Tony Bowman, Social Worker with the SOLD network, ARC Scotland
Introduction
Vulnerability means different things to different people, but in the context of our work a vulnerable accused person is one whose ability to understand and communicate is impaired due to a cognitive or neurological reason. The key factors are:
- Cognitive impairment: difficulty processing language, and the justice system uses language that is complex, and unique to itself. Many people will also have an accompanying impaired memory, meaning difficulty in retaining information.
- Low literacy: the written information people encounter in justice is inaccessible.
- Anxiety: It is dismissive to say, “everyone is nervous about standing trial.” Of course, this is true, but neurodivergent people often experience anxiety on a level that others cannot conceive.
There is nothing new in recognising that court is a challenge for a vulnerable accused person. But how much insight do we have into just how incredibly difficult going to trial actually is. Once you have been charged, you are in the system. The only way you can clear your name is to plead not guilty and go to trial. In the experience of those working in the Supporting Offenders with Learning Disabilities (SOLD) network, the stress, anxiety and paranoia involved with this are almost unbearable.
Methodology
The content of this article is informed by professional experience as a social worker, working alongside vulnerable accused people attempting to navigate their way through the justice system in Scotland, and observing the challenges they encounter, especially when trying to defend themselves once charged with an offence.
Barriers to a fair trial for vulnerable accused
The barriers begin long before a vulnerable accused person gets near a court room. To begin with, they frequently have to deal with defence solicitors who may not understand their needs and consequently offer diminished legal representation. Frequently, a defence agent does not have the experience, knowledge or skill to recognise that their client has difficulty with understanding and communication. This is compounded if the defence agent does not appreciate the value of bringing in additional support that could help to facilitate effective communication between themselves and their client (see SOLD’s Defence Solicitors’ Practice Guide).
Instructing a solicitor is a critical part of the legal process, and the decision to plead guilty or not guilty is an area of particular vulnerability. Only a minority of cases go to trial. The majority are settled by guilty plea. In cases involving vulnerable accused, we suspect the proportion of people pleading guilty is higher than average, and we have observed reasons why this might be.
The practical experience of SOLD supporting people in the justice system confirms some of the research findings that there are a multitude of pressures and inducements to plead guilty that can unfairly disadvantage a vulnerable accused person (Peay & Player, 2018). For instance, sentence discounting creates the perfect conditions. We observed a defence agent only explaining the options to a learning-disabled client in terms of the sentence he could expect to receive depending on how he chose to plead. Yes, he could plead not guilty, but if the verdict went against him, he could get a prison sentence. Whereas, if he pleaded guilty, he would almost certainly not go to prison. This narrowed his options and steered him in a certain direction. He did not want to go to prison, so he had better plead guilty. A decision he has always regretted.
Instructing a solicitor that you want to plead not guilty is impossible for a vulnerable accused who has no knowledge of what a credible defence might be. This is especially so in cases where there is no dispute that the incident happened, but the defence might be the absence of mens rea. Even if a vulnerable accused does plead not guilty, they face a further barrier which others do not, which is their fitness to stand trial being challenged. In principle, no person should be unfit to stand trial, it is everyone’s human right to have your day in court, and the support should be available for all who need it.
Another significant barrier is that the justice system uses language in its written communication that is inaccessible to many adults. According to the Scottish Government website, the average reading age of an adult in Scotland is nine years old. To avoid excluding as many people as possible, we would need to pitch written information at the level of children learning to read such as in Eric Carle’s children’s book ‘The Very Hungry Caterpillar’.
Lastly, anxiety plays a large role. It can influence a guilty plea to avoid the stress of a trial; or prevent people from attending, and incurring additional penalty; at worst, it can drive people to self-harm.
And the trial:
Without support and reasonable adjustment, vulnerable accused are hugely disadvantaged at trial: if they have a defence team who do not understand their needs; if their defence team do not communicate their needs to the court and request special measures; if they are not supported to regulate their emotions (many autistic people can be non-verbal under stress, which means they cannot give their best evidence); if they are not communicated with in a way they can understand.
One autistic man told us he did not understand the cross-examination questions, such as, “I put it to you that…”. He said he didn’t understand that was a question, so stood there silently. He also said that being non-verbal due to stress, he could only manage to give yes / no answers to any question.
All of these mean a vulnerable accused cannot give their best evidence and therefore cannot have a fair trial.
So, what does work?
This is based on learning from a recent case in which we supported a man with very complex needs and multiple diagnoses. Here is a summary of what made a difference for him:
Prior to trial:
- A proactive defence agent who recognised and acknowledged his vulnerability and acted on it by:
- Communicating with the court and applied for additional support and reasonable adjustment.
- Organising a court familiarisation visit.
- Organising a face-to-face meeting with the Judge.
- Involvement of additional support:
- Making all communication understandable.
- Translated the indictment into a more accessible format and supported him to understand the charges
- Having support to prepare for and participate in consultations. This allowed him to articulate his own defence effectively
- Being able to phone and speak to someone when needed. This helped him to manage his anxiety and keep him grounded.
At trial:
- Judge approval for additional support throughout the trial.
- Having a support plan – this was person-centred, designed to the person’s individual needs, and followed a trauma informed approach, supporting the person to take the lead in designing it himself.
- Use of fidget devices to manage anxiety
- Limiting court sessions to 45 minutes
- Extra breaks as required
- Agreed signals between accused, supporter and defence agent to indicate need for a break
- Provision of a quiet room to decompress in private
- Having a plan for making the best use of extra breaks
- Approval to give evidence whilst seated. This was not to do with mobility. It was because he will pass out if he becomes overwhelmed by stress. Worrying about this would distract him from being able to give his best evidence.
- Intermediate Hearing to discuss and agree support plan.
All of the above was intended to support the vulnerable accused to participate effectively during trial proceedings, and to be able to give his best evidence: essential elements for a fair trial. We need to understand the barriers vulnerable accused face, to know what support is needed.
Conclusion
In conclusion, vulnerable accused people face huge and numerous challenges in the justice system that make it extremely difficult for them to effectively defend themselves against criminal charges and have a fair trial. This can only be mitigated by the provision of relationship-based support that begins early in the process of developing their defence, and continues throughout the trial.
