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Fair Access to Justice?support for vulnerable defendants

in the criminal courts

Jenny Talbot, Prison Reform Trust&Graham Keeton, Working for Justice Group/KeyRing

24 April 2013

What we will cover:

Who is vulnerable?

Prevalence of certain conditions

The ‘so what?’ factor

Special measures and reasonable adjustments

New liaison and diversion services

Recommendations

Resources.2

First – who we are:

Jenny and the Prison Reform Trust

Graham and the Working for Justice Group and KeyRing Living Support Networks

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Who is vulnerable?

…children and young persons under 18 or adults who suffer from a mental disorder within the meaning of the Mental Health Act 1983 or who have any other significant impairment of intelligence and social function… are referred to collectively as ‘vulnerable defendants’.

Consolidated Criminal Practice Direction (2011)

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Prevalence and child offenders:

60% of children who offend have communication difficulties and, of this group, around half have poor or very poor communication skills

A quarter of children who offend have very low IQs of less than 70

43% of children on community orders have emotional and mental health needs; the prevalence is much higher in custody.

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Prevalence and adult offenders:

Generally acknowledged that 5 – 10% of adult offenders have learning disabilities

39% of adult offenders under supervision in one probation area had a current mental illness and 49% had a past/life time mental illness

75% of prisoners have a dual diagnosis (mental health problems combined with alcohol or drug misuse).

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What is a learning disability?

The World Health Organisation defines learning disability as a ‘reduced level of intellectual functioning resulting in diminished ability to adapt to the daily demands of a normal social environment.’

An IQ of 50-69 is indicative of ‘mild mental retardation’ or mild learning disability

Variations on this definition are followed by the four UK administrations.

Learning disabilities – so what?

Limited language ability, comprehension and communication skills:

– Difficulty understanding certain words – Difficulty understanding and responding to questions – Difficulty reading body language and following social cues

Limited memory capacity:– Difficulty recalling information – Take longer to process information – Difficulty ordering and sequencing

Can be acquiescent and suggestible; under pressure, might try to appease others

Frequently unable to read and write very well, or at all.8

What defendants with LD said:

The judges don’t speak English; they say these long words I have never heard of in my life.

I couldn’t really hear. I couldn’t understand but I said ‘yes, whatever’ to anything because if I say, ‘I don’t know’ they look at me as if I’m thick. Sometimes they tell you two things at once.

I’m not good at speaking and they don’t listen. I needed more time to explain myself.

There’s no one to explain things to you. They tell you to read things and in court you can’t just ask for help. The judges think you can read and write just because you can speak English.9

Special measures:

Youth Justice and Criminal Evidence Act, 1999– Vulnerable defendants excluded from ‘special

measures’

Coroners and Justice Act, 2009 – provision for intermediaries for vulnerable

defendants but not implemented

Case law, for example:– C v Sevenoaks Youth Court (2009)– R v Great Yarmouth Youth Court (2011).10

Reasonable adjustments:

Equalities Act: ‘reasonable adjustments’ should be made to ensure that discrimination against people with disabilities does not occur

The vexed question of Registered and non-registered intermediaries.

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Liaison and diversion services:

Difficulty knowing who they are:– ‘Hidden disabilities’– Cloak of competence

Bradley Report 2009; new liaison and diversion services by 2014

Identification in police custody:– Diversion away from CJ and into healthcare– Proceed with necessary support– Local information to support sentencing decisions.

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Liaison and diversion services:

Offender Health Collaborative

National Liaison and Diversion Development Network:– http://www.nlddn.org.uk/

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Fair Access to Justice?

Support for vulnerable defendants in the criminal courts

Prison Reform Trust

June 2012

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Recommendations:

Special measures for vulnerable witnesses and vulnerable victims equitable in law

Use of special measures and reasonable adjustments recorded and reviewed

Greater clarity on where responsibility lies for ensuring an individuals support needs are recognised and met – liaison and diversion services?

Information sharing: police/health/courts Awareness training – ‘so what?’ factor.

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Resources:

Sentence Trouble www.sentencetrouble.info

Positive Practice, Positive Outcomes http://tinyurl.com/4pcwat4

Autism: a guide for criminal justice professionalshttp://www.autism.org.uk/cjs

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Further reading:

The Bradley Report http://tinyurl.com/cafvcn

Vulnerable Defendants in the Criminal Courtshttp://tinyurl.com/6eyjvu2

Prisoners Voices: experiences of the criminal justice system by prisoners with learning disabilities http://tinyurl.com/7o4ufp3

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Thank you

jenny.talbot@prisonreformtrust.org.uk

www.prisonreformtrust.org.uk

http://www.prisonreformtrust.org.uk/Portals/0/Documents/FairAccesstoJustice.pdf

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