Effective participation and fitness to plead

There is no formalised process in law for establishing a child’s capacity or ability to effectively participate in criminal proceedings as might exist in other areas of law1 or other jurisdictions.

This legal guide will:

• explain the legal framework for fitness to plead and effective participation in relation to children going through the criminal justice system
• take you through the key points in a case where concerns about your client’s ability to effectively participate arise, and give practical advice on the work that needs to be done by the defence at each stage.

England and Wales have a particularly low age of criminal responsibility. The average age of criminal responsibility across Europe is 14 years old2 – yet the presumption in England and Wales is that any child is criminally responsible for their actions from the age of 10.

This very low age of criminal responsibility, combined with the evolving scientific consensus with regard to child and adolescent brain development,3 and the prevalence of children with neurodisabilities and mental illness in the youth justice system,4 means it can be difficult for children to participate effectively in criminal proceedings.

The judiciary in England and Wales have created the Equal Treatment Bench Book (ETBB)5 to ensure that members of the judiciary and others working in the courts system have better awareness and understanding of the different circumstances of people appearing in courts and tribunals.6 Its aim is to enable and facilitate effective communication7 and suggest steps which should increase participation by all parties.8

The ETBB specifically addresses the effective participation of children, young people and vulnerable adults in the criminal justice system.9 It notes that ‘the effective participation in criminal proceedings by young and vulnerable defendants has been considered in a series of cases and it is relevant to the issue of a fair trial under article 6 of the European Convention on Human Rights’ (ECHR).10 In consequence: ‘Courts and tribunals are expected to adapt normal trial procedure to facilitate the effective participation of witnesses, defendants and litigants, by taking “every reasonable step to facilitate the participation of any person, including the defendant” in preparation for trial.’11 As the ETBB makes clear: ‘This may present more of a challenge to the decision-maker when parties or witnesses are children or vulnerable adults and have difficulty engaging with the court or tribunal process.’12

In its 2016 report, Unfitness to plead, the Law Commission stated that: ‘Early identification of young defendants with participation difficulties is key to ensuring suitable and effective procedures in the youth court.’13 The Law Commission went on to recommend in principle that ‘all defendants appearing for the first time in the youth court should be screened for participation difficulties’.14 To date, the government has not given effect to this recommendation.

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Arguments to ensure compliance with the rules around effective participation

The Criminal Practice Directions (CrimPD) 2015 Division I: ‘General matters’ at para 3D.1 identifies that children in the criminal justice system are vulnerable solely by virtue of their age: ‘“vulnerable” includes those under 18 years of age’. Many are doubly vulnerable as they may have extra needs due to underlying difficulties.

It is the practitioner’s responsibility to remind the court of the special status given to children in the criminal justice system,15 both in legislation16 and in rules of procedure.17

A case involving a vulnerable child defendant requires consideration of the child’s individual needs, and in particular:

• whether the child is fit to plead
• whether the child can effectively participate and
• what modifications or special measures may be necessary to ensure that a child is fit to plead and can participate effectively in the proceedings against them.

A defendant’s right to effective participation in the criminal process is inherent in Article 6 ECHR (right to a fair trial).18 A trial in which a child defendant cannot effectively participate may amount to a breach of the child’s Article 6 rights. The ETBB defines ‘effective participation’ as including ‘the right to hear and follow proceedings’, which in turn includes:

• ‘Being informed clearly and in detail, and in language which he or she can understand, of the
• nature and cause of the accusation against him or her.
• Having a broad understanding of the trial process and what is at stake.
• Being able to understand the general thrust of what is said in court.
• Being able to understand what is said by the prosecution witness and able to point out to his or her own lawyers any statement with which he or she disagrees.’19

These, in many respects, mirror the criteria in SC v UK20 set out in the European Court of Human Rights (ECtHR) jurisprudence below. Furthermore, domestic case law sets out practical steps which may be taken to facilitate participation in a youth court were set out by the High Court in R (TP) v West London Youth Court.21 They include:

• keeping the defendant’s level of cognitive functioning in mind
• using concise and simple language
• having regular breaks
• taking additional time to explain court proceedings
• being proactive in explaining and ensuring that the defendant understands the ingredients of
• the charge
• explaining the possible outcomes and sentences
• ensuring that cross-examination is carefully controlled so that questions are short and clear and frustration is minimised.22

The form modifications might take are wide-ranging and must be tailored to the particular needs and circumstances of the child in question. Ideas of the kinds of modifications that may be necessary are set out in the CrimPD (below).23 These are not exhaustive: a practitioner should argue for particular modifications as suggested by experts such as psychologists, speech and language therapists or other professionals who know the child.

Practitioners representing child defendants can also argue the welfare duty24 and ‘best interests’25 to support applications for any modifications to the court process that are necessary to ensure the child’s effective participation and to prevent the child from experiencing intimidation or distress.

European Court of Human Rights jurisprudence on effective participation

The language of ‘effective participation’ in criminal proceedings was first introduced in 1994, in the decision in Stanford v UK,26 in which the ECtHR held that the fair trial element of Article 6 ECHR ‘guarantees the right of an accused to participate effectively in a criminal trial’.27 This case related to an adult defendant.

In 1999, in V v UK,28 the concept of ‘effective participation’ was specifically referred to in the context of child defendants in the criminal justice system. The ECtHR found that by trying two
11-year-old boys in the Crown Court,29 the UK had breached their Article 6 right to a fair trial. The ECtHR held that ‘it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings’.30

The ECtHR also held that when a child is on trial, proceedings should be conducted in such a way as ‘to reduce as far as possible’ the child defendant’s ‘feelings of intimidation and inhibition’.31 Six years later, in the 2005 decision of SC v UK,20 the ECtHR considered the case of an 11-year-old with a significant degree of learning difficulties, who had been charged with robbery and tried in the Crown Court. In SC’s case, modifications had been put in place to facilitate his ability to effectively participate. SC sat with his social worker throughout the trial, and steps were taken to ensure that the procedure was as informal as possible (for example, the legal professionals did not wear wigs and gowns).

However, after his trial and conviction, fresh evidence from the social worker who had been with SC throughout the trial suggested that he had had little understanding of the trial process or of its likely consequences. Notwithstanding the modifications to the court process, the ECtHR was not satisfied that SC had been capable of participating effectively in his trial to the extent required by Article 6. The ECtHR held that ‘effective participation’ presupposes:

• that the accused has a broad understanding of the nature of the trial process and of what is at stake, including the significance of any penalty which may be imposed
• that the accused should be able to follow what is said by the prosecution witnesses and
• if represented, that the accused is able to explain to their own lawyers their version of events, to point out any statements with which they disagree, and make the representative aware of any facts which should be put forward in their defence.32

The ECtHR went on to say that for child defendants: ‘It is essential that he be tried in a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapt its procedure accordingly.’33

Modifications and special measures for effective participation: Criminal Practice Directions and Criminal Procedure Rules34

Background

The decision in V v UK led to domestic reforms for children in the criminal justice system in England and Wales in the form of a Criminal Practice Direction – ‘Practice Direction (Crown Court: Young Defendants)’ – issued in 2000 by the then Lord Chief Justice (Lord Bingham). This set out the steps that should be taken in the trials of ‘young defendants’.35

In 2000, the CrimPD applied specifically and exclusively to young defendants, which it defined as ‘children and young persons’, aligning with the language of other legislation relating to children.

Since 2000, there have been various amendments and overhauls that have extended the protective elements of the CrimPD to include all vulnerable people in court, whether children or adults.

Principles and eligibility for modifications

The Criminal Procedure Rules (CrimPR) are the law and should be interpreted in combination with the CrimPD. Together they provide a code of current practice that is binding on the courts to which they are directed.36

Practitioners and the court must work together to give effect to a child defendant’s right to effectively participate:

• The CrimPR state that parties are under a duty of ‘active assistance’ to alert the court to any potential impediment to the defendant’s effective participation in the trial.37
• The court is under a duty to:
  • take ‘every reasonable step’ to encourage and facilitate the participation of any person, including the defendant38
  • have regard to the welfare of a child defendant39 and
  • enable a witness or defendant to give their best evidence.40

The court discharges this duty by:

• identifying the needs of witnesses at an early stage and
• making provision for arrangements to meet those needs – whether in the form of statutory special measures or other modifications to the trial process.41

The key parts of the Criminal Practice Directions

Updates to the CrimPR42 make clear that the court must exercise its power to appoint an intermediary to facilitate a defendant’s effective participation in the trial where the defendant’s ability to participate effectively is likely to be diminished by reason of age, if the defendant is under 18.43

For more information about the appointment of intermediaries, see the YJLC Legal Guide Intermediaries for child defendants.44 The Court of Appeal has held that the special measures and modifications provided for in legislation and the CrimPD and CrimPR, should, when appropriately utilised, enable vulnerable defendants to effectively participate and ensure that there are fewer findings of a defendant being unfit to plead and stand trial.45

Available modifications

Below is a summary of the modifications provided for in the CrimPD. Remember, however, that these are not exhaustive: the court retains an inherent power at common law to make any modifications necessary to ensure a child defendant’s effective participation.46

Inability to participate effectively – staying proceedings as an abuse of process

If a defendant is unable to effectively participate despite modifications, technically the proceedings will breach Article 6 ECHR.53 The remedy is to stay proceedings as an abuse of process. In practice, however, this rarely happens: stays are an exceptional remedy. In R (P) v West London Youth Court,54 the High Court held that neither youth nor limited intellectual capability would necessarily lead to a breach of Article 6, the crucial question being whether the tribunal hearing the case was able to adapt its procedures so that the defendant could participate effectively in the proceedings.

The court has a continuing jurisdiction to grant a stay if it becomes apparent during the course of proceedings that a child defendant is incapable of effectively participating. The defence can apply for proceedings to be stayed. This will involve serving a skeleton argument on the CPS and the court and the matter being listed for a hearing.

In the Crown Court, if there are no modifications that will enable a vulnerable defendant to effectively participate, they may be found unfit to plead and a trial of the facts will take place. See ‘Fitness to plead procedure in the Crown Court’ below.

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The youth court

Procedure

Unlike the Crown Court where there is specific legislation relating to fitness to plead,55 the procedure in the youth court is an ad hoc process, contributed to by case law and legislation. The High Court has suggested that the following two-stage process fulfils the same requirements as the statutory fitness to plead procedure in the Crown Court:56

• Stage 1: Can the child defendant effectively participate? The standard of proof in determining this is the balance of probabilities.57

If not:

• Stage 2: Has the child has done the acts alleged?

The youth court’s power is essentially limited to: (a) adjourning proceedings for a report to be prepared on the defendant’s condition (s11(1) PCCSA 2000); and (b) making a hospital or guardianship order without convicting the defendant (under s37(3) MHA 1983).58

The Law Commission’s view was that the limited procedures available are insufficient and in need of reform because they do not consider unfitness to plead specifically:

They focus rather on whether the accused requires hospitalisation or a guardianship order instead. The lack of suitable procedures is liable to result in full trial being proceeded with where the defendant cannot effectively participate, proceedings being stayed without positive outcome … [But] [s]tays are an exceptional remedy and very rarely granted, especially
before evidence in the trial has been heard. Additionally, a stay simply stops the proceedings, providing no ongoing support or supervision for the defendant.59

Disposals available for a trial of the facts

If the youth court finds the child defendant did the act or made the omission charged, the court has the power to make an order without convicting the child defendant. At the conclusion of the trial of the facts, the court can adjourn the case in order for a report to be prepared regarding the child defendant’s physical or mental condition before deciding the method of dealing with them (s11(3)(a) PCCSA 2000).

However, the orders that are available to the court under s37(3) MHA 1983 are limited. They are only available where the offence charged carries imprisonment on summary conviction.61 They are as follows:

1. Hospital order

The youth court can impose on a child defendant a hospital order under s37(1) MHA 1983, if:

• the necessary medical evidence required by subsection (2) is present62
• the court is of the opinion, having regard to all of the circumstances, including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with them, that such an order is the most suitable method of disposing of the case.

Note that only the Crown Court can impose a hospital order with a restriction order.63

2. Guardianship order

A guardianship order places a defendant under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.64

It can only be imposed:

• on the basis of the required medical evidence65 and
• where the court is satisfied that guardianship is the most suitable disposal.

Note that a guardianship order is only available for children aged 16 or over.

The Crown Court

Determining fitness to plead

If, despite all of the available modifications, a defendant would still not be able to effectively participate, the court will need to determine whether the defendant is unfit to plead and stand trial. In the Crown Court the process is set out in legislation, ie the Criminal Procedure (Insanity) Act (CPIA) 1964.66

The test for determining unfitness has been established by case law and remains that set down by Alderson B in the 1836 case of R v Pritchard.67 More recently, the Pritchard test has been interpreted by the courts to make it more consistent with the modern trial process. The Court of Appeal in R v John M68 approved a formulation according to which the defendant will be found unfit to plead if any one or more of the following is beyond their capability in:

1. understanding the charge(s)
2. deciding whether to plead guilty or not
3. exercising their right to challenge jurors
4. instructing solicitors and/or advocates
5. following the course of proceedings
6. giving evidence in their own defence.69

Procedure

The issue as to whether a defendant is fit to plead is usually raised by the defence. If raised in this way, the burden of proof lies on the defence and it is discharged if the court is satisfied on the balance of probabilities that the defendant is not fit.70

If the prosecution raises the issue, the burden is on the prosecution to establish the defendant’s unfitness to the criminal standard of proof.71

The fitness to plead procedure involves a two-stage process:72

• Stage 1: Is the defendant fit to plead?
  • This is decided by a judge alone, on the basis of the Pritchard criteria set out above.73
  • The judge must do so on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved under s12 the Mental Health Act 1983.74
  • In reaching a determination, the court ‘must rigorously examine evidence of psychiatrists adduced before them and then subject that evidence to careful analysis against the
    Pritchard criteria’ before determining that a defendant is unfit to plead.75
  • Note that consideration of the question of the defendant’s fitness can be postponed until any time up to the opening of the case for the defence.76
• Stage 2: If the defendant is unfit to plead, did the defendant do the acts alleged?
  • This stage is determined by a jury, and is known as a s4A CPIA 1964 hearing, or a ‘trial of the facts’.
  • The jury must decide whether they are satisfied that the accused did the act or made the omission charged.
  • If satisfied, they shall make a finding that ‘the accused did the act or made the omission charged against him or her’.77 The defendant is not found guilty of the acts.
  • If the jury are not satisfied, they shall acquit the accused.78

The role of the lawyer for the defendant 

When a person has been found unfit to plead, but the matter is to proceed as a trial of the facts rather than a normal criminal trial, the lawyer no longer acts on the instructions of the accused but is appointed to put forward the case for the defence.

The court ‘must consider afresh’ who is the right person to be appointed; it will not necessarily be the same person who represented the accused before the finding.79 The role of the court-appointed lawyer is very different from a lawyer acting on behalf of a defendant and taking instructions from
their client.

Remands to hospital

Section 35 MHA 1983 enables the court to order an accused to be remanded to hospital for a report on the accused’s mental condition. It is applicable to any defendant arraigned before the Crown Court for an offence punishable with imprisonment, including murder, prior to conviction.81 This remand is limited to 28 days, with the right of further remand for periods of 28 days, up to 12 weeks in total.82

Section 36 MHA 1983 provides for the remand of an accused to hospital for treatment. It is applicable to any individual in the Crown Court in custody awaiting trial for an imprisonable offence, other than an offence the sentence for which is fixed by law (and so is not applicable to a defendant awaiting trial or determination of the facts in relation to a murder charge).83 Like s35, the power to remand to hospital under s36 is not available in the youth court. Section 36 has the same time limitation as s35.84

Final disposals after a trial of the facts

A person found to have ‘done the act’ is not found ‘guilty’ as would be the case in a criminal trial. The disposals available to the court when a person is found to have ‘done the act’ are not intended to be punitive, but rather to provide treatment and support for the individual and/or to protect the public, if necessary. The disposals are set out in s5 CPIA 1964 and are:

• Hospital order (with or without a restriction order):85 The individual is securely treated in a hospital and, where a restriction order is in place, cannot be released without the approval of the Secretary of State.
• Supervision order (with or without a treatment requirement):86 This order requires the ‘supervised person’ to be under the supervision of a social worker or a probation officer (this presumably includes any YOT officer, though the Act does not specifically refer to the YOT);87 the individual can be subject to a requirement to live in a particular place and to submit to out-patient treatment by a doctor.
• Absolute discharge:88 This has the same meaning as an ordinary absolute discharge.89

Written by Shauneen Lambe in collaboration with Katya Moran and Laura Cooper at the Youth Justice Legal Centre. With thanks to Daniella Waddoup (Doughty Street Chambers). 

This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, in collaboration with The Children’s Rights Group at Doughty Street Chambers, and funded by The Dawes Trust.

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