant. Drawing from the eligibility criteria for special measures in ss 16 and 17 of the YJCEA 1999, the Criminal Practice Directions state that: ‘“vulnerable” includes those under 18 years of age and people with a mental disorder or learning disability; a physical disorder or disability; or who are likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case’. The Direction also acknowledges that ‘many other people giving evidence in a criminal case, whether as a witness or defendant, may require assistance’. See CPD 3D.1–3D.2.

146 CrimPR 3.9(3)(b).

147 CPD 3D.2.

148 See for example The Advocate's Gateway toolkits, particularly, Toolkit 8: Effective Participation of Young Defendants, available at www.theadvocatesgateway.org/toolkits (last accessed 9 June 2020), as well as the Inns of Court College of Advocacy's training programme, ‘Advocacy and the Vulnerable’, available at https://www.icca.ac.uk/advocacy-the-vulnerable-crime/ (last accessed 9 June 2020). See also The Equal Treatment Bench Book (Judicial College, 2018).

149 See generally Cooper, P and Norton, H (eds) Vulnerable People and the Criminal Justice System: A Guide to Law and Practice (Oxford: Oxford University Press, 2017)Google Scholar.

150 See CPD 3D–3G.

151 On the changing rules and rationale of cross-examination, see Henderson, above n 4; Henderson, E ‘Theoretically speaking: English judges and advocates discuss the changing theory of cross-examination’ [2015] Crim LR 929Google Scholar; Henderson, E ‘Taking control of cross-examination: judges, advocates and intermediaries discuss judicial management of the cross-examination of vulnerable people’ [2016] Crim LR 181Google Scholar.

152 On the prevalence of communication difficulties, learning disabilities and mental health problems among defendants see for example Loucks, above n 96; The Bradley Report: Lord Bradley's Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System (Department of Health, 2009); Talbot, above n 95; Talbot, above n 5; Wigzel et al, above n 84; Justice, Mental Health and Fair Trial (Justice, 2017).

153 See generally Plotnikoff, J and Woolfson, R Intermediaries in the Criminal Justice System: Improving Communication with Vulnerable Witnesses and Defendants (Bristol: Policy Press 2015)CrossRefGoogle Scholar.

154 YJCEA 1999, ss 33BA and 33BB, inserted by the Coroners and Justice Act 2009, s 104.

155 See for example C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin); CPD 3F.11–3F.18.

156 For a discussion of the shortcomings of intermediaries for defendants, see generally Cooper and Wurtzel, above n 5; D Wurtzel ‘Intermediaries for defendants: recent developments’ [2017] Crim LR 463. See also Law Commission, above n 5, ch 2.

157 Law Commission, above n 5, para 1.27.

158 See R (on the application of OP) v the Secretary of State for Justice and Others [2014] EWHC 1944 (Admin), where exclusion from the Registered Intermediary scheme was successfully challenged. However, there has yet to be a change in practice.

159 For a critique of the amendment, see Hoyano and Rafferty, above n 5.

160 CPD 3F.13.

161 R v Rashid [2017] EWCA Crim 2; R v Biddle [2019] EWCA Crim 86.

162 R v Rashid, above n 161, at [73].

163 See CPD 3G.10. See also CPD 3F.12, which states: ‘The court should adapt the trial process to address a defendant's communication needs … It will rarely exercise its inherent powers to direct appointment of an intermediary’.

164 R v Rashid, above n 161, at [73].

165 CPD 3F.12.

166 CPD 3G.8.

167 Stone, above n 5, at 182.

168 See Hanna, K and Henderson, E ‘“[Expletive], that was confusing, wasn't it?” defence lawyers’ and intermediaries’ assessment of the language used to question a child witness’ (2018) 22 International Journal of Evidence and Proof 412CrossRefGoogle Scholar.

169 YJCEA 1999, s 33A, as inserted by s 47 of the Police and Justice Act 2006.

170 YJCEA 1999, s 33A(2)–(5).

171 See R v Hamberger, above n 33.

172 YJCEA 1999, s 17.

173 Ibid, ss 16 and 21.

174 R (on the application of D) v Camberwell Green Youth Court, above n 19, at [56], per Baroness Hale.

175 See for example Fairclough, above n 5.

176 See for example Hoyano, L ‘Striking a balance between the rights of defendants and vulnerable witnesses: will special measures directions contravene guarantees of a fair trial?’ [2001] Crim LR 948Google Scholar; Hoyano, above n 5.

177 Law Commission, above n 5, ch 2 and paras 2.93–2.94.

178 Fairclough, S ‘“It doesn't happen… and I've never thought it was necessary for it to happen”: barriers to vulnerable defendants giving evidence by live link in Crown Court trials’ (2017) 21 International Journal of Evidence and Proof 209CrossRefGoogle Scholar.

179 This can result not only from an inability to recognise or uncover specific vulnerabilities, but also from a reluctance to view defendants as being vulnerable, and viewing defendants as undeserving of special measures. See Fairclough, S ‘Using Hawkins's surround, field, and frames concepts to understand the complexities of special measures decision making in Crown Court trials’ (2018) 45 Journal of Law and Society 457CrossRefGoogle Scholar at 472–473.

180 See Fairclough, above n 178, at 219.

181 Ibid, at 220–223.

182 However, many practitioners are troubled by the disparate treatment and difficulties faced by vulnerable defendants in court. See for example J Plotnikoff and R Woolfson Falling Short? A Snapshot of Young Witness Policy and Practice (NSPCC, 2019) ch 5.8.

183 L Hoyano ‘Reforming the adversarial trial for vulnerable witnesses and defendants’ [2015] Crim LR 107 at 127.

184 See T v UK, above n 21; SC v UK, above n 21. On the problems caused by the way in which special measures for defendants have developed, see Fairclough, S ‘The consequences of unenthusiastic criminal justice reform: a special measures case study’ (2019) Criminology and Criminal JusticeCrossRefGoogle Scholar, first published online, available at https://journals.sagepub.com/doi/abs/10.1177/1748895819848804 (last accessed 9 June 2020).

185 See for example R (on the application of P) v West London Youth Court [2005] EWHC 2583 (Admin); R v D [2013] EWCA Crim 465.

186 See for example O'Donnell v UK App no 16667/10 (ECtHR, 7 April 2015); R v Rashid, above n 161.

187 A Owusu-Bempah, ‘Vulnerable defendants and the right to silence: O'Donnell v United Kingdom [2015] ECHR 16667/10’ (2015) 79 Journal of Criminal Law 322 at 324.

188 See for example R v D, above n 185; O'Donnell v UK, above n 186; R v Mulindwa [2017] EWCA Crim 416.

189 R v Biddle, above n 161. The Court was not convinced that there was a causative link between the defendant's silence and the absence of an intermediary. Also, note that if the court finds that special measures are necessary to ensure a fair trial, but the measures cannot be put in place, the proceedings should be stayed as an abuse of process. See R v Akhtar [2016] EWCA Crim 390.

190 See for example The Bradley Report, above n 152, p 61; Talbot, above n 5, p 3; Lord Carlile, above n 84, p 28; Law Commission, above n 5, paras 2.21–2.94; Justice, above n 152, pp 101–102; Plotnikoff and Woolfson, above n 182, ch 5.8.

191 Duff et al, above n 41, p 153.

192 For example, where the defendant is liable to incriminate themselves.

193 Though there are problems with the implementation of measures and adjustments for non-defendant witnesses. See for example Plotnikoff and Woolfson, above n 182.

194 See for example Justice, above n 109, p 67.

195 As is required of the court under CrimPR 3.2(2)(a).