Abstract

The right of an accused to participate effectively in a criminal trial is protected by Article 6 of the European Convention on Human Rights. Defendants under the age of 18 years are, by virtue of their age, considered vulnerable. It is therefore ‘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’. A failure to do this would constitute a ‘travesty’. This chapter argues that in England and Wales the legal mechanisms for identifying, evaluating and addressing barriers to young defendants’ effective participation are inadequate. It argues that this may render the participation of many young defendants ‘non-participatory’ or ‘tokenistic’, undermining their right to a fair trial under Article 6 of the ECHR. Furthermore, it uses neuroscientific research to argue that young defendants are, by virtue of their age and corresponding biological immaturity, prone to experience participatory difficulties and that such research highlights the need for a more effective legal framework to secure young defendants’ rights to effective participation. It argues that neuroscientific research could, and should, be used to develop more effective and robust legal safeguards for defendants under the age of 18 years.