The Open University
For a long time the NSPCC has highlighted the need for a justice system that is fit for children and last year, three months after they launched their Order in Court campaign, the Government announced a series of changes. One of these changes included the promise to double the number of registered intermediaries to help certain individuals testify in court. Their role is to assist victims and witnesses who are children or who have mental health issues, physical disabilities or learning difficulties. Registered intermediaries are professional communications specialists, accredited by the Ministry of Justice, who help those individuals understand what is being asked of them and communicate their replies.
This is an image from the NSPCC campaign highlighting the lack of registered intermediaries for children who give evidence in court
The court intermediary service was introduced under the Youth Justice and Criminal Evidence Act 1999, and it was aimed at assisting vulnerable witnesses for the prosecution and for the defence, but not the accused. Although the Coroners and Justice Act 2009 permits examination of a vulnerable defendant through an intermediary in England and Wales, according to the website ‘The Advocate’s Gateway’ this provision is not yet in force. Despite this the website reports an increase in the number of trials where judges allow an intermediary to assist defendants. A recent example is the murder trial involving two teenage girls reported in the news in early April this year, with one article stating that an intermediary was present throughout the trial to help them understand what was being said in the courtroom.
The Advocate’s Gateway is hosted by the Advocacy Training Council and provides guidance based on evidence that relates to vulnerable witnesses and defendants
Contribution from Speech and Language Therapists
The absence of a statutory provision regarding intermediaries for vulnerable defendants is worrying given the growing evidence of speech and language communication difficulties among children who offend. For example, in 2007 Karen Bryan and colleagues randomly selected 58 young offenders aged 15-18 years, and found that 66-90% had below average language skills and 62% failed to achieve the level of literacy normally expected by 11 years of age. In a subsequent study they reported that 65% of 72 young offenders had language difficulties, with 20% assessed as ‘severely delayed’. These difficulties cover all aspects of communication including expressing themselves through speaking and writing, understanding the spoken and written word, as well as using and understanding non-verbal communication. Another study showed that many young offenders could not define or describe the type of words they will hear in the courtroom, such as ‘penalty’, ‘verify’ and ‘caution’.
At present we do not have evidence that explores the relationship between offending and communication difficulties over a period of time, but it is likely that both language difficulties and youth offending are the outcomes of a set of environmental and biological adversities. There is a high prevalence of other difficulties, including learning disabilities and histories of maltreatment among this group. Furthermore, young offenders coming from low (poor) socio-economic backgrounds are overrepresented, and there is evidence suggesting a link between poor communication skills and social disadvantage, with between 40% and 56% of children from disadvantaged backgrounds showing language delay when starting school.
Another important aspect to consider is that young offenders with speech, language and communication difficulties will have struggled throughout their school years, and their inability to respond to verbal demands in the classroom may have been misinterpreted by teachers as rudeness or disinterest, which in turn may have led to lowered expectations and an underestimation of their academic potential. When interviewed, young offenders have reported feeling frustrated at school when they did not understand some of the words used by teachers or textbooks. It is not a surprising therefore that Karen Bryan and colleagues found a large majority had stopped attending school before reaching 16 years of age. The Royal College of Speech and Language Therapists has sought to raise awareness of the important role speech and language therapists can play, both in identifying the precise needs of young offenders and offering therapy interventions. As these interventions improve the verbal communication skills of the young offenders, they are then able to access the rehabilitation and treatment programmes that help prevent and reduce re-offending.
Legislation is not yet in force to ensure that vulnerable defendants have the same access to court intermediaries as vulnerable victims and witnesses. Therefore, given the language that is routinely used in the courtroom, some young defendants may fail to understand or follow the court proceedings. Recently, training opportunities have been developed for anyone communicating with young offenders. The Royal College of Speech and Language Therapists has developed a training programme called The Box, which is designed to help those working within the criminal justice system, including court staff and Crown Prosecution Service staff. Not only will users learn how to spot people with communication needs, they will also find out how to work more effectively with them. The programme includes an e-learning module, a two-day course and a screening tool. The Advocate’s Gateway has recently released new toolkits that focus on the difficulties that can arise when questioning a vulnerable witness or defendant, including how to question someone with a ‘hidden’ disability such as language impairment. This comprises advice on using concrete words, about keeping questions simple in structure and the problems of using negative and passive language in questions. Hopefully, those working within the criminal justice system will avail themselves of these training opportunities.