Supporting Defendants with ASC in the Criminal Justice System Naomi Mason Tel:

About me Speech and Language Therapist with over 30 years experience Registered Intermediary with MoJ since 2005 Non Registered Intermediary working with defendants since 2010 Director of Communicourt Ltd

Communicourt offers a range of services to courts to assist where communication is the main issue: We train, support, and provide intermediaries for vulnerable people in the family or criminal courts We give expert opinion on communication disorder in the family courts We train lawyers (barristers, solicitors, judges) about strategies to assist vulnerable people to access the criminal justice system We also offer training and support to police officers and social workers about how to communicate with and how to interview vulnerable people more effectively

What’s an intermediary? Have you ever worked with an intermediary?

An intermediary facilitates communication between a witness or defendant and others in the justice process to ensure that the communication process is as complete, coherent and accurate as possible IMPORTANT: impartial, neutral, and primary duty is to the court

The Witness Intermediary Scheme Originally a pilot project Now available in all 43 police force and CPS areas in England and Wales Approximately 120 active Registered Intermediaries (RIs) registered on the Intermediary Register (national database). SOCA operate and manage the Scheme’s matching service on behalf of the Ministry of Justice. Contactable on

What does an Intermediary do to help a witness with communication? Meets witness, gains rapport Carries out a detailed assessment of communication Offers advice to police officers about how best the interview might be conducted Present at the interview to help with communication Report to the court Pre trial familiarisation visits Present while witness gives evidence

But what about vulnerable defendants?

C v Sevenoaks [2009] EWHC 3008 This judgement provides authority for the court to appoint an intermediary to support a defendant to follow the proceedings and to give evidence, if without such assistance he would not be able to have a fair trial.

“ He must be given such help as he needs to understand the case against him; he must be helped to give his own side of the story as his proof of evidence is drawn up; it may be that he needs help to speak to lawyer, let alone to the court; he will need help to follow the case as it proceeds…… he will need particular help to decide if he is to give evidence, and if so he will need help to do so. It is in the highest degree unlikely that this level of help can be given by a lawyer, however kind and sympathetic she may be. He needs someone to befriend and to help him, both during the trial itself and in preparation for it. In short, he needs an intermediary.”

The case law is on our website “useful documents to download”

R v Camberwell Green Youth Court 2005 UKHL 4 R(P) v West London Youth Court WLR 1219 SC v the United Kingdom EHRR 10 R v H 2003 EWCA Crim 1209 SC v the United Kingdom EHRR 10

“The right of an accused to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to follow the proceedings……. The defendant should be able to follow what is said by the prosecution witnesses, and if represented to explain to his own lawyers his version of events, point out any statements with which he disagrees, and make them aware of any facts which should be put forward in his defence”

R v Camberwell Green Youth Court 2005 UKHL 4 House of Lords made clear that the court has a wide and flexible inherent power to take such steps as are necessary to ensure that any defendant, but particularly a child, has a fair trial.

R(P) v West London Youth Court WLR 1219 This court took it as accepted that the Youth Court had an inherent power to take such steps as would enable the young defendant to participate effectively in the trial, including, “being pro-active in ensuring that the claimant had access to support”

The Court of Appeal Criminal Division recognised that the courts have an inherent right, indeed a duty, to appoint an intermediary to help a defendant follow the proceedings and to give evidence, if without such assistance he would not be able to have a fair trial. R v H 2003 EWCA Crim 1209

SC v the United Kingdom EHRR 10 “The right of an accused to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to follow the proceedings……. The defendant should be able to follow what is said by the prosecution witnesses, and if represented to explain to his own lawyers his version of events, point out any statements with which he disagrees, and make them aware of any facts which should be put forward in his defence”

Intermediaries for defendants

N.B. Intermediaries that are registered with the Witness Intermediary Scheme are called “Registered Intermediaries” and work with witnesses Intermediaries working with defendants are called “non- registered intermediaries” Sometimes it is the same person with a different title!

Different skill set because defendant is not just evidence giving…. Conferences – understanding the case against him/her Giving instructions inc G/NG Understanding evidence in court in real time Giving their evidence Understanding the verdict and consequences

How do we do it? Detailed assessment Report for the court Preparation for the trial including conferences – options, consequences Pretrial familiarisation visit Ground rules hearing Attendance at trial (Sentence hearing)

Skills required Swift rapport building Detailed assessment of communication knowledge of mental health problems, autism, child development, learning disability Report writing skills How to apply assessment findings to the needs of the court setting Experience in court environment Flexibility and endurance!

Autistic Spectrum Condition

The Triad of Impairment Social interaction Language and Communication Imagination/flexible thinking Sensory differences

1. Language and Communication All people with ASC have difficulties with communication Very often the difficulties are about comprehension “Good” expressive skills may mask the weaknesses Abstract concepts may be particularly difficult to explain – risk

Unusual vocabulary I’m going to be asking questions on behalf of XX Is it your recollection that.... How far away were you in relation to the bench? What were your thoughts initially? What was his demeanour? Tell us what you lied about on that occasion Did you get any injuries? While these beatings were going on, you were having a convivial evening, weren’t you?

Long (compound) sentences Compound sentences contain and, then, but, and can be broken down into two separate sentences “You went to the park and Jane was there” – You went to the park – Jane was there

Complex sentences Complex sentences include subordinating conjunctions – when, because, although, who, so that (Were you telling the truth when) you said he punched her? You said he punched her. Were you telling the truth? (Am I right in understanding that) this was around the time that you went to college? Was this when you started college?

Needless preambles e.g. “remember when....”, “can you remember....” “I’d like to take you back to the time when…” These overload the auditory working memory unnecessarily

Literal understanding

Their responses Allow thinking time Expressive v. receptive skills Echolalia without understanding Don’t expect eye contact May have monotone or stilted language May come across as stubborn, or over compliant Further help – NAS tel

What can help? Keep your own language simple Avoid “flowery” phrases and abstract ideas Keep sentences short and to the point – be blunt Speak slowly and clearly Remember he will take you literally Use the person’s name to get their attention first Give time to process what you say and to respond Keep bringing back to topic “this is what we are going to talk about now”

2. Social Interaction

Language skills Taking turns in conversation Changing the style of conversation to suit the listener Interpreting nonverbal communication, facial expression, tone of voice Keeping to the topic Judging the amount of knowledge the listener has, knowing how much info to give

What can help Not too many new people to meet Bring back to the topic Avoiding non literal language, sarcasm Awareness of nonverbal communication A proper break from social interactions in the breaks

3. Imagination and Flexibility of Thought

Routine, dislike of change. Keep the situation as calm as possible Assessments - explain exactly what your assessment will involve, how long it will take, what will happen at the end Anxiety limits our ability to process information Familiar person present as supporter Trial - visit to court (including witness box) Explain order of proceedings, what happens when, why they are having to wait ? Use video link for evidence giving ? Allow special object, may need to carry out repetitive movements when unsure what is going to happen next

Using Props to make it visual Visual list of what’s happening when Cards Cards for options Figurines Cut-out shape of baby Use visual aids available in the room

Sensory Issues Hyper – can’t take any more in from that sensation Hypo – wanting to create and stimulate that sensation May have unusual ways to regulate sensations

Keep the situation calm Allow him/her to use self-calming strategies e.g. repetitive movements. May need a “safe” place Allow security object. Removing it may cause distress. Provide stress ball, twiddle toy Prepare the person for any personal/physical contact. Advise dock officers Be alert to background noise, temperature changes

In Summary We have a great distance to go but we have started the journey Intermediaries are an important travelling companion We need to spread the news about their availability, specialist skill set, and the difference and intermediary can make to a fair trial process

Leading provider of non registered intermediaries Based in Birmingham but offering a service across the UK Our intermediaries have a range of specialisms including mental health, learning disability, autistic spectrum condition, head injury, substance misuse All intermediary assessments and reports are prepared by qualified and experienced Speech and Language Therapists

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