Improving support for learning disabilities in the criminal justice system

After attending the SOLD Network conference on improving support for accused people with learning disabilities, Brian McClafferty considers how Scotland can lead the way in how we support not only vulnerable witnesses but also vulnerable accused.

On August 24 I had the pleasure of attending the ‘Improving Support for the Accused Person with a Learning Disability’ conference, held in Edinburgh and organised by Supporting Offenders with Learning Disabilities (SOLD). With over 100 delegates from a range of agencies, including the SOLD User Group, it promised to be a very interesting and diverse event – and I wasn’t disappointed.

Dan Gunn introduced the conference and Sheriff Andrew Cubie, Deputy Director, Judicial Institute was Chair. The event, being in the shadow of the stand of Hibernian Football Club, ‘kicked off’ with what was to be the most emotive and poignant input. Steve Robertson, Chair of the Law and Human Rights Group for People First Scotland, gave a personal account that identified the issues and concerns for people with learning disabilities in the criminal justice system, setting the scene for the inputs and discussion to follow.

Steve explained that people with learning disabilities need support in all aspects of the criminal justice system for them to be treated justly and fairly, from arrest to throughout the court process. He highlighted that a series of films documenting the experience of others with learning disabilities in the criminal justice system will be made available on the SOLD website. My empathy with and admiration for Steve was complete when he summarised that his personal experience of the criminal justice made him feel “abandoned…isolated…stressful…fearful”.

Following Steve’s input, the Right Hon Lady Dorrian, Lord Justice Clerk, spoke eloquently about ‘Offenders with Learning Difficulties – An Even Playing Field?’. Lady Dorrian stressed that in order to support people with learning disabilities, we need to build on the increasing awareness and support provided to vulnerable witnesses and victims in the judicial system and afford the same level of support to vulnerable accused, including those with learning disabilities. She emphasised that fairness was at the heart of the issue and therefore it is essential that we ensure a vulnerable suspect must fully understand the process and related decisions. The practice of a ‘Ground Rules Hearing’ for vulnerable witnesses was highlighted with the suggestion that this practice should be considered for expansion to the vulnerable accused. Lady Dorian concluded her presentation by stating (or perhaps putting out a challenge) that “Scotland can strive to be a pioneer in providing overall access and support for vulnerable witnesses and vulnerable accused”.

Iain Burke, Law Society of Scotland and Alison Di Rollo, Solicitor General, both continued on the theme that “vulnerable accused with learning difficulties should be afforded the same support as provided to vulnerable witnesses with learning difficulties”. Alison made the valid point that “we need as individuals to recognise that we are all interested in how we deal with the vulnerable accused”. The final speaker, prior to the round table discussion was Joyce Plotnikoff, co-author of ‘Intermediaries in the Criminal Justice System’. Joyce’s input about Intermediaries was certainly illuminating and provided much food for thought about what is required to get it right in Scotland. The input was full of examples as to how Intermediaries have effectively supported vulnerable accused, and testimonies from all those involved in the judicial system about how Intermediaries make the whole process easier and more effective. Joyce outlined that the ‘Criminal Procedure Rules’ and associated ‘Practice Directions’ make it clear that Courts must take ‘every reasonable step’ to facilitate participation of witnesses and the accused, enabling them to give their ‘best evidence’.

Joyce detailed the role of the Intermediaries, who when appointed for the accused at a trial undertake the following:

• Takes an oath and their role is explained to the jury
• Sits alongside the accused in the dock
• Helps the accused follow the trial
• May help contain the accused emotionally
• Flags up potential misunderstandings if the accused gives evidence
• If ground rules are followed, intervention is minimised
• May suggest another ground rule if problems arise/persist

The process for vulnerable accused can also be supported by a Ground Rules Hearing which would happen before the start of a trial. As well as addressing how an intermediary should intervene, the Hearing would also cover the following:

• Ensuring proposed questions are easy to understand
• Timetabling of evidence; overall length; breaks
• Communication aids
• Adaptions to reduce stress
• Modifying the whole trial process for the accused

From a Scottish perspective it is clear we have a glaring gap in how we support vulnerable accused, including those with a Learning Disability, and that the nearest equivalent of the Intermediaries is the ‘Appropriate Adult’. Our challenge is to develop our own equivalent of the ‘Intermediaries’ or to overhaul and radically change the ‘Appropriate Adult’ scheme to ensure it can appropriately reflect that of the Intermediaries. Effective change would clearly involve some level of investment; although arguably some of the cost would be paid for in reduction of trial times and postponed or continued cases due to more effective communication provided by the role of the Intermediaries. Investment would also be required, if developing the Appropriate Adult scheme, to ensure that:

• Appropriate adults have a more proactive role in supporting vulnerable witnesses than is established at present
• It is an independent organisation;
• Appropriate Adults only report to the accused legal representative and cannot be called as a witness
• Where possible, there is a commitment consistency in the actual person supporting a vulnerable accused throughout the criminal justice process.
• Ground Rules Hearings for vulnerable witnesses are extended to vulnerable accused

In conclusion, we have a unique opportunity for Scotland to lead the way in how we support not only vulnerable witnesses but also vulnerable accused. It is therefore important that we forward the arguments and recommendations from SOLD discussed at the conference and outlined in this blog. I would urge those who attended this event, especially from the Crown Office and Scottish Government, to ensure that this issue is highlighted and progressed.

Finally, a big ‘thank You’ to SOLD for an excellent event that has clearly highlighted an area of concern in our criminal justice system.

About our blogger

Brian is an experienced youth practitioner with many years of experience. He joined CYCJ in 2016 from his role as Youth Justice Manager and Lead Officer for Youth Justice in Dumfries and Galloway, and was previously a CYCJ Associate. Find out more.