Mental Health, Autism & Learning Disabilities in the Criminal Courts

Information for magistrates, district judges and court staff

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b. Right to a fair trial

The right to a fair trial is enshrined in the criminal courts of England and Wales. It is protected by the common law and Article 6 of the European Convention on Human Rights, which was incorporated into British law by the Human Rights Act 1998. It states that everyone charged with a criminal offence should be presumed innocent until proven guilty by law, and establishes five minimum rights for the defendant.

These are:

  • to be informed properly, in a language which he or she understands and in detail, of the nature and cause of the accusation against them
  • to have adequate time and facilities for the preparation of their defence
  • to defend themselves in person or through legal assistance of their own choosing or, if he or she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require
  • to examine or to have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them
  • to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court.

Subsequent case law has strengthened these minimum rights. In SC v UK (2004) the European Court of Human Rights ruled that the applicant’s right to a fair trial had been breached because he had not had ‘effective participation’ in the trial. The court went on:

...effective participation in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court.

The defendant should be able to follow what is said by the prosecution witness and, if represented, to explain to his own lawyers his version of events, point out any statement with which he disagrees and make them aware of any facts which should be put forward in his defence (SC v UK, 2004).

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