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Advocate’s Gateway Toolkit – supporting participation in courts and tribunals

The Advocate’s Gateway: Supporting participation in courts and tribunals (29 September 2020) 

The Advocate’s Gateway have published a new toolkit (toolkit 19) on supporting participation in courts and tribunals. Unlike previous toolkits which offer practical advice in relation to best engaging lay participants with the legal justice system, this update considers more generally what participation entails, why it matters and the implications for practitioners who work with lay participants in courts.

Details 

The toolkit outlines a provisional framework called ‘Ten Points of Participation’ to guide practice as well as future policy and research aimed at supporting participation in proceedings.

The ten points are as follows:

  1. The provision and/or elicitation of information for the court (being able to understand the relevant documents and express themselves)
  2. Being informed about proceedings (understanding the case against them and the process of the proceedings)
  3. Having legal representation (instructing legal representation)
  4. Protection of well-being (making adjustments for any well-being issues)
  5. Being managed (the ‘management’ of the lay user, such that disruption to proceedings is minimised)
  6. Being present (presence at proceedings)
  7. The exercise of legal rights (ensuring a trial is fair)
  8. Enabling court decision making (ensuring that individuals can give their best evidence to inform decision making)
  9. Legitimation of court processes and outcomes (ensuring the participant’s experience of the system is fair)
  10. Potential therapeutic benefits (ensuring that participation offers the lay user potential therapeutic benefits)

To best use these Ten Points it suggests practitioners consider the following questions:

  • Which aspects of participation, if any, are important to explain to their clients and witnesses?
  • Will it be beneficial to discuss explicitly with lay users their expectations of participation, and how their participation contributes to the overall hearing process?
  • How the Ten Points of Participation could inform witness preparation?
  • How the Ten Points of Participation could inform advice to clients

Those responsible for case and hearing management (including both the judiciary and the magistracy) are also encouraged to consider how the Ten Points of Participation could inform judicial case management

Commentary

The toolkit is an important reminder that research shows that ‘traditional’ hearings can be marginalising and disempowering for lay users, in particular, for children.

The toolkit encourages practitioners to reflect on the Ten Points of Participation and use them to inform their own approach to lay user participation. Each child is different and having more open and fluid principles to consider may be a more useful approach in ensuring the specific needs of a child are met.

Indeed, the increased use of remote hearings may add new and additional barriers to participation. Practitioners have a key role to play in ensuring a lay user’s participation is as effective as possible.

Although the judiciary also have an obligation to consider the participation of lay users, it is essential a practitioner highlights any concerns they have regarding a child’s engagement with proceedings in order for any appropriate adjustments be made.

Written by Hannah Williams (Barrister at 3 Temple Gardens) in collaboration with the Youth Justice Legal Centre.