Imbalance in Justice for Vulnerable?

25 August 2013

The Prison Reform Trust has issued a briefing entitled 'Fair Access to Justice?'.  The briefing explains that whilst vulnerable witnesses appearing on behalf of the prosecution in Court are entitled to support, vulnerable Defendants do not have the same statutory protection and have to rely on their lawyer pursuing that support and hoping that each individual Court will favourably apply its discretion.  Vulnerable Defendants should be entitled to the same level of support as witnesses, and the report states that insufficient screening procedures and the lack of acceptance of the need for support of vulnerable Defendants is placing their right to a fair trial at risk.  Solicitors acting for Defendants have an important role to play in ensuring that the appropriate support is obtained.  

Without the appropriate support a Defendant's ability to participate effectively in Court proceedings can be unfairly affected, effectively compromising their right to a fair trial under Article 6 of the European Convention on Human Rights.  Defendants can be vulnerable for a number of reason including young age, developmental and intellectual immaturity and specific disabilities such as learning disabilities, mental health disorders or illnesses and communication problems.  Research demonstrate that a third of adult prisons have an IQ of less than 80, that around 1 in 15 prisons has a learning disability and 75% of adult prisons have more than one problem that would put them in the vulnerable category.  

Such people without the necessary support an find themselves in difficulty during Court proceedings.  Depending on the individual disability a Defendant can become extremely anxious because of the strange environment they find themselves in, and those with learning disability or a low IQ will find themselves unable to understand what is being said or to follow the evidence being given by the various witnesses in the trial.  A lot of people in this position will often not want to draw attention to the fact that they have a difficulty as they have spent their life being victimised because of it.  There are others who will have difficulty recalling information and who have a natural wish to comply under pressure and say what they think the person asking them the questions wants to hear.

The Prison Reform Trust research found that approximately two thirds of prisoners with learning disabilities and difficulties experience problems with verbal comprehension skills including difficulties understanding certain words and also in expressing themselves.  Around a fifth said that when they appeared as a Defendant in Court they did not understand what was going on or what was happening to them.  Some did not understand why they were in Court or what it was they were supposed to have done that was wrong.  

As Solicitors we have to be very aware that those who are at a disadvantage need help. One person who spoke to the Prison Reform Trust researchers said "The Solicitor came to talk to me but used big words and I found it difficult to understand."  Another said "I could not really hear.  I could not understand but I answered 'yes, whatever' to anything because if I say 'I do not know' they look at me as if I am thick."

Many clients that people may be embarrassed that they do not understand what is being said, so care must be taken to try and not put the Defendant in the position of having to draw a problem of this nature to their attention.  Those of us who practice in criminal law have often heard a client tell us that they said what they said in their interview at the police station because they were prepared to say anything just to hasten their release.  Whilst this may sound unbelievable to those who have never been in that situation, it is well known to those who practice in the area of criminal defence.  As part of the research for the report, those who had been provided with the relevant help said that they really valued it, one contributor saying "The Solicitor read everything to me and explained everything.  He was really good.  The Solicitor chatted to me and told me not to worry.  I was confused by all the adjournments but the Solicitor and Barrister explained."

It is most important that Solicitors are aware of these difficulties and can recognise the signs when a client needs extra support and to adjust the way that they deal with clients in those situations.  One important way of assisting many vulnerable Defendants is to arrange for the appointment of an intermediary.  This role is to facilitate two way communication between the vulnerable individual and the other parties to the legal proceedings ensuring that communication is as complete, accurate and coherent as possible.  There are a number of registered intermediaries subject to stringent selection, training and accreditation processes.

Solicitors have a crucial role to play in recognising when their clients may be vulnerable and helping to obtain the appropriate support.

This is not legal advice; it is intended to provide information of general interest about current legal issues.