Dr Edmore Masendeke, Alliance for Inclusive Education
Keywords: Mental health conditions, learning disabilities, intermediaries, access to justice, UNCRPD, ECHR, fair trial, human rights, England and Wales, procedural fairness, reasonable accommodation
Introduction
Defendants with mental health conditions or learning disabilities often require communication support to understand court proceedings and participate effectively in their defence. Without this support, they can be placed at a significant disadvantage, reducing the likelihood of a fair, just, and appropriate outcome (O’Mahony, 2012; Giuffrida and Mackay 2021). Therefore, it is essential to provide communication support where needed to protect their right to access justice, particularly the right to a fair trial (Giuffrida and Mackay 2021). Providing such support can also reduce the risk of individuals being found unfit to plead (Gooding and O’Mahony, 2016) or being wrongfully convicted (Giuffrida and Mackay 2021).
This paper analyses international human rights law regarding the provision of communication support to defendants with mental health conditions or learning disabilities. It situates the analysis within the broader obligations of the UK under the UN Convention on the Rights of Persons with Disabilities (UNCRPD), the European Convention on Human Rights (ECHR) and relevant European Union law (EU law). With reference to these standards, this paper also examines the extent to which such support is available in England and Wales, identifies the barriers to accessing it, and recommends relevant improvements.
Methodology
This research adopted a socio-legal research design, combining doctrinal legal research, document analysis and empirical research methods to achieve the research aims.
The doctrinal component of this research involved the examination of human rights treaties––including the UNCRPD and ECHR––alongside EU law and domestic legislation such as the Youth Justice Criminal and Evidence Act 1999, the Coroners and Justice Act 2009 and the Equality Act 2010. Case law and criminal procedural rules were also examined to evaluate the interpretation and application of these obligations. This was supplemented by the review of secondary sources, including Criminal Practice Directions, the Equal Treatment Benchbook, the Advocate’s Gateway Toolkits, academic literature and NGO reports.
Document analysis was conducted on the Concluding Observations of the UNCRPD Committee to interpret how the Committee expects State Parties to implement Article 13 (Access to Justice), particularly in criminal justice contexts involving defendants with mental health conditions or learning disabilities.
Empirical data was collected through two one-to-one telephone interviews with former defendants, a group interview with seven former defendants and a focus group with five court-approved intermediaries and a senior representative of a charity that supports people with learning disabilities and autism who have been through the criminal justice system. Ethical approval for this research was granted by the University of Leeds Research Ethics Committee in February 2021. The data were analysed using thematic analysis, following Braun and Clarke’s six-phase framework (Braun and Clarke, 2012).
Key Findings and Analysis
UNCRPD
The UNCRPD is the only UN convention that specifically applies human rights standards to the situation of disabled people (Njelesani and others, 2012). Article 13 requires state parties to ensure effective access to justice for disabled people on an equal basis with others, including through the provision of procedural and age-appropriate accommodations as well as appropriate training for those working in the administration of justice.
The scope of Article 13 encompasses obligations arising from other articles, including:
- Article 5 on equality and non-discrimination,
- Article 9 on accessibility,
- Article 12 on equal recognition before the law, and
- Article 21 on freedom of expression and access to information, as these are essential to ensuring that persons with disabilities can effectively access justice on an equal basis with others.
The interconnectedness of these provisions is affirmed in the UNCRPD Committee’s Concluding Observations, which also recommend that states provide information in Easy-Read format, provide support for decision-making in legal proceedings, and increase awareness of people with mental health conditions or learning disabilities’ rights among those involved in the administration of justice.
ECtHR
At the regional level, the European Court of Human Rights (ECtHR) has held that a defendant should be able to understand and follow proceedings in order for them to have a fair trial, as per Article 6 of the ECHR (Stanford v UK [2002] para 30-32; SC v UK [2004] para 29). The Court has also held that courts should ensure that steps are taken to facilitate their understanding and participation in the proceedings (V v UK; T v UK (2000) para 83-86; SC v UK [2004] para 28). Similarly, EU law requires member States to identify defendants with ‘vulnerabilities,’ including those with mental health conditions or learning disabilities, and to provide them with relevant assistance and support to ensure that they can understand and effectively participate in the proceedings (Directive 2010/64/EU; Directive 2012/13/EU; Commission Recommendation, 2013).
Domestic level: England and Wales
The Youth Justice and Criminal Evidence Act 1999 introduced a range of ‘special measures’, available to vulnerable and/or intimidated witnesses. One of the special measures introduced to ‘facilitate communication’ between witnesses and the criminal process is the intermediary, provided for in s.29. While ‘Registered Intermediaries’ are available for certain witnesses, the appointment of intermediaries for defendants is not covered by statute. Instead, courts may use their inherent powers to appoint intermediaries for defendants if it enables them to ‘effectively participate’ in proceedings. While the Coroners and Justice Act 2009 introduced a legislative basis for intermediaries for defendants, this has never been implemented. In recent years, guidance on the operation of defendant intermediaries has increased particularly through updates to the Criminal Practice Directions and Criminal Procedure Rules. Notably, in 2022, the role of intermediaries supporting defendants was formalised via the HMCTS Court Appointed Intermediary Scheme.
In addition to intermediary assistance, the Criminal Practice Directions and Equal Treatment Benchbook set out further measures to help defendants understand proceedings and give evidence in court. Both sources echo the requirement on courts to take ‘every reasonable step’ to facilitate the participation of any person, including the defendant (Criminal Procedure Rules, Rules 3.8(3)(a) and (b)). These developments reflect a growing recognition of the importance of communication support for defendants with mental health conditions or learning disabilities.
Empirical findings
Despite these developments, most of the former defendants who participated in this research received inadequate or no support when they went to court. Only three of the nine participants said they received support to help them understand what was going to happen, what was happening, or what had happened in court. Only one of them received support during criminal court proceedings, and none had been supported by an intermediary as a defendant. As a result, most participants indicated that understanding what was happening or what was said in court was difficult.
Furthermore, some participants felt intimidated by being the focus of the courtroom or by the prosecutor’s questioning styles. Several believed that their inability to participate fully may have adversely affected the outcome of their cases. Five key barriers to accessing necessary support were identified:
- Professional knowledge gaps,
- Stigma and discrimination,
- The absence of a formal diagnosis,
- The pace of court proceedings, and
- Inequalities in statutory provisions.
Similarly, focus group participants considered that intermediary applications made on behalf of defendants were sometimes denied due to:
- Judges’ subjective perceptions of intermediary assistance,
- Disregard for intermediary recommendations,
- Overreliance on formal diagnoses or medical opinions, and
- Disregard for previous support the participant had received.
These findings suggest significant variability in how judges interpret and apply the eligibility criteria set out in the Criminal Procedure Rules 2025.
However, my empirical findings are based on a relatively small sample size and therefore there are limitations in terms of generalisability. Nonetheless, the research reveals important insights that provide a snapshot of the experiences of the sampled population.
Conclusion
In conclusion, the current legal and procedural landscape in England and Wales reveals substantial gaps in the provision of communication support for defendants with mental health conditions or learning disabilities. While both international and regional human rights frameworks—including the UNCRPD, ECHR, and EU law— impose obligations to ensure equal access to justice, domestic implementation remains inconsistent and, at times, inadequate.
The absence of a statutory right to intermediary assistance for eligible defendants undermines the principle of equality of arms and risks violating the right to a fair trial. Despite the small sample size, my empirical data further underscores that many defendants in this category struggle to understand or participate meaningfully in court proceedings.
To bridge these gaps, there is a pressing need for statutory reform, increased judicial awareness, and a systemic commitment to embedding reasonable accommodations into the criminal justice process. Without these changes, the rights of defendants with mental health conditions or learning disabilities will continue to be compromised.
References
V Braun and V Clarke, ‘Thematic analysis’ in HE Cooper and others (eds), APA Handbook of Research Methods in Psychology: Research Designs: Quantitative, Qualitative, Neuropsychological, and Biological (Vol 2, American Psychological Association 2012)
Criminal Practice Directions 2023 CrimPRC(23)90(b), paras 6.1.4, 6.1.5, 6.1.6, 6.4.2(a)–(i), 6.4.5 and 6.4.6
Criminal Procedure (Amendment) Rules 2021, SI 2021/40, r 18.27
Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings
Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings
Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings
P Gooding and C O’Mahony, ‘Laws on unfitness to stand trial and the UN Convention on the Rights of Persons with Disabilities: comparing reform in England, Wales, Northern Ireland and Australia’ (2016) 44 International Journal of Law, Crime and Justice 122
J Giuffrida and A Mackay, ‘Extending witness intermediary schemes to vulnerable adult defendants’ (2021) 33(4) Current Issues in Criminal Justice 498
Judicial College, Equal Treatment Bench Book April: February 2021 edition (April 2023 revision, Judicial College 2021) https://www.judiciary.uk/wp-content/uploads/2023/04/Equal-Treatment-Bench-Book-April-2023-revision-2.pdf accessed 30 June 2023
J Njelesani and others, ‘Using a human rights-based approach to disability in disaster management initiatives’ in S Cheval (ed), Natural Disasters (IntechOpen 2012) https://www.intechopen.com/chapters/30667 accessed 21 September 2023
BM O’Mahony, ‘Accused of murder: supporting the communication needs of a vulnerable defendant at court and at the police station’ (2012) 3(2) Journal of Learning Disabilities and Offending Behaviour 77
NHS England and NHS Improvement, People with a learning disability, autism or both Liaison and Diversion Managers and Practitioner resources (NHS England and NHS Improvement 2019) https://www.england.nhs.uk/wp-content/uploads/2020/01/Learning-disability-and-autism.pdf accessed 15 March 2023
SC v UK [2004] ECHR 263, para 29
SC v UK (2005) 40 EHRR 10, para 28
Stanford v UK [2002] ECtHR, paras 30–32
The Advocate’s Gateway, ‘The Advocate’s Gateway Toolkits’ https://www.theadvocatesgateway.org/toolkits accessed 7 August 2025
V v UK; T v UK (2000) 30 EHRR 121, paras 83–86
Defending Vulnerability 