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CHAPTER SEVEN: CRIMINAL JUSTICE

Background

7.1. The challenges for people with CSN within the criminal justice system is an area which has only recently received attention in the literature. This applies to people with communication support needs both as witnesses/victims and as offenders.

7. 2. There is good evidence that a higher proportion of people in juvenile offenders' institutions and prisons have communication support needs than in the general population, although the proportion varies from study to study. Bryan reported that over 40% of a group of young offenders had scores significantly below average for their naming ability and 23% below average for their comprehension (Bryan 2004). In a recent annual review of speech and language therapy provision in a young offenders institution, 18% of young offenders were identified as having communication difficulties (Robson 2006). This can be compared with the 7-8 % which would be likely to be identified in the general population (Tomblin et al. 1997). Similar discrepancies have been observed for people who stammer in the prison population. The clear message is that many offenders have histories of poor speech, language and literacy skills and this is likely to be manifested in any prison population. The difficulties that these individuals experience are likely to impact on their earlier school performance and on their ability to access employment and some rehabilitation services.

7.3 The reverse has also been demonstrated. People with disabilities are also much more likely to be the victims of crime than those without disabilities (Petersilia 2001). There are no directly comparable figures for people with communication support needs, but given the considerable overlap between developmental difficulties and communication difficulties the same is likely to be true. It may be that the difficulties that individuals may experience can increase the risk of crime, and of course their difficulties are likely to affect their ability to report a crime. The suggestion is that rates of crime are likely to be of the order of 3 or 4 times higher in the population with intellectual disabilities. The details are provided in Table 7.1 below.

Table 7.1 Victimisation risk by intellectual disability (in percentages) cited in Petersilia 2001

(Data From Wilson and Brewer 1992)

Barriers

7.4. People with communication support needs are likely to have difficulty interacting with those involved in the criminal justice system. The verbal nature of the proceedings and the highly formulaic procedures involved are challenging for the public as a whole to negotiate, but for those who have difficulty in understanding what is being said to them or expressing themselves these problems are exacerbated. This group may also have their credibility as a reliable witness questioned due to common misconceptions regarding individuals with communication difficulty. For example, a man with cerebral palsy's report of abuse was not followed up, because in the eyes of the police he was not deemed a credible witness due to his reliance on AAC (Togher, Balandin, Young, et al. 2006). Even with the growing acceptance of sign language, it would appear that this group may still be judged intellectually incompetent or incapable of communicating reliable evidence.

7.5. Similar to other groups of people with disabilities, such as those with learning disability, individuals who use AAC are also vulnerable to crime and abuse (Lever, Lightholder, Bryen et al. 2003). One of the common barriers to reporting crime in this group is that AAC technology does not enable them to provide full and coherent evidence. For example often AAC technology does not have the vocabulary to adequately describe experiences of sexual abuse (Lever 2003).

7.6. In a recent review of the practice in the Children's Hearings System in Scotland a series of recommendations were made for helping young children to understand the process (Scottish Executive 2006). A number of children between 5 and 18 years of age were interviewed, none of whom were explicitly identified as having communication support needs. However, the recommendations in terms of improving the participation of those concerned were similar to those identified for individuals with specific support needs. The emphasis was on participation within the process, which is a hallmark of the children's panel approach, with greater emphasis placed on the ability of the child to understand what is being said and express their own views. And this can be as relevant for the paperwork around the process as it is in the discussions themselves, as described in the following quotation:

" The first thing I knew of the date of my hearing was when a recorded envelope came and on the back was a stamp 'Report to the Children's Panel'. It made me feel ashamed and I couldn't understand the language on the letter they sent me."
Milne 1992: 14 cited in SE 2006 p.61

7.7. One of the key problems identified in the literature is the tendency for young offenders to have poor oral language competence (Snow and Powell 2004). This is likely to have an impact on their ability to make sense of any involvement with the criminal justice system.

7.8. One aspect of this involvement is the ability of people with poor communication skills and moderate learning disabilities to provide adequate testimony during the legal process (Gudjonsson 1993). In particular, concern has been expressed that courts may now be able to take evidence, especially by way of false confession, from certain types of defendants (those with mental health problems or learning disabilities tible). Although the courts are able to pay due regard to this there remains a risk that such vulnerable adults may be more at risk of self incrimination.

7.9. The Newcastle ( UK) report described above gives a number of examples of people finding it difficult to get their needs met in the criminal justice system (Knight, Sked and Garrill 2003), for example:

" I was originally told that I would not have to give evidence, but then I was called to do so at very short notice. The court interpreter was off sick and no-one had thought to find out what I needed to be able to communicate. When the police realised that I needed help they asked me if I knew any court experienced interpreters! In the end I got a friend to help me. As a consequence, I felt that my case was not presented well and I lost the case."
Knight, Sked and Garrill 2003 p.18

7.10. The same report also cites the specific example of people with a laryngectomy.

"Laryngectomees (and other neck breathers) cannot be effectively breathalysed, for that reason they may need to be arrested and taken to a police station for samples of body fluid to be tested. One man was detained for some considerable time, as the police were unwilling to allow his wife to communicate for him. Because of the stress his alternative speech had deserted him".
Knight, Sked and Garrill 2003

7.11. Recent guidance related to the Vulnerable Witnesses (Scotland) Act 2004 has specifically identified the requirements of people with special needs. Although the target group is obviously wide it includes people with significant social or learning disability or physical disability or impairment which could affect the giving of evidence (Scottish Executive 2005). This document recognises that the service may have difficulty recognising the needs in the first place and specifically warns against over or under estimating people's abilities.

Attitudes

7.12. No published evidence was identified related to the attitudes of professionals in the criminal justice system to involving people with CSN.

Transitions

7.13. There is no published evidence specifically related to the transition between different aspects of the criminal justice service although by definition the process is marked by a series of steps through which the individual must pass.

Potential improvements

7.14. Guidance has been issued regarding the management of people with communication support needs in the criminal justice system. The main messages tend to focus on sensitivity to the needs of those involved but such general recommendations are supplemented with specific techniques which have been shown to be useful with specific groups. For example, the Nova Scotia Public Prosecution Service (Nova Scotia Public Prosecution Service 2002) updated a document related to practice concerning both investigation and prosecution of cases involving people with special communication needs. This includes assessing the victim or witness' ability to communicate their needs and their ability to understand oaths etc. and allows for the provision of specialised equipment or interpretation services. The witness intermediaries scheme in England has specifically focussed on the support needs of people with communication disability ( HMSO 2006a, 2006b) In Scotland, the Vulnerable Witness (Scotland) Act (2004) has made recommendations for appropriate procedures for managing children and groups of people with disabilities who are called upon to be witnesses in court. Although these recommendations are not specifically associated with communication support needs they have the potential to have a direct effect on their involvement in the judicial process. There is a suggestion that it would be helpful to have meetings prior to the discussion of a given case to ascertain the level of the individual's ability to understand and engage in the legal process (Scottish Executive 2005). The same document provides a specific set of recommendations as to the identification of vulnerable witnesses and suggests a series of strategies for facilitating the giving of evidence in open court (ie. using TV, symbol systems, Picture Exchange System ( PECS) etc.). Similarly, seating and lighting may be key issues for people using alternative and augmentative systems (Balandin 2000). Preliminary findings from a study using "Talking Mats" with young offenders has also demonstrated promise (Robson 2005). This is a visual technique which utilises picture symbols to aid comprehension and responsiveness for individuals with varying degrees of CSN. The talking mat is a textured mat used to display and organise the picture symbols. The picture symbols can be attached to the map with velcro, this allows the individual with CSN to organise their thoughts. Talking mats can be used in a variety of contexts to discuss a variety of topics such as likes/dislikes, relationships and emotions, providing that the relevant pictorial system containing appropriate vocabulary is used.

7.15. Specific skills are needed when interviewing people with CSN (Snow and Powell 2004, Agnew, Powell and Snow, 2006). For example, Snow and Powell (2004) recommend that professionals dealing with young offenders with oral language difficulties should be aware of the following:

• The communication needs of young offenders may not be easily identifiable and may manifest as boredom or resistance to participation in the interview.
• Young people with oral language difficulties may be able to communicate effectively during informal communicative exchanges, however they will have difficulties in formulating coherent responses to formal questions that contain non literal language.
• Interviewers will need to modify their language to meet the needs of the interviewee.
• Interviewers should verify the interviewee's level of comprehension by asking the same question in different ways to ensure consistency in responses.
• Interviewers need to allocate more time for the individual to answer questions and they should indicate clearly which aspects of responses are incoherent or lacking in detail.
• Legal practitioners would benefit from specialised training in the identification of language difficulties in young offenders and the use of effective strategies to overcome these difficulties during formal communicative exchanges.

7.16. The Appropriate Adult Scheme in England and Wales (not yet statutory in Scotland) ensures that an 'appropriate adult' can provide assistance to someone who is deemed 'mentally disordered' in legal affairs, such as police interviews and court trials, to help them fully understand the process. Individuals with CSN such as language disorder would benefit from assistance of this kind from professionals such as speech and language therapists ( AAC 2000).

7.17. There has been interest in recent years in offering speech and language therapy services to support the communication needs of people who are in young offenders institutions or prison. A well established example of this is the speech and language therapy service to Polmont Young Offenders Institution in Scotland. To date the main emphasis has been on establishing the need, and the nature of that need, in the population concerned. Clearly this is only the starting point for the provision of such services and there are plans for establishing close liaison with the mental health team within the institution and the provision of direct services to the individuals within the institution. Initial results suggest that the young people find the service helpful and accessible, but there are many obstacles to the delivery of the services, and there has yet to be a formal evaluation of the intervention provided. Other specific multi-media training packages have been developed to help those working with the criminal justice system to improve their dealings with people with CSN (Togher, Balandin, Young et al. 2006).

7.18. However, it is one thing to provide guidelines or even a service, and another to implement them and detect changes in the participants. In a study introducing a Communication Rehabilitation Regimen for youths in a residential treatment centre (Traynelis-Yurek and Giacobbe 1998), those in receipt of the package of intervention for more than fourteen months showed positive gains for their communication. Interestingly the younger members of this group of 130 young people made the greatest gains in terms of their communication skills.

CRIMINAL JUSTICE - KEY POINTS

Problems identified

• A high proportion of individuals in young offenders' institutions have communication difficulties.

• Individuals with disabilities are more likely to be victims of crime.

• The court tradition of oral argument automatically places individuals with CSN at a disadvantage.

• The formality and complexity of language used in interview and court contexts may place excessive demands on people with CSN. As a result, they may be unable to provide necessary information and/or be misrepresented as uncooperative.

Potential for improvement

• Individuals with CSN can provide reliable testimonies if suitable adaptations can be made. Professionals need specialised training in recognising and meeting the needs of people with CSN in order to communicate appropriately and to avoid underestimating or overestimating their capabilities.

• Some people with CSN may benefit from the 'Appropriate Adult Scheme', where a professional such as a speech and language therapist facilitates communication at each stage of the legal process.

• Preliminary reports indicate potential benefits of speech and language therapy provision for young offenders

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