Court system must address vulnerable defendants' needs

A growing number of offenders have particular support needs which, if left unmet, could compromise their right to a fair trial as protected by article 6 of the European Convention on Human Rights. Solicitors have a crucial role to play in ensuring that vulnerable defendants are identified and provided with appropriate support.

Already, vulnerable witnesses in a trial are given access to special measures to enable them to understand and participate effectively in court proceedings. Special measures are intended to reduce the stresses associated with the court environment and to support any communication needs, so that the individual can give his or her best evidence. They include giving evidence in private or by video link, the removal of wigs and gowns in court, and the provision of intermediaries.

Vulnerable defendants do not have equal access in statute to the same support. In its latest briefing paper on this issue the Prison Reform Trust is calling for a change in legislation to address this anomaly. The paper, 'Fair Access to Justice?', nevertheless suggests that there is much that can be done within the current system to identify and support vulnerable defendants.

Vulnerability factors

Defendants can be made vulnerable in court due to their young age and developmental immaturity or because of particular disabilities, such as learning disabilities, mental health needs and communication difficulties. Research demonstrates that:

? A third of adult prisoners have an IQ of less than 80 (Mottram 2007)

? Around 1 in 15 offenders has a learning disability (between 5 and 10 per cent)

? 7 out of 10 (75 per cent) adult prisoners have a dual diagnosis (mental health problems combined with alcohol or drug misuse) (Offender Health Research Network, 2009)

Left unsupported, these people can face a range of difficulties during court proceedings. For example, someone with a learning disability could be unable to understand what is being said to them or to follow the evidence given by a witness. They may have difficulty recalling information, and take longer to process information. They may be acquiescent and suggestible, and under pressure, may try to appease other people (Clare 2003; Home Office Research Findings, 44; Talbot 2008).

The Prison Reform Trust has undertaken extensive research on the experiences of offenders with learning disabilities and difficulties in the criminal justice system. ?Of particular relevance, the research showed that:

? Around two thirds of prisoners with learning disabilities and difficulties experienced problems with verbal comprehension skills, including difficulties understanding certain words and in expressing themselves, and

? Around one fifth said that when they appeared as a defendant in court they didn't understand what was going on, what was happening to them, why they were in court, or what they had done wrong (Talbot, 2008).

This is what two people with learning disabilities said: 'The solicitor came to talk to me but used big words and I found it difficult to understand.'

'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.'

Such experiences demonstrate the vital importance of the provision of appropriate support for vulnerable defendants. They also call into question whether vulnerable defendants are routinely being supported to participate effectively in their trial. Case law from the European Court of Human Rights explains that effective participation 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...The defendant should be able 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]).

In a report following an enquiry into the human rights of adults with learning disabilities, the Joint Committee on Human Rights expressed concern that 'the problems highlighted by this evidence could have potentially very serious implications for the rights of people with learning disabilities to a fair hearing, as protected by the common law and by article 6 ECHR.' (JCHR, March 2008).

Solicitor's role

While it is difficult to gauge how many offenders with impairments and disabilities are unable to participate effectively in court proceedings, there is clearly a real danger that their right to a fair trial is being compromised.

There are few special measures available in statute for vulnerable defendants. Under the Equalities Act, however, necessary practical assistance and facilities ('reasonable adjustments') should be made and solicitors can help with this. Research by the Prison Reform Trust has found that defendants with learning disabilities valued the help that had been given by their solicitors. 'The solicitor read everything to me and explained everything. He was really good', said one. Another said: 'The solicitor chatted to me and told me not to worry. I was confused by all the adjournments, the solicitor and barrister explained'.

The most important role that a solicitor can play in this kind of situation is to recognise when a client has a support need, make adjustments to his or her own practice (for example using simple language and checking for understanding) and to find out about the wider help that can be offered, for example, by contacting local liaison and diversion services.

One example of such wider help is the provision of an intermediary. An intermediary is there to facilitate two-way communication between a vulnerable person and other participants in court proceedings, such as barristers and judges. While intermediaries appointed to support vulnerable witnesses are registered and subject to a stringent selection, training and accreditation process, and quality assurance, regulation and monitoring procedures, intermediaries for defendants are not required by law to be either registered or regulated. It should be easier for solicitors to source registered intermediaries for vulnerable defendants.

Following on from the recommendations of the Bradley Review (Department of Health, 2009), the government has made a commitment to invest £50m in establishing a network of liaison and diversion services accessible to all police stations and courts by 2014.

New services

These services will work with criminal justice staff to help identify people with a mental health problem or a learning disability. An essential part of the role of these new services should be to make sure the courts know about the support needs of vulnerable defendants and be instrumental in ensuring that those needs are met during the trial. But to work effectively, liaison and diversion services should be required to provide guidance to judges, lawyers and criminal justice staff on how particular impairments and disabilities can manifest themselves in court proceedings. Solicitors should be aware of the development of these new services locally and make use of the expertise available to identify and address the support needs of their defendants.

Vulnerable defendants of any age will need support from the point of arrest, as they prepare for their trial, and throughout court proceedings. Solicitors have a key part to play in recognising when their client might be vulnerable and in helping to facilitate appropriate support. However, securing such support can be problematic. Many solicitors tell us that they would like further guidance and training on how to ensure a vulnerable defendant is supported properly in advance of and throughout their trial. Some information is available in the Fair Access to Justice? briefing paper but official guidance and training should be made available, together with further provision of special measures for defendants in court proceedings.