My Lords, the amendment will ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable effective participation in court proceedings and in preparing for their trial. The aim is that such defendants should be entitled by statute to the same support as vulnerable witnesses, and thus to an equally fair trial. A briefing paper, Fair Access to Justice?, for front-line staff in the criminal justice system and the NHS, explains how those who appear in court as a victim or witness are entitled to extra support or special measures to help them understand and cope with the process. At present, vulnerable defendants do not have the same entitlement and get that support only at the discretion of the court, despite the fact that high numbers are vulnerable. The amendment would restore a balance and ensure even-handedness in court proceedings for any vulnerable person, whether they are a victim or a defendant. The special measures are intended to reduce the stress of the court appearance for the vulnerable individual or witness so that he or she can give the best evidence. Hitherto, these measures applied only to vulnerable witnesses and specifically not to defendants.
Support is provided for witnesses by qualified intermediaries who are registered, accredited and trained to help vulnerable and other witnesses in court proceedings after the most stringent selection, quality assurance, regulation and monitoring procedures. The aim is to facilitate vulnerable witnesses with two-way communication in court between them and other participants so that their communication is as complete, accurate and coherent as possible. However, while the arrangements are available to witnesses, they are specifically not available for defendants except at the discretion of the court, and even then the intermediaries appointed to support them do not have to be either registered or regulated, and are paid different fees. It is possible to have an unregistered intermediary assisting a defendant while a witness in the same trial has a fully registered one who is paid more than his counterpart who represents the defendant. This is an entirely unfair and unjust arrangement that favours a witness over a defendant, irrespective of the guilt or innocence of the vulnerable parties.
The current reality is that a high number of defendants going through the courts need particular support to help them cope and understand what is going on. If they do not have this help, it can affect their ability to participate in court proceedings and compromise their right to a fair trial. There is some help for vulnerable defendants giving oral evidence only, but they are not helped during trial proceedings to participate effectively, instruct counsel or prepare for a trial.
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More than 60% of children who offend have communication difficulties, 5% of adults have learning difficulties and high numbers have mental health problems. Clearly their ability to communicate is significantly compromised, especially in the context of a courtroom. Many have difficulty expressing themselves, understanding certain words and in verbal comprehension. In fact, one study showed that more than one-fifth did not understand what was happening to them, what was going on, or even why they were in court at all or what they had done wrong. Generally those with a low IQ and learning difficulties are likely not to understand certain words during their arrest and trial, and may find it harder to remember things, and be more suggestible or answer questions with what they think the lawyer wants to hear.
The answer would seem to be that vulnerable witnesses and vulnerable defendants should be treated even-handedly. Both should have properly registered intermediaries to help prepare them according to their need. Whoever is to be responsible for making appropriate arrangements should be clarified or decided, specifying the particular roles of those involved in the court proceedings. Special measures and adjustments according to personal need and to give guidance to the judiciary and staff should be part of the new liaison and diversion services.
Finally, the use of these measures and other reasonable adjustments should be monitored, reviewed and reported for the national liaison and diversion development network and an integral part of the forthcoming policy. Indeed, there should be one register of intermediaries
for all vulnerable people in the criminal justice system, subject to all the same standards. Procedures for all liaison and diversion services in the criminal justice system should provide the courts with all relevant information regarding impairment and support needs, including when an appropriate adult has been called to a vulnerable adult or 17-year old at a police station.
This seems an obvious anomaly; it risks leading to serious injustice, which is quite unacceptable. The model exists for help for witnesses thus disabled, so the solution would appear to be simply to apply it to defendants with similar disabilities for justice to be done. Discrimination is hard enough at the best of times when you are disabled. At the worst of times, for the courts to be found to be inadvertently discriminating against a defendant because of his or her disability—and who is innocent until proved guilty—through a failure to understand the nature of the disability, is clearly unacceptable. Mercifully, it would appear relatively easy to put right. I urge the Minister, at this late stage in the Bill, to ensure that the necessary changes are made to the current situation so that justice can indeed be done and be seen to be done. I beg to move.