Friday, 27 April 2012

Are all young defendants offered a fair trial?

Penny Cooper

By Penny Cooper, a Barrister and Associate Dean at City University Law School

For many people, an appearance in court is a confusing blur of baffling procedures and jargon; for more than half of young people with speech, language and communication needs (SLCN), I can only think it is akin to being tried in a court in a foreign language that you don’t understand. One young man Jack (not his real name) who was involved in last year’s civil disturbances, said he ‘didn’t have a clue what was going on and for guidance looked to his Mum, sitting in the visitors’ gallery. Needless to say the ‘non-verbals’ were not positive; his Mum was crying. When asked what would make a difference Jack said “It would help if they had, like, a person who could stand with you to help you understand” . What Jack doesn’t know is that there is a name for that person – an intermediary.

Unfortunately if Jack was permitted his ‘person’ to help him there are several hurdles to get over:

Hurdle one - there is no statute in force that guarantees an intermediary for a defendant, but judges have a responsibility to ensure that trials are fair - so you have to hope for wise judges.

Hurdle two - assuming the judge is wise and informed, there is no clear mechanism for ‘screening’ the defendant for speech, language and communication needs. Who and how do they check to see if the defendant needs an intermediary? This is why training the police and the lawyers about what to look for is so important.

Hurdle three - Even if a judge says that the defendant can have one, their lawyer will probably have difficulty finding someone with expertise to act as an intermediary. Registered Intermediaries have special training and accreditation so that they know how to work in the court system for the benefit of witnesses, but defendants have no way of getting a Registered Intermediary because the government hasn’t made the Ministry of Justice scheme available to defendants.

Even if the defendant’s lawyer does identify an intermediary there is no obvious source of funding. When people ask for funding, they can get told that legal aid won’t pay for it.

In the interests of justice and a fair trial, it is vital that the Government looks at the absence of Registered Intermediaries for defendants. With over half of young people in the courts with speech, language and communication needs, it could be that the majority of defendants would be eligible for an intermediary. However the price for not doing this is too high: defendants won’t be properly part of their own trial if their speech, language and communication needs are not being met. Crucially, there are profound implications in terms of accuracy of statements, a fair trial and the sentence imposed. A defendant is not guilty until found so by the court, after a fair trial. But are we offering a fair trial to young people with communication needs if we don’t support them to understand what people are saying to them and to ensure they get their story across?

Penny appears in a new film, organised by our Youth Justice team. Click here to view it

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