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The UK’s equality watchdog, the Equality and Human Rights Commission (EHRC), recently released findings from its inquiry into the criminal justice system (CJS) and disabled people’s experience of it.
The results from the “Inclusive Justice” report highlighted fundamental failures within the system. It also shone a light on the severe lack of provisions made for disabled people, which for a long time has prevented inclusivity.
Now, the watchdog has made a series of recommendations. This includes introducing disability awareness training for lawyers, amendments to codes of conduct and a simplification of language used within the CJS.
In its inquiry, the watchdog focused on the pre-trial phase, and conducted its research under section 16 of the Equality Act 2006. It gathered the experiences of adult defendants who live with cognitive impairment, a mental health condition and/or a neuro-diverse condition.
The inquiry outlined that the government has little data on this group in relation to the CJS. However, evidence suggests that around 40% of those detained in police custody suffer from a mental health condition. On top of this, between 5% and 10% of those in prison have a learning disability and almost half of those in male prisons have some kind of traumatic brain injury.
Despite the prevalence of this group, the report revealed that the CJS was not equipped to serve the abilities and needs of disabled people. One particular issue the report brought forward was the “overuse” of “complicated legal language and terms”.
Commenting on the need for courts to simplify language, one crown court judge said: “It seems to me that language is the real key, that the way we speak in court has to change. We don’t have to be casual, we don’t have to use slang, we don’t have to speak in the same way we might speak around the dinner table, or to our friends if we’re out for an evening. But we do have to speak in a way which is not so far removed from the way that ordinary people speak and that includes people with impairment”.
The report also criticised public authorities for not accurately recording the number of disabled people moving through the system. It stated that while the number of individuals entering the CJS with disabilities was “believed to be high,” relevant public authorities were not gathering “sufficient information” about the characteristics of defendants. Accompanying this lack of evidence, the report also discovered that the same authorities were not collecting data on how individuals’ impairments impacted their ability to participate. Moreover, it stated that this placed barriers in front of understanding how to improve the system and make it more accessible.
In addition to these barriers, the report outlined that when digital courts were designed, sufficient provisions for defendants with disabilities were not made. In accordance with this, the EHRC raised its concerns that this bars vulnerable defendants from accessing justice. Ultimately, the report questioned whether HMCTS, the MoJ and others had fulfilled their obligations under the Public Sector Equality Duty (PSED).
Another area that was shown to require vast improvements is disability training for those working in the CJS. The EHRC said that in evidence submitted to the inquiry, the Solicitors Regulation Authority (SRA) revealed that in 2019, only one-third of private practice solicitors had received training on how to support vulnerable people.
Meanwhile, the report noted that while there were a number of different resources available to solicitors, such as the Equal Treatment Bench Book and Advocacy and the Vulnerable Training, they “weren’t being used as much as they could”. In addition to this, those who were interviewed, admitted that in England and Wales, there is no compulsory or free disability training for solicitors or barristers. Furthermore, where there is funding available, it is extremely limited.
Reflecting on the training that is available, one crown court judge said: “There’s a book called the Equal Treatment Bench Book that has surfaced, I would probably say over the last couple of years.[It] has some incredibly useful material in there, which covers a whole range of subjects, including, inevitably, defendants with impairments. It’s a book that I think should be used far
more than it is”.
The EHRC inquiry also revealed that the majority of training available on “vulnerability” rarely covers defendants. Further to this, the magistrates interviewed for the report disclosed that while diversity training is offered, it is not compulsory, and the mandatory training offered around disability focuses primarily on physical impairments.
While the report praised the creation of NHS Liaison and Diversion (L&D) services, it also suggested a number of urgent reforms. This included ensuring that the CJS recognised and understood the “barriers” facing defendants. It said that this could be done through effectively collecting, monitoring and analysing disability data and then using this to improve the system. On top of this, it suggested introducing regulatory oversight to ensure the “effective participation” of defendants.
In relation to training, the report made recommendations that law students should undertake professional qualification training which would include a section on disability awareness. To further improve inclusivity, it is also suggested that for those going into criminal law, training in disability awareness should be mandatory. Meanwhile, the EHRC said that all codes of conduct should be revisited, and disability awareness should be introduced as a professional requirement.
In addition to these recommendations, the report emphasised the need for the UK and Scottish governments to introduce a health-lead screening process for defendants. It argued that this will help to ensure needs are effectively met.
The watchdog also insisted that the MoJ pauses any further reforms of the court service, until a “clear evidence base” was established in relation to how disabled people would be impacted.
Ultimately, David Isaac, Chair of the EHRC, concluded that the system required a complete “redesign”: “Disabled people often face barriers to understanding their situation and making themselves properly understood to others. This can result in them feeling bewildered by the system and treated unfairly, which puts their right to a fair trial at risk”.
Stressing the need for reform, he added: “The UK and Scottish Governments need to make it a priority to understand the needs of disabled people in the system, giving serious consideration to our findings and recommendations, and commit to making our criminal justice systems fair for all”.
Responding to the report, a spokesperson for HMCTS said: “We work closely with disability groups to ensure we have reduced the barriers that disabled people may face throughout [the] justice system. This includes identifying people who have mental health, learning disabilities, substance misuse or other vulnerabilities at the earliest opportunity, and providing intermediaries to help with remote hearings. We welcome the EHRC’s report and look forward to engaging with them to help improve our provisions further”.
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