EHRC reports on inclusive justice

16 June 2020 by

Ten years after the Equality Act came into force, the Equality and Human Rights Commission (EHRC) have published their findings and recommendations in a report entitled “Inclusive Justice: a system designed for all”. Although the report recognises where progress has been made, it also identifies very significant problems.

The inquiry, which covered England, Wales and Scotland, heard from defendants, legal professionals, charities, intermediaries and organisations who help people with what are often referred to as “hidden disabilities” – cognitive impairments, mental health conditions, and neuro-diverse conditions.

The EHRC’s key recommendations focus on the pre-trial phase, when important decisions are made about adjustments and whether the defendant will plead guilty or not guilty. The report is concerned both with participation and also the opportunities and risks arising from the increase in modernisation (for example, video hearings).

The foreword to the report notes the rapid and expansive changes which have taken place during the pandemic. The inquiry was completed before Covid-19 took hold in the UK, however the report notes that the criminal justice system has had to adjust to deal with the challenges of Covid-19. These findings have therefore been published to “inform further decision making at this extraordinary time”.

Reform which addresses “hidden disabilities” is much needed. It is estimated that 40% of people detained in police custody have a mental health condition, that between 5-10% of the prison population has a learning disability and almost half of the male prison population has some degree of traumatic brain injury.

The effects of these impairments can include having a short attention span, being reluctant to speak up, and having extreme anxiety. It is easy to see, therefore, how accessibility in remote hearings may be impacted by an impairment, particularly when considered alongside other recent reports of stress felt by lay participants in remote hearings, who responded to the Civil Justice Council’s recent survey (March 2020). Conversely, the EHRC report notes that when people were helped to engage with the court they saw the process as fairer, and were more likely to obey court orders.

What is effective participation and why is it important?

The EHRC report states that people must be able to understand and be involved in the criminal proceedings they are a part of. The report looks particularly at defendants; however this research is just as likely to also apply to witnesses and victims with “hidden disabilities” participating in the criminal justice system too. Effective participation includes understanding what you are being charged with, what the evidence is and being able to give your own account along with effective instructions to your legal team. Notably, effective participation includes the ability to understand written communication, and adjustments may need to be made to enable this process to take place.

How are court reforms affecting participation?

Reforms in recent years have meant that fewer people need to appear in court for their offences. However, this means that many defendants may not interact with support channels which they may need to help them to navigate the system, or understand the implications of a particular course of action.

Almost all of the criminal justice professionals interviewed by the EHRC felt that the use of video hearings did not enable defendants to participate effectively, and even reduced the opportunities to identify impairments. Some lawyers also felt that it was much more difficult to take instructions via video-link, both before and during a hearing.

The findings of the report are severe and highlight repeated instances of a flawed and ill-designed criminal justice system. Language issues and over-use of complicated legal terms was a particular problem for many defendants who responded to the survey. They said that they did not understand everything they were charged with, or everything the judge said during their hearings.

Although there is a duty which requires certain public bodies, including the Ministry of Justice (MoJ) and HM Courts and Tribunals Service (HMCTS), to actively consider how to take steps to eliminate discrimination across protected characteristics (including disability), the report saw no evidence that relevant public authorities are collecting sufficient information about characteristics of defendants.

This includes a lack of data about how impairments can affect the ability of a defendant to participate. To date, the impact of the reforms on those with “hidden disabilities” has not been evaluated, although there may be some movement by the MoJ and HMCTS on this in the future. The report states that it is essential to include such evaluation to ensure that new court processes are truly designed with disabled people in mind – this includes both the impact of future reform and of existing barriers.

The report also finds that the number of agencies involved in the criminal justice system can be confusing and that there are often no alternative formats for vast amounts of written information involved in criminal cases.

Crucially, unidentified impairments are a further barrier to effective participation. This is a complex issue, particularly if there is a guilty plea, when the court may never become aware of any conditions. The reasons for failures in identifying impairments include lack of awareness, no processes in place to flag identification (a particular issue with the single justice procedure where a defendant only attends court if they plead not guilty or ask for a hearing), and a lack of accountability as a result of professionals sharing responsibility. Notably, nearly all of those who go through the single justice procedure have no legal representation, which increases the risk that courts might not identify a need for adjustments or that defendants will not ask for them.

Screening people in custody for pre-existing conditions is slowly becoming more systematic with the creation of NHS Liaison and Diversion services in England. However, in Wales there is no funding for these services and in Scotland there is a heavy reliance upon the accused person to disclose any impairments, or on a police officer’s own judgment in carrying out their own statutory duty. It is clear that NHS-led screening would help to identify impairments early and will ensure that unfairness can be addressed.

Further, the report finds that even where an impairment has been identified, information about the impairment may not be passed on and so adjustments are not always made. There are a variety of reasons for these communication failures ranging from lack of awareness, to shortage of time, along with inconsistent procedures. The EHRC recommends that a mechanism is in place for the NHS to share appropriate and case-specific information with HMCTS’s case management IT systems on identified needs and recommended adjustments.

Are existing systems adequate?

The inadequacy of existing systems is also covered by the report. There is a continuing duty on organisations involved in the criminal justice system to think in advance and on an ongoing basis about disabled people’s requirements. Whilst many in the judiciary were found to be willing to make adjustments, it was unclear from rules and guidance how much weight requests for adjustments should be given compared to other considerations, such as the need to deal with cases efficiently and quickly.

Again, lack of awareness of impairments and relevant adjustments appears to play a part in the way that decisions are made. Further regulation is also necessary as, whilst there is a registered scheme for intermediaries for witnesses in England and Wales, there is no such scheme for defendants, meaning the cost and quality can be highly variable. There is no intermediary scheme at all in Scotland despite the key role that intermediaries can play in effective participation.

Some adjustments featured in the report, such as removing wigs and gowns, may be familiar to practitioners. However, the report makes a number of other recommendations, such as agreed start, break and end times, the defendant being allowed to sit outside of the dock, and visual aids – all of which should be assessed on a case by case basis.

Finally, the EHRC finds that legal professionals do not consistently have the guidance or training that they need to be able to recognise impairments, their impact, or the relevant adjustments. Even though there are a number of resources available there is no compulsory or free disability training for barristers in England and Wales. In Scotland there is also no guarantee that professionals will undertake training in relation to accused people, despite witness vulnerability training being compulsory for prosecutors.

There is a further marked difference in training provisions in relation to youth and adult courts. The EHRC recommends that this be addressed at student level and that relevant codes of conduct and standards, as well as continuing professional development requirements, be amended to specifically include disability awareness.

Clearly, the criminal justice system, and those who work within it, have much to do to ensure effective participation for all. This report sets out some clear guidance and so, with investment of time and funds, it is within our grasp to make ours a truly world-class justice system.

Further reading

The Equal Treatment Bench Book is available online here.

Resources from the Advocate’s Gateway can be accessed here.

Natasha Isaac is a barrister at 1 Crown Office Row. She tweets @natasharisaac

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