Changes to enable a child defendant to understand and take part in what is happening in the adult magistrates’ court and the Crown Court.
What this means
Courts must take every reasonable step to facilitate the participation of witnesses and defendants.1 Children in the adult magistrates’ court and Crown Court are entitled to modifications to the normal trial process to allow them to effectively participate.
Making modifications in adult courts
The European Court of Human Rights says that a child must have a broad understanding of the trial process and what is at stake.2There are a number of suggested ways that changes can be made:3
- Arrange a familiarisation visit to the court
- Remove wigs and gowns in the Crown Court
- Refer to a child by their first name
- Have a child sitting out of the dock
- Have a child sitting close to an appropriate adult
- Have a child sitting close to their lawyer
- Arrange for regular breaks
- Take time to explain court proceedings a child what is going on
- Avoid complicated language, use clear and simple questions4
- Be proactive in ensuring the child has access to support
- Keep public access to a minimum
- Use an intermediary to help communication
- Use a live link to give evidence
- Any other change to ensure effective participation
How to raise effective participation
It can be difficult to assess whether a child can effectively participate in criminal proceedings. There is a useful toolkit on identifying vulnerability in witnesses and defendants. Usually an expert, such as a psychologist or psychiatrist, will meet the child and write a report. The report will tell the child’s lawyers whether the child can effectively participate in court proceedings and if they can, any modifications that need to be made.
Stopping the criminal case
If an expert report says a child cannot effectively participate in court proceedings.
The child’s lawyer can:
- Ask prosecution (CPS) to discontinue the case. If the child’s lawyer writes to the prosecution to ask them to stop the case, this is called making written representations.
- Ask the court to decide whether the child is unfit to plead. If the child is not fit to plead they will not get a criminal conviction but the court will decide if they did or did not do something that is wrong and they can receive a discharge, supervision order or a hospital order.
- Ask the judge to stop the case, the court has a power to stop a case if the defendant is unable to effectively participate, because they cannot receive a fair trial,5 this is called staying proceedings. This will happen very rarely.
- 1. Rule 3.9(3)(b) Criminal Procedure Rules 2014
- 2. T v UK, V v UK (2000) 30 EHRR 121, SC v UK (2005) 40 EHRR 10, R(TP) v West London Youth Court  EWHC 2583 (Admin)
- 3. Para 3D, 3E & 3G Criminal Practice Directions  EWCA Crim 1631), The Advocates Gateway – Effective Participation of Young Defendants, Toolkit 8, 21 October 2013
- 4. Questioning should be controlled, this should be agreed at a pre-trial ground rules hearing, see The Advocates Gateway – Ground Rules Hearings, Toolkit 1(c), 21 October 2013
- 5. Article 6(1) European Convention on Human Rights