Representing the vulnerable in criminal proceedings

21 November 2017

Finding yourself accused of a serious crime is a frightening and daunting experience.  Even those afforded the best of representation would be daunted by the unfamiliar court process; despite the best efforts of all who work within the criminal justice system, language and phrases used in court can inadvertently exclude those who are unfamiliar with proceedings.  For those who suffer from varying mental and psychological difficulties, the court process can be further confusing and opaque.  At worst, proceedings can be perceived as occurring around the individual rather than engaging them, including them and allowing them to be heard.  For those of us who regularly represent individuals suffering from a myriad of psychological and/or psychiatric difficulties, it can be difficult ever to feel that enough has been done to make proceedings inclusive.

Last year, the Law Commission published its paper regarding Unfitness to Plead. It was noted that the current procedure is antiquated, based upon elderly case law and upon a test that is not uniformly followed or understood.  The procedure is cumbersome and sometimes wasteful, because the legislation requires that, in order to establish fitness to plead, the court has to have before it evidence from two psychiatrists.  As the experts learn more about mental illness and psychological difficulties, it is clear that many of those who come before the courts do not suffer a mental illness per se, but rather their psychological make-up is such that they would experience significant disadvantage within the trial process, either by virtue of a lack of understanding of language used, or an inability to communicate affectively. Thus, many who may be “fit to plead” will still require substantial assistance if they are to engage in and be heard during proceedings.

The Law Commission paper recognised the value in the use of the Toolkits provided within the advocates gateway; these are useful tools to assist advocates in preparing questions for witnesses (including defendants) during court proceedings.  However, the Law Commission also recognised that the use of intermediaries was of significant value in ensuring that vulnerable defendants understood and engaged in the trial process. In most cases, all experts who are asked to consider fitness to plead are now aware that there is the possibility for the defendant to be afforded the provision of an intermediary for at least part of the trial process.  The intermediary’s role is to ensure that matters are communicated effectively during the trial process.

Legal representatives who regularly represent those with psychiatric and psychological difficulties will be aware that, often, the use of language is not the only barrier.  Vulnerable defendants can struggle to understand simple concepts, they are open to suggestion and they might lack the insight to be able to identify when they do not understand what is being asked of or explained to them.  Experience shows that those who are vulnerable often unwittingly hide the fact that they are unable to follow proceedings or understand questions.

Unfortunately, recent updates to the Criminal Procedure Rules, coupled with the case law, have resulted in an assumption against the use of intermediaries for defendants.  That same assumption does not apply to vulnerable witnesses.  The CPR and the Court of Appeal decision in R v Rashid  [2017] EWCA (Crim) 2 have resulted in an assumption against the use of an intermediary for the defendant for the entirety of the trial.  Rather, the assumption is that the trial process can usually be adapted to accommodate defendant’s needs.  Therefore, it will be rare for an intermediary to be required for the defendant’s evidence; for an intermediary to assist the defendant during the entirety of the trial will be rare still.

It is perhaps a shame that such an important consideration was predicated upon the circumstances of the defendant in Rashid.  He plainly did not possess significant vulnerabilities; it would appear that adaptation of the trial process could have accommodated him sufficiently.

The inevitable consequence of the current guidance is that courts will rely heavily upon the advocate and other defence representatives.  Where a vulnerable individual is to be assessed as to fitness to plead, it would be prudent to ensure that the instructed psychiatrist is aware of the current guidance regarding the use of an intermediary.  Many appear to base their assessment of fitness upon an assumption that the use of an intermediary will be permitted by the court almost as a matter of routine.  This is certainly not the case.  In the event that the defendant is able to engage in the trial process only with the assistance of an intermediary, arguably the absence of an intermediary might render the defendant unfit.  At the very least, it would result in the perception of unfairness.

Clare Ashcroft is a barrister at Garden Court North Chambers.

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