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 who are not deemed to be ‘vulnerable’ are unable to participate in criminal proceedings in a meaningful sense. This presentation 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? The presentation will examine the rights of defendants to participate in criminal proceedings, the rationales for such rights, and the barriers to meaningful participation in court. The barriers range in nature from the formality of criminal proceedings and courtroom design, to the application of the right to effective participation, to the restrictive eligibility criteria for special measures. 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. 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. Moreover, with defendant participation valued primarily as a means of increasing efficiency or obtaining convictions, as opposed to a mechanism for respecting the autonomy of the defendant and providing a means of testing the prosecution case, there is little incentive to facilitate meaningful participation.
Bio: Abenaa Owusu-Bempah is an Assistant Professor of criminal law and criminal evidence at the London School of Economics. She has previously taught at City, University of London, the University of Sussex, and University College London. Abenaa’s research interests lie primarily in the areas of criminal procedure, the law of evidence and criminal law. Her current research focuses on fair trial rights and the participatory role of defendants in criminal proceedings. She is the author of Defendant Participation in the Criminal Process (2017), which examines requirements placed on defendants to actively participate in the criminal process, despite defendants holding rights not to participate.
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