Isaac: Right to a fair trial at risk
Disability awareness should be a professional requirement, and a mandatory element of criminal lawyers’ CPD, the Equality and Human Rights Commission (EHRC) has recommended.
In its final report on whether the criminal justice system treats disabled people fairly, the watchdog said “legal professionals do not consistently have the guidance or training they need to be able to recognise impairments, their impact, or how adjustments can be made”.
The inquiry – which focused on the pre-trial phase – found that the criminal justice system as a whole was failing those with learning disabilities, autistic spectrum disorders and brain injuries, and needed reform in order to ensure a fair trial for all.
Accused people were not routinely provided with the adjustments they needed to participate in the justice process, it said, calling for a halt to the court modernisation programme until this issue was addressed.
The final report followed interim findings published in April on the greater use of video hearings during Covid-19, which said they were not suitable for “many people” with a cognitive impairment or mental health condition.
Specifically on lawyers, the final report recorded that, while prosecutors undertook compulsory training on witness vulnerability, there was no equivalent for defence solicitors in relation to the accused.
Such training as was available on vulnerability usually focused on victims and witnesses, while the Solicitors Regulation Authority told the EHRC that, in 2019, only a third of private practice solicitors had training on supporting vulnerable people.
The inquiry found that lawyers relied “strongly” on defendants themselves to disclose any impairment and/or say whether they face any barriers.
“Many will not do so. Some people don’t know they have an impairment, while others choose not to offer this information.”
The EHRC recommended: “To improve understanding of disability and the barriers to effective participation disabled defendants and accused people experience, steps should be taken by the relevant bodies to ensure:
- initial professional qualification training for law students includes disability awareness;
- all relevant codes of conduct and standards are amended to specifically include disability awareness as a professional requirement; and
- disability awareness is a mandatory element of continuing professional development for those working in criminal law.”
The watchdog found no evidence that HM Courts & Tribunals Service (HMCTS) and the Ministry of Justice were collecting sufficient information about the characteristics of defendants or accused people, despite the belief that many have a disability.
“The court reform programme for England and Wales specifically refers to designing a system around the people who use it, and accessibility is one of its three core principles.
“Yet, our evidence suggests that opportunities to design digital court systems to be more accessible in England and Wales have been missed. Data about the needs of defendants with cognitive impairments, mental health conditions and/or neurodiverse conditions was not gathered or taken into account when these policies and systems were put in place.”
This raised questions about the extent to which HMCTS and the Ministry of Justice had complied with the public sector equality duty.
The EHRC recommended that both had to establish “a clear evidence base on the impact of court reform for disabled defendants” and address existing barriers for disabled defendants “before any further measures are introduced or extended”.
EHRC chair David Isaac said: “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.
“Clearly the system needs a redesign. 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.”
Among the other recommendations were that NHS England should put mechanisms in place to enable appropriate sharing of case-specific information with HMCTS’s case management systems on identified needs and recommended adjustments.
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