Monday 27 August 2012 by Emily Frith and Jenny Talbot

Insufficient screening procedures and routine support for vulnerable defendants are placing their right to a fair trial at risk, and solicitors have a key role to play in ensuring defendants get the right support.

The Prison Reform Trust briefing Fair Access to Justice?, explains that vulnerable witnesses are entitled to support, whereas vulnerable defendants do not have the same statutory protection and must rely on the discretion of the individual court and on the common law. The briefing paper states that vulnerable defendants should be entitled to the same level of support.

High numbers of children and adults who offend have particular support needs, which, if left unmet, can affect their ability to participate effectively in court proceedings and compromise their right to a fair trial as protected by Article 6, European Convention on Human Rights. Defendants can be made vulnerable in court due to their young age and developmental immaturity and 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 one in 15 prisoners has a learning disability (between 5 and 10%)
• Seven out of 10 (75%) 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, a defendant with autism may be extremely anxious in a strange environment, such as a court. Someone with a low IQ or 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 under pressure, may try to appease other people.

Our research found 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 a fifth said that when they appeared as a defendant in court they didn't understand what was going on or what was happening to them; some didn't understand 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.

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.'

'The solicitor chatted to me and told me not to worry. I was confused by all the adjournments, but 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.

One important element of 'special measures' that could be provided is an intermediary. The role of an intermediary is to facilitate two-way communication between the vulnerable individual and other participants in the legal process, and to ensure that their communication is as complete, accurate and coherent as possible. 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 neither registered nor regulated. The practice of 'registered' and 'non-registered' intermediaries - potentially in the same trial and paid different fees - is anomalous and some courts are now seeking only to appoint registered intermediaries.

Fair Access to Justice argues that the statutory provision of special measures for vulnerable defendants, including intermediaries, together with other reasonable adjustments, should be used routinely to enhance an individual's capacity to participate effectively in court proceedings, and to help ensure fitness to plead. This in turn will help to ensure access to justice for both the defendant and the victim.

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. 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.

Vulnerable defendants of any age will need support from the point of arrest, while preparing for their trial and throughout court proceedings. Solicitors have a crucial role 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. The Prison Reform Trust is lobbying for such guidance to be made available, and in the meantime the Fair Access to Justice briefing paper explains how an intermediary may be found for a vulnerable defendant.

Emily Frith is a research associate and Jenny Talbot is a director of the Care not Custody Programme, The Prison Reform Trust