Legal Action Group

Rebecca Seden, policy and campaigns officer at three charities, Voice UK, Ann Craft Trust and Respond, argues that, in order to increases access to justice in the criminal justice system, defendants with learning disabilities should be entitled to the same special measures that victims and witnesses with learning disabilities are currently entitled to in court.

Voice UK, Ann Craft Trust and Respond work together with and for people with learning disabilities, on particular issues of abuse and crime.

Each organisation has its own area of expertise; Voice UK supports people with learning disabilities who have experienced crime or abuse, and also their families, carers and professional workers. The Ann Craft Trust works with staff in the statutory, independent and voluntary sectors in the interests of people with learning disabilities who may be at risk from abuse. Respond provides a range of services, including psychotherapy, to victims and perpetrators of sexual abuse who have learning disabilities, and training and support to those working with them. 

The aim of achieving equal access to justice for people with learning disabilities has always been a major aspect of each organisation’s work, and now forms a key campaign.

The most recent substantive Government paper on learning disability is ‘Valuing People’ [Valuing People A new Strategy for Learning Disability for the 21st Century, Cmnd 5086 March 2001] which defines a learning disability as including the presence of: A significantly reduced ability to understand new or complex information, to learn new skills (impaired intelligence), with; a reduced ability to cope independently (impaired social functioning); which started before adulthood, with a lasting effect on development.

It has been well reported that historically, people with learning disabilities have not had access to justice compared to the general population. The reasons for this are manifold, and include underreporting of crimes against and by people with learning disabilities, a high attrition rate (see Home Office study on rape ‘A gap or a chasm’ February 2005), real and perceived problems in evidence gathering and a societal reluctance to accept people with learning disabilities as equal people.

There have been some developments in the law that have gone some way to addressing this, particularly in the last ten years.

The Youth Justice and Criminal Evidence Act 1999 contains ‘Special measures’, in Part II, Chapter I of the Act. These measures are available for vulnerable or intimidated witnesses to support them to give their best evidence in police interviews and in court. They include the use of screens in court, giving evidence by a television link and the removal of wigs and gowns in court.

Special measures are available for use if they help vulnerable and intimidated witnesses improve their evidence, but it is ultimately the discretion of the judge what measures are permitted in his or her courtroom.

However, the part of the Act which introduces special measures, s16, states ‘For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section’ (emphasis added). This exception seems to us an injustice.

A recently introduced special measure, the use of an intermediary contained in s29 of the Act, is currently being piloted in six different areas of England and Wales, and is available for vulnerable witnesses. An intermediary is essentially a go-between for a vulnerable witness and the courts, defence team, or prosecution team. Intermediaries are often speech and language therapists by profession, though not exclusively, and receive training on the criminal justice system, so they gain expertise in achieving the best quality evidence from people who may not be able to do so unassisted.

They are independent and neutral, and are there solely to ensure that the witness understands the questions asked of them, and that others understand the witness’ answers. An intermediary’s responsibility is to the court. Intermediaries can also make a report for the court, advising them of what language is best to avoid, for example complicated questions, or questions that rely solely on the recall of certain dates and times, which may be more difficult for certain witnesses to understand and answer.

The intermediary will assess and familiarise themselves with the way in which the vulnerable witness communicates. In addition to assisting at interview, intermediaries can also be appointed to assist in the giving of evidence by a witness at trial.

This special measure applies equally to defence and prosecution witnesses. Although defendants are not covered by the legislation, it may even be possible to apply for an intermediary to assist those with communication difficulties on the basis of the court’s inherent discretion, but it is not enshrined in statute. Victims and witnesses with learning disabilities come within the definition ‘vulnerable’. This entitles them to be considered for the range of special measures within the criminal justice system.

A vulnerable witness is classified as one of the following (as per s16 Youth Justice & Criminal Evidence Act 1999):

• is under the age of 17 at the time of hearing
• suffers from mental disorder within the meaning of the Mental Health Act 1983; or
• otherwise has a significant impairment of intelligence and social functioning (learning disability); or
• has a physical disability or is suffering from a physical disorder

Our organisations have to date focussed on victims and witnesses in the criminal justice system, but we have recently turned our attention to those on the other side of our adversarial legal system, suspects, defendants and offenders.

The identification of this ‘vulnerability’, be the person a victim or alleged offender is, as you can see, critical.

The first point of identification is usually upon first contact with the police. We know that the rate of identification can often be poor. It is obviously crucial that a positive identification is made, if the support that can and should be made available is to be utilised.

Clearly identification by police can never be 100% accurate. The situation is hindered by the fact that a proportion of people are reluctant to self-identify as being vulnerable and needing assistance when questioned by the police. [Clare and Gudjonsson, 1991]

A key benefit for a suspect with a learning disability at a police station is the presence of an appropriate adult.

According to Mencap, ‘the role of an appropriate adult is to ensure that the suspect’s rights are respected and that they understand the procedures. This should minimise the risk of unreliable evidence such as false confessions.’ The appropriate adult must be present when a vulnerable adult suspect is interviewed by the police, or receiving a caution.

The role of an appropriate adult is markedly different from an intermediary. We feel that suspects and defendants would benefit from the skill of an intermediary, as witnesses do.

As we know from research and our work, the experience of being questioned and of giving evidence can be highly distressing. See in particular, the work of the NSPCC and Victim Support ['In their own words: The experiences of 50 young witnesses in criminal proceedings'] in bringing to light the experiences of child abuse victims that are ‘abused again in court’.

People with learning disabilities, perhaps more so than the general population, will find this process traumatic. It is fair to say that not all police officers will understand how a learning disability can affect someone, and how they will need to alter their communication and general interviewing techniques. It is certainly true that most police officers and lawyers will not have had training on how best to do this. Training is an area that we feel must be changed, in order to provide the best opportunity to give evidence, and therefore, for the case of a victim with learning disabilities, to be taken seriously.

Home Office policy [circulars 66/90 and 12/95] advocates clearly that wherever possible mentally disordered offenders should receive care and treatment from health and social care services, rather than the penal system. So it is the preferment of Government that cautioning and/or admission to hospital, or support in the community should be considered before deciding that prosecution is necessary.

This will have a number of effects upon the offender, which will include;

• They are hopefully more likely to receive the support that they require, rather than purely punitive treatment, which may be of no long term help.
• People may not truly understand the gravity of their actions, and therefore may lead to re-offending.
• People may never get the opportunity to legally prove their innocence.

One previous client at Respond was accused of raping a child, and immediately placed in a secure unit and put on the Sex Offenders Register, without any due legal process. He is labelled with this, and will realistically be ostracised and be limited in terms of where he might work because of this decision for the rest of his life. We must question how this sits with Article 6 of the European Convention on Human Rights.

It is also worth noting that if the offence is perpetrated against a person without learning disabilities, the case is much more likely to be pursued by the police and CPS.

It is the case that many people with learning disabilities do end up in the prison system. It is not known how many there are, but it is doubtful that all of these receive adequate support within mainstream prisons. A current client of Respond was imprisoned in a generic prison for a sexual offence, and received no special support whatsoever. The Sexual Offenders Treatment Programme would not accept him because of his learning disabilities. One has to question whether this will really reduce the risk of him re-offending. On the other hand, we are not saying that the man should have gone ‘unpunished’, but access to appropriate treatment is essential if re-offending is to become less likely.

There is also concern that people with learning disabilities are being meted out Anti-Social Behaviour Orders (ASBOs) inappropriately, such as the young boy with autism who was given an ASBO forbidding him from staring over a neighbour’s fence, and a boy with Tourette’s syndrome received an ASBO banning him from swearing in public. A recent survey of children that have received ASBOs revealed that a third of them have learning disabilities (BIBIC 2005). One must question the benefit of these orders, when it seems to us what is needed is support and understanding.

There have been high profile cases of miscarriages of justice for people with learning disabilities. The cases of Derek Bentley and Stephen Downing illustrate what the consequences will be when adequate support is not available.

Stephen Downing served twenty-seven years in prison for a murder that he always denied. He had learning disabilities, and was arrested when he was seventeen for the murder of a young woman in Derbyshire. During police interviews, Downing was never told that he had been arrested or informed of his rights to have a solicitor. Police officers interrogated him for nine hours and shook him to keep him awake. Downing could hardly read or write, but eventually signed a confession. Downing was found guilty and imprisoned for murder. He was finally released in 2001 on bail, but his family fought to clear his name totally, and in 2002, his conviction was overturned.

Another similar case is that of Derek Bentley’s, containing the infamous phrase ‘let him have it’. Derek had learning disabilities and was hanged in 1953. He was finally pardoned in 1998, forty-five years after he died; the Judge confirmed that Bentley had indeed been denied a fair trial.

It is clear that the attitude of the police, CPS and other legal professionals is instrumental in determining what kind of support people with learning disabilities receive. We think it is absolutely essential that people working in the criminal justice system, the police, lawyers and the judiciary, receive training about vulnerable witnesses, including people with learning disabilities and people with mental health problems. Since our legal system is reliant on the giving of evidence, it follows that people who have different intellectual abilities and/or different communication methods must be supported to give that evidence, rather than merely ignored. It is fair to say that for some professionals this will present more of a change than others, but the old belief that people should be mystified, bamboozled and tricked in the courtroom must change.

We believe that the likelihood of cases like those of Derek Bentley and Stephen Downing happening again may be reduced if defendants with learning disabilities were entitled to the same special measures that victims and witnesses are in court.

It is also clear that there must be a better understanding and awareness of learning disability, and what makes someone vulnerable within the legal system. This will represent a huge step towards equality for all people with learning disabilities in the criminal justice system.

Rebecca Seden
Policy & Campaigns Officer
Voice UK, Ann Craft Trust, Respond

www.voiceuk.org.uk
www.anncrafttrust.org
www.respond.org.uk

Monthly journal of the Legal Action Group
March 2006