ACCESS TO JUSTICE
The future of inclusion & special measures in the courts CONFERENCE GUIDE - FRIDAY 3 NOVEMBER, 2023
Contents
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Welcome message Agenda Speakers About JUSTICE About Communicourt Reading and resources The Access Brief
Any questions? Throughout the conference, we will be using Slido to collect questions for our speakers, to be asked during the panel discussion. Please add your questions using the QR code, Slido code: 3535095 or via this link. In person attendees are also welcome to put their questions directly to the panel. Questions for non-panel participants will be shared with speakers and any responses shared following the event. Questions can be shared anonymously, if preferred.
Welcome message A warm welcome to the Access to Justice Conference 2023. We’re delighted to welcome attendees from across the justice system and beyond, from social workers and liaison and diversion practitioners, to solicitors, barristers, academics - and the law students who will shape our future legal landscape.
Andi Brierley will draw on both his lived experience and professional practice to consider how we address inequality in the justice system. Chris Packham’s videorecorded foreword will introduce some of the barriers to participation autistic people may face in the courtroom.
Striving for ever-better access to justice for people with communication differences and difficulties is what drives Communicourt as an organisation. However, intermediaries are only one piece of the puzzle of achieving equal participation for all.
Providing a barrister’s view, Kama Melly KC will explore person-centred approaches to special measures, considering adaptations which go beyond the provisions set out in the Youth Justice & Criminal Evidence Act (1999). To explore current practice and future developments, HHJ Neil Clark will offer insight into thinking on special measures within the judiciary.
We believe that multi-disciplinary communication and collaboration play an essential role in making justice ever-more accessible to all court users, from intimidated witnesses in criminal proceedings, to respondents with a learning disability in care proceedings. So, we’re very pleased to be having this important conversation with attendees from such varied backgrounds. We hope this event provides an opportunity for discussion and practice-sharing across the diverse professions in attendance.
We hope this event will open dialogues about how we can work together towards a more inclusive justice system for all
With a focus on special measures (adaptations which can be made in court to facilitate the evidence of vulnerable or intimidated witnesses) we hope to take a closer look at current practice in the courts and identify areas for future development which will foster a more inclusive justice system. While Edmore Masendeke explores the barriers to communication support faced by defendants with mental health conditions and learning disabilities, Dr Katie Maras will consider the effectiveness of special measures for autistic witnesses when giving evidence.
William Scrimshire MANAGING DIRECTOR, COMMUNICOURT
www.communicourt.co.uk
Agenda 08:30 - 09:15
Arrival and networking breakfast
09:15 - 09:30
Welcome from Communicourt and JUSTICE Pre-recorded foreword from Chris Packham
09:30 - 10:35
Speaker session 1 Opening address from HHJ Neil Clark Kama Melly KC Person-centred approaches to special measures Andi Brierley Responding to inequalities within legal processes
10:35 - 11:00
Break & refreshments
11:00 - 12:55
Speaker session 2 & panel discussion Dr Katie Maras Autism and access to justice Edmore Masendeke The experiences of defendants with mental health conditions and learning disabilities in the criminal justice system
Panel discussion Chaired by Fiona Rutherford of JUSTICE
12:55 - 13:00
Thank you & close from Communicourt
13:00 - 14:00
Lunch & networking
Speakers His Honour Judge Neil Clark While at the Bar, HHJ Clark prosecuted and defended cases involving vulnerable people, including serious sexual offences by children, and the trafficking and sexual abuse of women from Eastern Europe. He has an interest in cases involving those suffering from mental illness and, as counsel, advised for and appeared in court on behalf of both the prosecution and defence, in cases involving patients and those suffering from mental illnesses, who were charged with serious offences. HHJ Clark was one of the national pilot judges for S28 early cross examination of vulnerable witnesses, and a member of the committee overseeing the national roll out of S28. He was involved in developing the compulsory training for advocates in relation to the examination of vulnerable witnesses. He has participated in a number of initiatives relating to both special measures and Independent Sexual Violence Advisors (ISVAs) at Leeds Crown Court.
Dr Katie Maras, University of Bath Katie Maras is Deputy Director of the Centre for Applied Autism Research at the University of Bath. Katie‘s work has two main strands - autism and forensic psychology, and the intersection between them. One area of her research examines how autistic people fare when they are interviewed by the police as a witness or as a suspect. Her current ESRC*-funded research project is ‘Measuring Special Measures: Supporting access to justice for autistic people‘. She has also recently completed a secondment working with the Home Office on the Cyber Prevent strategy. This presentation will share findings from the Measuring Special Measures project: “The socio-cognitive differences associated with autism make [giving evidence] especially challenging for autistic people. For example, understanding others’ mental states, interpreting social contexts, recalling personally experienced events from memory, and engaging in reciprocal social communication [...].. These characteristics constitute significant barriers to autistic adults providing credible, accurate and reliable testimony during criminal proceedings unless a more enabling environment is provided. In this talk, I will outline the evidence base on the difficulties experienced by autistic individuals when they are providing testimony and discuss implications for the provision of Special Measures and other adaptations to facilitate access to justice”. *Economic and Social Research Council
Edmore Masendeke, University of Leeds Edmore Masendeke is a PhD student at the School of Law. His project investigates the barriers defendants with mental health conditions or learning disabilities face to access to communication support during court proceedings in England and Ireland. Edmore is a former Early Stage Researcher on the DARE (Disability Advocacy Research in Europe) Network. His academic interest in disability and law stems from his own experience of life as a disabled person.
Andi Brierley, Leeds Trinity University Andi Brierley is the Head of Access, Participation & Outcomes at Leeds Trinity University. He has an extensive career in Youth Justice. In his work, he combines his practice experience and research; alongside his lived experience of adverse childhood experiences, care experience, school exclusion, drug addiction; & youth incarceration. He recently appeared on Channel 4 News, advocating against the use of PAVA (similar to pepper) spray on children in custody. Andi’s presentation will draw on his professional and personal experiences to explore how adverse childhood experiences can result in criminal justice involvement, and may impact participation in legal proceedings.
Kama Melly KC, Park Square Barristers Kama Melly KC's practice with young defendants has been described by the Court of Appeal as ‘a model’. Ranked in the 2023 editions of Chambers & Partners and The Legal 500 for crime, Kama also has notable expertise in cases concerning sexual offences and has a particular interest in issues of Diversity and Inclusion, and facilitating the evidence of vulnerable people. Among her many other roles, she sits parttime as a Judge in the Crown and Family Courts. Kama’s presentation will explore person-centred approaches to special measures, which go beyond the provisions set out in the Youth Justice & Criminal Evidence Act (1999), including trauma-informed approaches to cross-examination.
Fiona Rutherford, JUSTICE Fiona Rutherford joined JUSTICE as Chief Executive in February 2022. Prior to JUSTICE, Fiona was the Director of Access to Justice Policy, Ministry of Justice. Her previously held roles and positions include: Deputy Director for Legal Aid Policy, Justice and Courts Policy Group, Her Majesty’s Courts and Tribunals Service; National Crime Design Lead for Her Majesty’s Courts and Tribunals Service; Senior Leader for the Crown Prosecution Service; specialist criminal barrister; UK Government representative at the UN for the Convention on the Elimination of Discrimination Against Women (CEDAW) in Feb 2019. Fiona will chair the Access to Justice Conference panel discussion.
About JUSTICE JUSTICE is a UK-based law reform and human rights charity. The organisation strives for a fair, accessible, and equal justice system. Their work aims at making practical, realistic, and timely changes, addressing some of the most urgent issues facing the United Kingdom’s legal framework. JUSTICE uses its voice to influence and improve policies and practice, while not being afraid to scrutinise and challenge developments in the justice system that threaten the country’s adherence to human rights and the rule of law. JUSTICE’s work spans administrative, civil, family and criminal justice in the United Kingdom. The organisation runs working parties, comprising JUSTICE members and other experts, to identify and address areas ripe for reform. The organisation also acts as a bridge between law and lawmakers, briefing politicians from all parties on draft legislation relevant to the justice system in the UK and devolved Parliaments. JUSTICE responds to consultations from Government, parliamentary committees and other significant bodies within their areas of expertise. The charity additionally submits third-party interventions before the UK Supreme Court and the European Court of Human Rights in cases that raise critical points of law in their areas of expertise.
About Communicourt Communicourt was founded in 2011 to support fairer access to justice for people with communication needs in the justice system. The organisation began with just one intermediary providing communication support to defendants in the criminal courts. Today, Communicourt employs over 100 full time intermediaries who work in a wide range of settings, including criminal trials, care proceedings, private family law cases, employment tribunals, immigration hearings and other proceedings. The organisation is the largest provider of court appointed intermediary services in England and Wales, and a Managed and Approved Service Provider for His Majesty’s Courts and Tribunal Service (HMCTS) under the Appointed Intermediary Service Framework. What is an intermediary? Intermediaries are communication specialists, who work with people to help them understand and participate in legal proceedings. Intermediaries are appointed by the court to facilitate communication with a court user. This includes carrying out detailed assessments to understand any special measures or adaptations that can be made to help them participate in their case. In addition to understanding questions put to them during their evidence (and being able to give their best evidence), court users also need to understand the evidence against them and make informed decisions about their case. Intermediaries can support court users at all stages of proceedings, including conferences, where court users must be able to understand legal advice and give clear instructions. The intermediary role is impartial, and their duty is to the court. Usually Communicourt receives referrals directly from solicitors, and there are clear funding paths in place for the service through the HMCTS Appointed Intermediary Service Framework.
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Further reading & information The Advocate’s
Equal Treatment Bench Book
1 Gateway Toolkits
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Free online resource containing practical, evidence-based guidance on communicating with vulnerable witnesses and defendants, including (but not limited to) guides to working with autistic court users, deaf court users, young court users, and court users with a learning disability.
Reference text for the Judiciary in England and Wales which aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals. It helps enable effective communication and suggests steps which should increase participation by all parties.
3 Youth Justice & Criminal
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Evidence Act 1999
Section 33 concerns the use of special measures, including the use of special measures (such as evidence via live-link) for vulnerable accused persons, who “suffer[s] from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise ha[ve] a significant impairment of intelligence and social function”.
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Obtaining testimony from autistic people
Chapter by Dr Katie Maras in Handbook of Autism and the Law (Volkmar et al., 2021) providing an overview of key differences in social communication and memory in autism spectrum disorder (ASD) that are relevant to obtaining testimony. The chapter considers the effectiveness of interviewing techniques, as well as the impact of suggestibility and compliance.
Connecting with young
Take part in autism at court research Scan this code to participate in Dr Katie Maras’ project: Autistic people's experience of participating in court and tribunal proceedings.
The project seeks the views of legal professionals who have worked with autistic clients. Participants receive a £10 shopping voucher. Contact autismincourt@bath.ac.uk for more information.
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Legal aspects of memory: Autism
Chapter by Dr Katie Maras in Legal Aspects of Memory: A summary of scientific evidence issued by the Psychology and Law Sections of the British Academy (Baddeley et al.), which summarises psychological research on memory and is designed to be of practical value to busy legal and criminal justice professionals.
Your Honour can I tell you my story?
7 people in trouble:
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Risk, relationships and lived experience (2021). Andi Brierley’s critique of youth justice based on lived experience, theory and practice looks at the topic through a new lens, suggesting that some existing ways of dealing with children and young people may do more harm than good.
Published by Andi Brierley in 2019, Your Honour Can I Tell You My Story? charts his journey from young person in care, through the youth justice system and prison, to his current role today as a youth justice specialist.
The Access Brief The Access Brief is a growing library of free resources and information for legal professionals working with court users who have communication difficulties. Developed by experienced Communicourt intermediaries, The Access Brief contains resources on recognising communication needs, intermediary assessments, Ground Rules Hearings, supporting communication throughout legal proceedings, common diagnoses which may impact communication and more.
THE ACCESS BRIEF
FOR LEGAL PROFESSIONALS
The Access Brief library includes guides on topics including:
Autism & legal proceedings
How to use visual aids
A guide to possible communication difficulties and differences which may impact an autistic court user’s participation in legal proceedings, including tips and strategies legal professionals can implement to support their client’s participation. Please see full example resource on the next page.
A guide to using visual aids to support a court user’s ability to attend to, process, understand and retain key information. These example resources can be used in conferences by legal professionals to explain common legal concepts and ideas.
Traumatic Brain Injury & legal proceedings
How can an intermediary assist throughout a trial?
Created with the assistance of Dr Nicholas Behn (City, University of London) this guide explores the impact that a Traumatic Brain Injury can have upon a court user’s participation in legal proceedings, with detailed tips legal professionals can use to support a wide range of related difficulties.
A bite-sized guide to intermediary involvement at all stages of a criminal trial, from pre-trial conferences and Ground Rules Hearings, to a defendant’s evidence, pre-sentence interviews and sentencing hearings.
THE ACCESS BRIEF
IN PARTNERSHIP WITH
Autism & legal proceedings What is autism? Autism is a lifelong neurodevelopmental difference. Autistic people may think, communicate and interact with the world in a different way to neurotypical people. Autism has many different features, and no two autistic people are the same. However, there are some common autistic traits. These may include cognitive and communication strengths. For example, some individuals may: Have strong attention to detail Be creative and visual thinkers Be honest and truthful in very direct ways Some autistic people may also have cognitive or communication differences, which can make communication in neurotypical settings more challenging, for example: Executive functioning differences, which can affect planning, focussed attention, task initiation and other skills. Differences in this area may drive a need for routine and difficulties adapting to changes and transitions. Strict adherence to routines, and repetitive behaviours Difficulty seeing things from different perspectives. A very strong and inflexible sense of justice and fairness.
A narrow range of interests and very intense interests Sensory differences, including over or understimulation from external stimuli such as smell, heat, light, noise or touch. Difficulty predicting what is going to happen next. Difficulties understanding non-verbal communication or the intent of language Autism can co-occur with conditions such as a learning difficulty or disability, attention deficit hyperactivity disorder (ADHD), dyspraxia and epilepsy. Some autistic people have mental health conditions like depression and anxiety.
Undiagnosed autism Many autistic people do not have a diagnosis. This is particularly common within the criminal justice system, where individuals may not have had access to support or services over the course of their lifetime. If you have noticed some of the traits listed, is important to consider whether the court user you are working with may have undiagnosed autism, in order to adapt your communication and make appropriate interventions (e.g., requesting an intermediary assessment).
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The following presentations may indicate that your client has autistic traits: Difficulties with the use and understanding of language, which make social interactions more challenging Struggling to understand the verbal information you provide (in combination with other indicators) Very direct responses, or speaking at length about a particular topic and frequently digressing to speak about that topic Sensitivity to sensory stimuli in the environment e.g., light and noise Heightened anxiety or difficulty regulating their emotions during meetings, conferences and hearings (in combination with other indicators)
Impact on communication Your client may have differences in their use and understanding of language, making neurotypical social interactions more challenging. They may have difficulties with social communication such as understanding ‘social rules’ (e.g. conversational turn-taking), understanding non-verbal communication, or may have different preferences regarding eye contact (note reduced eye contact does not mean an individual is not listening). Your client may speak at length about topics of interest to them, which do not appear immediately relevant to the situation. They may not respond to social cues to return to the topic of conversation.
They might find it difficult to see things from another’s point of view or interpret others’ behaviour. They may see things in ‘black and white’ terms or demonstrate empathy differently. Your client may have difficulty understanding non-literal language or drawing inferences from information. They may not understand sarcasm or humour. Their speech and language skills may be limited. While some autistic people have above average language skills, others may be nonspeaking, or have difficulty expressing themselves verbally. They may also struggle to process and understand verbal information. Emotional changes may have a considerable impact upon your client’s communication skills. For example, when upset, they may have more marked communication difficulties. For some autistic people, stress, emotional changes, overstimulation, fatigue and other factors can make it especially difficult to communication in neurotypical settings. Some people report experiences such as autistic burnout, autistic meltdowns and shutdowns. It’s important to keep in mind that every autistic person is different. For this reason, their presentation and difficulties throughout court proceedings can vary considerably. There is no ‘one size fits all’ approach and it is important not to make assumptions about your client’s communication skills. An intermediary assessment will explore each area of communication to identify your client’s specific strengths and difficulties, then make bespoke recommendations to assist your client at court. Your client does not need to have a formal diagnosis for a referral to be made. Learn more about intermediary assessments here.
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Communication tips Introduce yourself and your role and allow plenty of time for rapport building. Ask about your client’s interests and discover what is important to them.
Check your client’s understanding with direct comprehension questions. E.g., “What does bad character mean?” and “What will happen next in court?”.
Ask your client what they find helpful and unhelpful when communicating about their case or at court. They may have good insight into strategies which assist them.
Use visual resources (if this is a strategy your client finds helpful). Many autistic people find visual resources, like diagrams, helpful when processing information. Your client may prefer to use these types of resources discreetly, so be sensitive to this wish. If your client has the required level of literacy, diaries, phone calendars, reminders and post it notes may also prove helpful. Ask your client which tools they use in everyday life. Read our guide to using visual aids.
Be mindful of the environment, it can be helpful to ask if the room is suitable e.g. not too bright or noisy. Adapt the setting where possible.
Consider gesture and expression. Some autistic people may find gesture and facial expression helpful in supporting understanding. Others may find extraneous gesture or facial expression distracting or confusing. Use short sentences and simple, concrete language. Avoid ambiguous or figurative expressions like, “It’s in the judge’s hands”. Give clear expectations and instructions, it can be helpful to discuss topics in a predetermined order, you could write them down and tick them off as you go along. Outline ‘next steps’ clearly in advance. Knowing what to expect, what will happen and who they will speak to can help reduce anxiety. Timetables, calendars and pictures (e.g., of locations or people) may be helpful. Allow extra time for processing information.
Facts & statistics
1%
of people in the UK are autistic (National Autistic Society, 2022)
5-7%
of people referred to liaison and diversion services by the courts are autistic (Criminal Justice Joint Inspection, 2021)
19%
of people in UK prisons have autistic ‘indicators’ (Criminal Justice Joint Inspection, 2021)
Sources National Autistic Society [Website] www.autism.org.uk/adviceand-guidance/what-is-autism, Accessed: September 2022 Criminal Justice Joint Inspection (2021) Neurodiversity in the criminal justice system: A review of evidence, Accessed [online]: September 2022
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Further reading The Advocate’s Gateway - Toolkit 15: Witnesses & Defendants with Autism National Autistic Society (NAS) - Criminal Justice: a guide for police officers and professionals Autism and the criminal justice system: An analysis of 93 cases (Slavny-Cross et al, 2022) ‘Our normal is different’: autistic adults’ experiences of the family courts (George et al, 2020)
From The Access Brief How to create visual aids Supporting emotional regulation
Intermediary services If you are concerned about your client’s ability to communicate effectively and participate in legal proceedings, Communicourt can help. We will assess your client to understand their communication needs and how these might affect them in court. Your client does not need to have a diagnosis. Our reports will identify any particular communication issues and make bespoke recommendations to help you and your client throughout proceedings. If intermediary assistance is recommended, one of our highly trained intermediaries can be there throughout proceedings to facilitate those recommendations. Intermediaries are mostly funded by HMCTS, with no charges or payments required by legal representatives.
ADHD in legal proceedings Intermediary assessments How can an intermediary assist at trial?
About Resources for Autism Resources for Autism is a registered charity, providing practical services for children and adults with a diagnosis of autism and for those who love and care for them. The charity has a team of trained, enthusiastic and kind staff and volunteers offering a wide range of support. All staff are autism specialists who understand communication and sensory needs. Explore the Resources for Autism website to access their training, to find anxiety management resources for autistic adults, to learn more about their services and to donate to their important work.
How to book an intermediary Refer online. Refer your client for an assessment through our online portal (5 minutes). Funding. We send a quote for you to send to Legal Aid / HMCTS to approve (24 hours). Book assessment. Once funding is approved, please let us know. We will schedule an assessment (2-6 weeks). Assessment will take up to 3 hours and can be conducted in person or remotely. You will then recieve a report (7 days). Book dates for hearings or conferences. We will send you booking forms to be signed by the court. Once signed, we will book the intermediary.
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Acknowledgements With thanks to all at JUSTICE, and particular thanks to Fiona Rutherford, for supporting us to develop and plan the event. £10 from each full price ticket sale will be donated to the vital work JUSTICE undertake. If you would like to learn more and support their work in law reform, visit www.justice.org.uk. A sincere thank you to all of the speakers who kindly shared their valuable time and knowledge, HHJ Neil Clark, Kama Melly KC, Dr Katie Maras, Edmore Masendeke and Andi Brierley. Special thanks to Chris Packham, for generously volunteering his experiences of the courtroom as an autistic person, and sharing these with great insight and clarity.
Feedback We want to know what you thought of the Access to Justice 2023 Conference. We would be very grateful if you could take a few minutes to complete this feedback form (see link or scan QR code): www.forms.office.com/e/g5vr7XbiqQ Your views will help us to shape future events, supporting us to share information about communication difficulties and differences in legal proceedings. Thank you very much for your time.