This month we hosted Communicourt’s first ever conference. Held in partnership with UK legal reform charity JUSTICE, the Access to Justice Conference 2023 took place in Leeds and online, with attendees including legal practitioners, law students, clinical psychologists, ISVAs (independent sexual violence advisors) and representatives from many other connected professions.
Now that the dust has settled, we’d like to reflect on some of the most important messages and discussions generated by the conference – and give a big thank you to all of our guests and speakers. The whole Communicourt team is extremely grateful to have been able to take part in such a multidisciplinary conversation about making justice more accessible – and we’re very pleased to have been able to share a range of perspectives on this multifaceted issue.
Although the majority of our speakers focussed on criminal proceedings, many of the ideas they shared are also applicable in the family courts and other proceedings. Though it wasn’t possible to explore every factor which may result in barriers to participation (on this occasion), we hope conversations around diagnoses like autism, learning disability and trauma, offered a window into some key areas for improvement – which stand to benefit all court users, including those with other accessibility requirements.
Full recordings and resources from the conference will be shared with all attendees by the end of November.
Chris Packham: Video-recorded foreword
We are incredibly grateful to broadcaster, naturalist and environmental campaigner, Chris Packham, who very generously shared his experiences of attending court as an autistic claimant. Chris’ clip was played at the outset of the event, setting the stage for broader discussions about inclusion in legal proceedings.
Chris eloquently reflected on the importance of predictability and foreknowledge for autistic people attending court. He explained that familiarisation with the hearing process and environment could be very important steps for court users, assisting them to manage difficult emotions (such as anxiety) more effectively, and allowing them to focus on the matter at hand.
Speaking about the court environment itself, Chris showed us the courtroom through his individual autistic lens, commenting that it was “a terrible cluttered jumble… The visual complexity of that environment was challenging for a while. Lots of hanging chandeliers, some with bulbs that were working, some with bulbs that weren’t…”, and remarking that it took him around two hours to feel that he was not distracted by the complex visual environment. He explained, “If I’m managing my autism, I’m not focusing on what I need to be focusing on”.
Chris also raised the enduring issue of audibility in legal proceedings – a matter which affects all court users, regardless of neurodivergence. He commented, “It was very difficult to hear. There were suspended microphones, but they didn’t seem to amplify the voices of the barristers at all. […] because we were sat behind the barristers who were facing the judge […] a number of people were struggling to hear […] whether you’re neurodiverse or not, that’s really frustrating. You’ve got to be able to hear that stuff”.
In summing up, Chris shared what he described as very “simple”, common sense suggestions for making the courts more accessible for autistic people – particularly sharing clear, detailed information about the hearing process and environment in advance. He also suggested the provision of videos showing the specific courtroom the individual would attend, to allow them to familiarise themselves with the setting in advance.
Although related resources do exist (like the video guide for witnesses attending court below, created by the Ministry of Justice), most videos of this type depict a generic courtroom in optimum condition. This does not often reflect the realities of most courtrooms and does not offer insight into the specific setting the autistic court user will attend.
In addition, many such videos are filmed for use by witnesses, rather than by other participants in proceedings. In this example, complex vocabulary like “specific” and “prosecutorial agency” is used, which would not be easily understood by all court users. Non-literal language (“testing the strength of the prosecution”) is also used, which may not be easily understood by some autistic court users.
Although Chris modestly described his suggestions as simple, questioning whether they would be of any help, his common-sense ideas are important – and, in fact, quite challenging to implement in the most effective way. These are certainly suggestions worth further exploration.
His Honour Judge Neil Clark
Opening the speaker sessions, HHJ Neil Clark provided a far-reaching overview of our legal system’s continuing journey towards improved accessibility. He acknowledged that change is about gradual evolution, rather than dramatic shifts, pointing to how far our legal system has come over the past 150 years. He commented: “It wasn’t until 1851 that the defendant in a civil case could give [any] evidence in their own defence. It wasn’t until 1898 and the passing of the Criminal Evidence Act, that the first defendant was able to give evidence under oath at all”.
His Honour also offered a glimpse into his particular interest in accessible justice, explaining that, when his mother developed a degenerative condition, he began to consider whether “bright people like her, with communication needs” would have real access to justice. He commented, “When I went to court and saw someone giving evidence, I’d think, I wonder how my mum would feel about doing that?”.
HHJ Clark also reflected upon the meaning of ‘best evidence’, noting that “achieving best evidence doesn’t just mean from the perspective of the prosecution” and asked, “In criminal court, why is it that we focus so much on cross-examination?”.
Kama Melly KC
The next speaker tackled the topic of person-centred approaches to special measures, with a particular focus on trauma-informed practice and working with young court users. Kama Melly KC provided a great deal of insight into the realities of legal proceedings for court users with vulnerabilities, and for those representing them. In her experience-driven, pragmatic presentation, she shared many of the overlooked barriers to effective participation which go unaddressed in legal proceedings – and many of the small adjustments which can be made to assist (but are all-too-rarely implemented).
In one, striking example (which will not be at all unfamiliar to intermediaries), Kama stated: “I watched [a] child give evidence for hours without breaks, until she agreed with every single question. She was asked frequently if she wanted a break by the judge. She didn’t want a break, she wanted to get out, so she said ‘no’ every time”. She added, “This wasn’t about ensuring the defendant had a fair trial. It was about putting the case and getting to the final objective”.
While the Youth Justice & Criminal Evidence Act (1999) set out a number of broad special measures (such as video-link evidence and intermediary assistance), Kama’s presentation highlights the myriad ‘small barriers’ which prevent court users from participating in legal proceedings fairly, which are very often overlooked and brushed aside due to factors like time constraints.
Attempting to address these ‘small’ (but very significant) barriers, therefore, falls to individual legal practitioners and, in some cases, intermediaries, who have first-hand insight into the communication needs of the court users they work with. However, under considerable professional pressure, not all advocates have the time or resources to ensure such barriers are addressed. Kama shared some examples from her own practice, which illustrate the deep thoughtfulness of approach which is often required to support a vulnerable court user.
She explained that she often chooses to ‘give words’ to her clients, which they can use to advocate for themselves during cross-examination. For example, telling them that, if they feel pressured to give a binary ‘yes’ or ‘no’ answer in the witness box, they should say something like, “I’m sorry, I can’t explain that in one word”, which will prompt the judge to allow them to provide a more nuanced response.
Kama also explained her practice with regards to witness statements: “Everyone who reads their witness statement thinks they have taken it all in and they put it to one side. I annoy police officers. I make them read them out to the witness.”
Although intermediaries frequently work alongside excellent, intuitive and client-focussed barristers, the attuned practice outlined by Kama during her presentation is very uncommon. Very few legal practitioners, no matter how well-intentioned, have the bandwidth to ensure their practice is truly person-centred and responds to the specific needs of the client on this level.
Speaking later, during the panel discussion, Kama stated that trauma-informed questioning will “be the next big training we all engage with [as legal practitioners]”, also noting that updating training would be very beneficial for more senior legal practitioners, whose knowledge, awareness and skillset may not be in-step with current best practice around trauma.
Drawing on both his lived experience of care, drug addiction and the youth justice system, and his extensive experience of working in youth justice, Andi Brierley addressed how we, as professionals, engage with young people caught up in the criminal justice system. His presentation highlighted that, although treated as discrete labels, terms like “perpetrator”, “defendant”, “criminal”, “witness” and “victim” are often overlapping. He spoke about the impact of adverse childhood experiences and the common pathways into the criminal justice system, which can lead from disadvantage.
Andi encouraged the audience to be more intentional in their communication with young defendants and offenders, stating, “When we come into contact with those children [who have not had attuned care], Every interaction is an intervention”, adding, “Change the word engagement to connection. Switch from ‘they’re not engaging’ to ‘we’re not connecting’. Relationships are reciprocal, you’ve got responsibility for that, too”.
Dr Katie Maras
Researcher and senior lecturer, Dr Katie Maras’ presentation explored a wide range of topics relating to the experiences of autistic people subject to police questioning and cross-examination. Her talk included information about memory differences in autistic people, the most and least helpful questioning approaches, and relevant studies (like Bagnell et al, 2023, which have found that “truth-telling autistic mock-suspects reported fewer extricating details that would support their innocence than non-autistic mock-suspects”).
Katie then considered the barriers an autistic defendant may face at court, and shared her project regarding the effectiveness of special measures in cases involving autistic people. This project is currently examining important questions, such as: “What effect do Special Measures have on autistic witnesses’ and defendants’ experiences and ability to provide their ‘best evidence’ and are further measures needed?” and “What is the effect of special measures, diagnosis disclosure and juror instructions on how autistic individuals are perceived by jurors and judges?”.
Katie also invited legal professionals with experience of working with autistic people in court or tribunals to participate in her current project, which still requires participants. Participants can undertake an online questionnaire or take part in an approximately one-hour remote interview (those who take part will receive a £10 shopping voucher). Complete the questionnaire here: https://uniofbath.questionpro.eu/t/AB3uyQnZB3vi1j or contact email@example.com for more information.
Concluding the speaker sessions, University of Leeds PhD student, Edmore, shared his research into “The court experiences of defendants with mental health conditions or learning disabilities in England”. Although drawing from a small sample, Edmore’s research uncovered some valuable insights into the court experiences of his participants.
The quotes included in his presentation vividly shared these experiences, and the barriers these individuals faced to participation. For example, one interviewee explained, “I didn’t understand what was happening. It was like I was in a daze; like I didn’t really understand what … what the questions were asking, and like what court is like, you know, I guess, how to get in … I didn’t understand like what the judge is saying or any questions that they are asking me, to be fair. It was just mumbo jumbo. It is just like in a different language which, you know, I really didn’t understand.”
Another participant reported, “I was unsure whether I was acquitted, that is, a formal declaration that I was not guilty of the charges put in front of me. He (the solicitor) said ‘No, I wasn’t acquitted. The case was dropped.’ So … that … that only came … that was only explained to me weeks afterwards…”,
Concluding his presentation, Edmore stated, “There has been very little empirical research on the effectiveness of the support measures that courts are expected to rely on in the absence of intermediary assistance – and defendants with cognitive impairments’ views and opinions of that experience. The findings of this research suggest that those who received the support found it beneficial, while those who did not receive this support found it difficult to follow and understand what was happening during court proceedings”.
A big thank you
The entire Communicourt team would like to thank each attendee and speaker for their time, knowledge, and engagement with the important topic of access to justice. We sincerely hope that the event has generated discussions about how we can all work to further improve the accessibility of the justice system.
As His Honour Judge Clark points out, these improvements may be slow and incremental, which makes continuing these conversations – and keeping accessibility firmly in mind in our daily practice – extremely important. We are particularly inspired by Kama Melly KC’s identification of the myriad ‘smaller’ barriers and accommodations, which can make a big difference to an individual’s participation in legal proceedings (provided they are implemented in an attuned way). There is no one-size-fits-all approach. However, if those working alongside court users can more easily identify barriers and continue to share our practice, we can slowly make positive change on an individual level.
Bagnall, R., Russell, A., Brosnan, M. & Maras, K. (2023). Police suspect interviews with autistic adults: The impact of truth telling vs deception on testimony. Frontiers in Psychology, 14. https://doi.org/10.3389/fpsyg.2023.1117415
Interested in learning more about communication differences and difficulties which can impact participation in legal proceedings? The Access Brief is a library of free bite-sized guides to everything from ADHD at court, to how an intermediary can work alongside an interpreter to support a court user’s understanding of proceedings.
For further information and queries, please contact firstname.lastname@example.org