Sinclairslaw are experts in special educational needs (SEN) and disability law. Over the past couple of years, working closely with our criminal law department, we have become concerned over the treatment of individuals with learning difficulties or disabilities who have sadly fallen on the wrong side of the criminal justice system. The marginalisation of individuals with special educational needs and disabilities is endemic in all areas of society; although in some areas it has begun to be address but it appears to be significantly in need of reform in relation to the criminal justice system. There is common maxim that a society should not be judged on its successes and monuments it leaves behind but how it treats its most vulnerable members. With that in mind, Sinclairslaw, over the course of a number of articles and case studies over the next couple of weeks, will be assessing and evaluating how those with special educational needs and disabilities are treated at all stages during the criminal justice process. This article explores the major issues of the criminal justice system and how it deals with those who have a disability. Over the past 12 years of working as a criminal defence barrister, I have become increasingly concerned over the misunderstanding and treatment of those with special educational needs and disabilities throughout the criminal justice system. I have come to the conclusion that the system needs major reformation to prevent grave injustice. I have always been concerned with how society treats those with disabilities; I saw this first hand while growing up as my aunt has Down’s syndrome, and I saw how people outside of my family made judgements of my aunt without really understanding her or considering her as an individual with additional needs. My aunt is a fantastic person and an inspiration to our family, particularly my father, and her example lead to him pursuing a career in looking after those with learning difficulties. Both my parents qualified as psychiatric nurses and have run private care homes, taking people out of terrible conditions run by the local authority and provide them with a proper home environment. I grew up in the same home as the residents who became like my family and led me to believe that I had to do something and help those with disabilities who are vulnerable. This is one of the reasons I pursued a career as a criminal barrister, where I could represent the weak against the strong and the individual against the state. It has always been my view that the degree of power in these situations is weighted far too greatly in favour of authorities. Particularly in relation to disabilities, authorities, due to a lack of training and experience, remain ignorant of the difficulties of disabilities and how they impact on the ability of an individual who, for various reasons, may enter into the criminal justice system rightly or wrongly. Sinclairslaw is a leading practice in the area of education law with a particular specialisation in helping pupils with special educational needs to get the right support and not be discriminated against. There is a significant crossover between this area and criminal law. I often see those who have not received the right support fall off the criminal justice system. There are many individuals who find themselves wrongly accused of crimes they did not commit but have been unable to appropriately communicate that to the police and later in court. There are a large proportion of people within our society that suffer with a learning difficulty. Recent statistics have shown that this can be as high as 32%, meaning two or three people out of every ten within the United Kingdom's population may have some form of special educational need. One of the biggest problems in dealing with those with disabilities in a fair and proper manner is understanding the impact of the condition and how an individual will present themselves in everyday life where the criminal justice system is involved. For example, there are various public order offences where one can be accused of causing harassment, alarm or distress. Typically one commits this crime with raised voices and body gestures which could be interpreted by another as being a threat of violence. However, it is quite different for someone without a learning difficulty to threaten intentionally an alleged victim, as opposed to someone with a disability who is simply venting frustration due to their difficulties, such as a mental health issue. There have been numerous examples where the latter scenario has caused those persons to be arrested, interviewed and indeed charged with criminal offences. This throws up a number of problems. In general, the police are ill-equipped to deal with such vulnerable individuals. For instance, a potential suspect on the autistic spectrum may struggle due to their communication and social interaction difficulties. It is surprising how little training the police have in dealing with such an individual in tense situations, such as when someone is arrested, which can exacerbate and aggravate the situation. It can on many occasions cause the suspect to be accused of further crimes, for example, assaulting a PC or further acts of public order offences. To proceed, the situation doesn’t stop there. If it’s not properly recognised by the police that this person has a disability affecting the interaction and understanding of the situation they are in, then they can be subjected to an interview process during which an appropriate adult is not assigned to them and, subsequently, their rights and liberties are affected once again. What will often occur is that the suspect will not appreciate the full extent of legal advice, especially if the lawyer involved does not have experience in disabilities and special educational needs, meaning the whole process is flawed from start to finish. Often the police will charge under such situations because the suspect has made voluntary admissions without really understanding what the law is and the consequence of such an admission. The case will then go to court and one is represented by a duty solicitor who with a significant caseload will not have the time or resources to redress the balance and, therefore, the person will enter a guilty plea and either lose their good character, if they have previously not had any convictions or cautions, or, alternatively, add yet another conviction to an ever-increasing criminal record. It is well, known that despite recent case law, once a criminal record is attained, trying to expunge it is virtually impossible. Therefore prevention is the best measure. I have found myself on numerous occasions having to adjourn cases at the first appearance in the Magistrates Court to make representations to the Crown Prosecution Service and argue whether or not it’s in the public interest to prosecute under such circumstances. One will find that under most situations if a carefully drafted letter which shows that the legal representative understands those with learning difficulties or a disability and that the alleged criminal behaviour was a misinterpretation as opposed to an actual intent to commit a crime, and then those convictions can go away. The major concern is that once a case comes before the court system there is no middle ground for a defendant. One is either guilty of an offence and has a criminal conviction and is sentenced accordingly. This can result in imprisonment or some form of community service, or, should the convicted individual be considered so unwell, a hospital order. Hospital orders are only imposed on those persons who have severe mental health issues who, generally speaking, cannot understand legal proceedings or give proper instructions. Hospital orders cannot be imposed at a magistrates’ court and are purely confined to the Crown Court. What this, therefore, means is that such orders will only be made for individuals convicted of more serious crimes and, therefore, those who are accused of less serious matters will find themselves at a potential disadvantage in this regard. So that was a general overview of what can happen. The question now is what can be done in the future? One has to recognise who has a disability – those with mental impairments are particularly vulnerable. I am in the process of campaigning on a national level for the authorities to recognise suspects who have disabilities. The main problem in situations where one is arrested is communication; adopting this approach may resolve situations without proceeding to a charge. Up to 40% of people with learning disabilities have hearing and/or visual problems that can affect communication or understanding. Up to 90% of people with learning disabilities have communication problems. Recognising someone with such a disability may be difficult at first. Some individuals will readily convey that information, others may feel slightly embarrassed. Enquiring about someone’s accommodation and who they live with is always a good place to start, as it may reveal if the person is living with parents or a carer, is in assisted living or is independent. Further basic questions could also reveal many things about a person’s situation. For example, asking about what a person does during the day can reveal if they work or are in education or are supported by the local authority. Generally speaking, if there are difficulties in the suspect answering those questions it could lead to the conclusion that special education needs are present. As with most things in life it is important to have clarity. When one is in the police station and once a vulnerable suspect has been identified, an appropriate adult should be appointed to help promote the interests of the person involved. In general terms, the appropriate adult is there to look after the rights and benefits of the suspect to facilitate communication and help in the general understanding of the interview, should any difficulties arise. It is also very important that suspects understand the caution, as this is an important legal principle that can undermine the entire criminal case against someone. A police officer, when interviewing, should always be made to establish rapport and speak clearly and compassionately. Adopting such an approach can still further the investigative process but also be fair to the suspect at the same time. The interviewer must be particularly observant and if, for example, it is seen that the interviewee is becoming anxious or agitated, suitable breaks must be given. Under the Police and Criminal Evidence Act 1984, this is one of the basic requirements to not cause the interviewee to suffer any form of oppression or suffering. During an interview one has to be sure that the disability is not affecting the credibility of the witness or accused. This is when it is vital for the legal representative to be fully aware of the disability and what the implications can be. It is imperative that the representative ascertains whether or not the person they are representing has a known disability. For example, if a witness says they can’t remember a fact, is this because they are lying or being inconsistent, or is this part of some pre-existing condition, for example a weakness in working memory? Admittedly, this cannot be confirmed at the time during a police station interview but it’s something that can be explored with the assistance of an expert psychological or psychiatric report. A further problem is that suspects will make admissions purely to try and facilitate an earlier exit from the police station. Again, this should never be done. The police are given strict requirements according to the Police and Criminal Evidence Act as to how long a suspect can remain at the police station. For example, the police have the right to detain someone for at least 24 hours without charge before they are released on bail. Under certain circumstances, that period can be extended if either an inspector has given the appropriate authorisation or, if it’s a longer period of time, a local magistrate. Once the interview has been conducted in a fair manner, dependent on the facts of the case, it is always preferable to make representations to the Crown Prosecution Service to try and see if some alternative to charge is viable or see if it is in the public interest to pursue a case. Many lawyers do not do this and try this far too late, when a decision has already been made. This may be because it is not covered by legal aid, which raises the question, why is it not? In the worst-case scenario, someone is charged and then it is down to the lawyer to assess all the evidence and to try and secure an acquittal. Where this is not possible, the appropriate expert reports should be commissioned so as to obtain the best possible sentence. Justice is about balance and, as said previously, the authorities have far too much in their favour and, therefore, adopting the above approach shifts more power to the client and is therefore in the interest of justice. Over the next couple of weeks, I will be looking into the issue more, I will be looking at how examples of individual police services and how they deal with such vulnerable individuals. I will also be providing case studies of where the police have got it wrong and look at why.