Abenaa Owusu-Bempah

The interpretation and application of the right to effective participation

Defendants have long held rights to participate in their criminal trials, including the right to effective participation. However, the precise meaning and scope of this right is unclear, and in practice the extent to which defendants can be said to participate effectively in criminal proceedings is often limited. This article examines the definition and uncertain scope of the right to effective participation. It also examines the narrow way in which the right has been applied by the courts, including a judicial willingness to reject medical opinion and an optimistic approach towards the effectiveness of special measures. It argues that there is a need for a clearer and more comprehensive definition of ‘effective participation’ and a more rigorous and medicalised approach to determining whether defendants can participate effectively, to ensure compliance with Article 6 of the European Convention on Human Rights and create legal certainty.