Effective Participation

Abstract

The notion of "effective participation" is now firmly embedded in the discourse around unfitness to stand trial. It signifies what is essential in determining whether a person has the capacity to be an engaged participant in criminal proceedings. Although it is a concept which has assumed a high profile in the jurisprudence of unfitness to stand trial, both in New Zealand and other English common law jurisdictions, it is still poorly understood. In particular, it is still unclear how "effective participation" engages with statutory and other non-statutory criteria for determining unfitness to stand trial. Does effective participation, in some sense, represent a "flowering" of what is implied in fitness to plead, or does it stand as an independent construct superimposed on statutory.