Criminal justice system failing disabled people

Equality watchdog says criminal justice system is failing and leaving disabled citizens “bewildered”.

Having recently produced interim findings in response to the coronavirus pandemic, the Equality and Human Rights Commission (EHRC) has today further warned the criminal justice system is failing those with learning disabilities, autistic spectrum disorders and brain injuries and needs reform in order to ensure a fair trial for all.

As it launches the full findings of its inquiry into whether the criminal justice system treats disabled people fairly, the EHRC says the system is not systematically recognising the needs of disabled people, meaning defendants and accused people risk not being able to participate properly in the legal process.

It also explains that there is an over-representation of people with learning disabilities and mental health issues within the system that the government has failed to document, that those accused aren’t routinely provided with adjustments they need to participate in the justice process, and that too many legal professionals do not have adequate training to appropriately deal with impairments.

Highlighting that increased digitalisation of the system threatens disabled people’s access to justice – as it risks them being even less able to understand what is happening, and communicate, than when they are participating in person – the EHRC stresses the urgency of reform of the system to meet disabled people’s needs, in turn improving it for all court users.

David Isaac, Chair of the Equality and Human Rights Commission, said:

A non-discriminatory criminal justice system, that everyone can participate in, underpins our society. It stands for democracy, equality and the rule of law. It should give us all the chance of a fair trial, no matter who we are. But 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.

Alongside its findings, the report makes five accompanying recommendations to the UK and Scottish Governments and relevant agencies:

• ensure departments and executive agencies address gaps in the collection, monitoring and analysis of disability data, and ensure there is clear regulatory oversight to monitor their effective participation
  • in England, the MoJ and HMCTS should 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
• develop early and effective screening for all defendants and accused people and give consideration to how screening might work for those involved in criminal proceedings where the route does not involve the police and/or custody
  • in England, NHS England should consider introducing universal screening by NHS L&D services, building on existing best practice and learning from current politics
• ensure timely access and sharing of information
  • in England, NHS England should ensure they have mechanisms in place to enable appropriate sharing of case-specific information with HMCTS’s case management IT systems on identified needs and recommended adjustments
• support the duty to make reasonable adjustments and respect fair trial rights
  • in England, the UK Government should implement the recommendations for legislative reform in Chapter 2 of the Law Commission report on Unfitness to Plead to give defendants a statutory entitlement to intermediaries and other special measures.
• 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

Notes

The full findings from the report are as follows:

• The justice system is not designed around the needs and abilities of disabled people, and reforms in England and Wales risk further reducing participation
• Impairments that may require adjustments are not always identified – this is a barrier to effective participation
• Adjustments are not always made for disabled people because information about their impairments is not passed on
• The existing framework to provide adjustments to secure effective participation for disabled defendants and accused people is inadequate
• 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 EHRC launched its Does the criminal justice system treat disabled people fairly? inquiry in March 2019. Its purpose was to respond to significant concerns from charities, lawyers and the families that people with mental health conditions, cognitive impairments and neuro-diverse conditions are experiencing discrimination and being put at risk of miscarriages of justice due to a lack of support in the criminal justice system.