The saying, “Start them young”, has taken on a whole new meaning to me.
Hi, I’m Georgie and my younger brother has autism and I have been his ‘intermediary’ since I was five years old.
Autism is a type of developmental disorder that affects how a person communicates and interacts with the world. For my little brother, this world that so many others felt was normal, felt like living in a simulation. He didn’t start speaking until he was over four years old and, still to this day, struggles to understand the concept of sarcasm; this made basic day-to-day interactions very difficult.
My mother has always told me that I continually found a way to ‘understand’ my brother despite his difficulties, and I like to feel like I made even a small difference to his communication in early life. Her favourite story is from when my brother was three years old and could not verbalise what he wanted to eat. She told me how I drew out a picture of both items of food (a cheese string or a Babybel, probably!) and asked him to point to what he wanted. I now use visual aids as a strategy in my work as a court appointed intermediary.
Time at university
Studying psychology was a no-brainer to me. From a young age, I have always loved looking at the different ways our brains work and how autism affects the way my brother interacts with the world. For example, making small talk with a stranger on the bus, my brother would divert to his internal, learnt script. He would find it hugely distressing if anyone diverted from the script to answer the question, “How are you?”, with, “Not very good”.
I took modules in neuroscience, psychopathology and anything that would remotely relate to autism and how I can help my brother at home. However, it seemed that the research on autism is overshadowed by its negative connotations in relation to emotion, empathy, intelligence and crime etc. This made me extremely angry, as these things did not reflect the person I knew.
Did you know that the media produces disproportionately high-profile coverage for rarecriminal offences involving autism? For example, a 2021 headline read, “Autistic boy killed baby brother”. It is articles like this which contribute to the erroneous belief that there is a link between autism and offending.
Learning about the misconceptions that the public had about autism led me to writing a university paper for my eyewitness psychology module entitled ‘Autism and Police Interviewing’.The paper explored the different language and social communication difficulties which autistic people can experience, which can make it challenging to obtain relevant information from them in a standard police interview?
I found that the more I looked into autism, the angrier it made me that autistic people were being unfairly criminalised and punished for their atypical understanding in police interviews and in court.
However, it was not until my third year at university when I took a “Crime and the Criminal Justice System” module that I learnt about intermediaries. It became clear to me at this point, that an intermediary (whatever that meant to me at the time) was someone that my brother would need if he ever found himself in that situation. However, at this point, the research on intermediaries was only in relation to child witnesses and said nothing about adults, defendants or respondents. Although my brother is not a child, I knew that his autistic characteristics and atypical understanding would mean he would struggle in cross-examination, and I knew he would not understand how the court system works.
It was only after I graduated from university that I learnt about intermediaries in relation to defendants and respondents. I had been working in a rather boring accounts job for nearly two years and felt unfulfilled. I did not feel like I was making a difference or in a field of work I wanted to be in.
One of my close friends from university started working for Communicourt a short time after we graduated, and I learnt about all the wonderful things she was doing to make a difference to many vulnerable people in the legal system. I found myself lying awake at night thinking about that young woman at university, wanting to help people like my little brother. It was then that I decided to take a leap of faith – and the rest is history.
Now I work with people with communications difficulties just like my brother every day, using many of the skills I developed in childhood, at work. I am proud of the difference that I am making to our service users’ lives, and that I get to be a part of what is one of the most stressful and demanding moments in their lives. I am proud of the work that Communicourt do every day, and above all, I am proud of what my brother has been teaching me all my life.
Further reading
Brewer, N., Zoanetti, J., & Young, R. L. (2017). The influence of media suggestions about links between criminality and autism spectrum disorder. Autism, 21(1), 117–121. https://doi.org/10.1177/1362361316632097
Slavny-Cross, R., Allison, C., Griffiths, S., & Baron-Cohen, S. (2022). Autism and the criminal justice system: An analysis of 93 cases. Autism Research, 15( 5), 904– 914. https://doi.org/10.1002/aur.2690
The 10th December 2022 is Human Rights Day, the anniversary of the creation of the Universal Declaration of Human Rights. This declaration is the foundation of the Human Rights Act (1998) which protects the rights of all UK citizens, ensuring we are all treated fairly and equally, with dignity and respect. The Act also sets out the responsibilities of those in power to ensure human rights are upheld.
To support and mark this event, Communicourt has signed a letter penned by the British Institute of Human Rights and signed by 156 other organisations. This letter calls on the UK Government to support the Human Rights Act (1998) and raises concerns about plans to replace the Act with a new “Bill of Rights”.
The British Institute of Human Rights is concerned that replacing the Human Rights Act (1998) will erode human rights in the UK. This is particularly concerning given the current cost of living crisis, which is forcing more and more people into instability, deprivation and positions of potential vulnerability.
We support the British Institute of Human Right’s message that “that human rights are never relative and must always be upheld as what unites all of humanity” and that the Government must uphold the Human Rights Act (1998).
Each of the 16 articles of the Human Rights Act (1998) apply to all of our services users. However, Article 6 (The Right to a Fair Trial) and Article 14 (The Right to Non-Discrimination) are particularly intertwined with the work we do as intermediaries.
Article 6: The Right to a Fair Trial
As intermediaries, we work to ensure that Communicourt’s service users can participate fully in their trial or hearing. Although the Article doesn’t directly reference the use of intermediaries, Part 3 is especially relevant to our role. Among other rules, it stipulates that every person has the right to:
Be informed promptly, in a language which they understand and in detail, of the nature and cause of the accusation against them.
Have adequate time and facilities to prepare their defence.
Have the free assistance of an interpreter if they cannot understand or speak the language used in court.
For some people facing trial, the use of an intermediary is essential to protecting the above rights. In fact, M (A Child) (2012): Court of Appeal found a breach of the right to a fair trial after the respondent Father in the case was not given the support of an intermediary.
An intermediary can explore a defendant’s unique communication profile, make recommendations to ensure their understanding of the case against them and implement bespoke measures to assist them to:
Prepare their defence (if the intermediary is allocated to attend conferences prior to trial, they can support the individual to express their views and accounts to their legal representative, understand legal advice and give clear instructions).
Understand the accusation against them (e.g. by simplifying language, using visual aids to explain complex concepts and implementing other strategies to support the individual’s specific communication needs to improve their participation).
Provide information about the case “in a language they understand” (e.g. by simplifying legal terminology or creating easy read documents about the case).
Article 14: The Right to Non-Discrimination
This right can be described as a ‘piggy-back’ or conjunctive right. This means that it operates in conjunction with other rights, rather than serving as a right in isolation.
Discrimination means that you are treated less favourably than another person in a similar situation, because of a characteristic you have. For example, an individual with a learning disability should not have their Right to a Fair Trial adversely impacted because they have greater difficulty following and understanding proceedings. Instead, their Right to Non-Discrimination should be protected by the implementation of measures to ensure they are supported to participate effectively in legal proceedings.
We support the Human Rights Act (1998)
We stand with the British Institute of Human Rights in calling on Government to retain the Human Rights Act (1998). To learn more about the proposed replacement Bill of Rights and why this shift is cause for concern, read more online and follow @BHIR on Twitter.
I remember reading the job advert for the role at Communicourt on the Royal College of Speech and Language Therapist’s website on their job bulletin board. It felt like something just ‘clicked’, like I had found it. It was a role that involved working with people (tick), in any major city (tick), getting to travel around the UK (tick), and being a part of the fascinating courtroom environment (major tick). At that time, I was in a job I didn’t really enjoy, newly graduated, living with my parents and missing the independence of the life I had had pre-pandemic.
The long and winding road…
My path to this post was by no means linear, and although I’ve previously felt embarrassed about this, I now see that a story with twists and turns tends to be much more exciting. I first heard about speech and language therapy when I was doing my A levels. I loved the concept of the career. At this time, I was studying both German and Biology and I felt that speech therapy combined my love of science and languages perfectly.
The indecisive part of my personality got the better of me though, and I decided to keep my options open, doing a broader degree in the knowledge that I could do a speech therapy masters later on, if I fancied it. As a result, I embarked on a very fun four years at Cardiff University during which, I spent time abroad in Germany, Munich and Heidelberg.
Living in a language bubble
Learning a language will humble you. As native English speakers, many of us can waltz through life – visiting exotic destinations, sure in the knowledge that if we should shout ‘help’, someone will understand us. Being in another country and trying to speak their language tested me in so many ways, but most of all, it allowed me to appreciate how it feels to be on the outside of the bubble, looking in.
I distinctly remember one very confused look I got from a professor during class I was taking, as I struggled to string together a coherent sentence that explained my point. It was clear I had not succeeded. As time went on and my linguistic abilities in German grew, I felt more confident in expressing myself and understanding what people were saying to me. I was finally inside the bubble!
Until that moment, however, I had felt a sense of loneliness. I felt nervous about the simplest things like asking for a bag with my shopping or buying a ticket on the bus. It’s these experiences that remind me of how important our role is. We are there to break down the (often convoluted and complex) language of the courtroom to ensure that our service users are inside the ‘bubble’ too.
Working with communication difficulties
When I left university, I started to think about speech therapy again and so decided to work in a school with autistic students, as well as students with Developmental Language Disorder (DLD). We had a variety of pupils with different needs, from children who only communicated using PECS boards (symbol boards) to children that could tell you all about their weekend but really struggled to play and socially interact with their peers.
I worked closely with the speech therapists in the school, participating in their therapy sessions and implementing the programmes for the children. It was through this experience that I learned the importance of your tone of voice as well as your body language. Non-verbal communication was almost as important in deescalating situations and communicating effectively as the words I used.
As a result of my experience at the school, I felt I had a skillset that would transfer well to assisting people in the courtroom with their understanding and expression.
Communication and legal proceedings
Whether it’s plot lines in your favourite movie e.g., Romeo not getting the message from Juliet that she wasn’t really dead, or resolving family squabbles, I find that communication is the culprit time after time.
Mix-ups and miscommunications can cause a whole host of issues not least of all when it comes to understanding the law. The courtroom is where we, as practitioners, most often see the potential for breakdowns in communication, then we swoop in with something like a visual aid to save the day! Whether it’s breaking down what a Special Guardianship Order actually entails or what the judge means when they talk about ‘the Lucas direction’, our role is centred around effective expressive and receptive language skills, in a setting where the potential for confusion is great.
This is what drives me each day as an Intermediary. This thing we call ‘language’ is taken for granted so often. When communication comes easily to us, without much consideration, we can sail through interactions without a second thought to how it might be for someone who is struggling to understand or express themselves.
Making a difference
It has been incredible to see the difference our role makes to the lives of our service users first hand. I have walked away countless times thinking, if they hadn’t had an intermediary, that would have been really difficult for them. A particular experience stands out to me. This is something my mind drags up whenever I’m having a low confidence day:
I met Amy* in Birmingham with her solicitor, who needed to get her statement ready and written by the end of the day. Amy was very shy on first meeting and had learning difficulties. At lightening speed, her barrister explained what he wanted to get it done in the meeting, then asked the dreaded question – “Do you understand?”. Amy nodded her head. I was not convinced.
I asked her what the plan was for the day, and she turned to me and shook her head, “I don’t know”. I broke each point down and used gestures to assist her understanding. When I asked her again what the plan was, she was able to explain it in her own words.
We all took some deep breaths and, devising a visual timeline, we broke down what had happened over the past 15 years. Like many of our service users, Amy had been through a great deal. Walking back towards the train station, I thought about how differently the meeting might have gone if there was no one to draw visual aids to assist her understanding, if no one had asked the barrister to take it a bit slower, if no one had explained the many meanings of ‘financial abuse’ in simple terms.
I’m proud that this role allows us to uphold the human rights of an individual in our society. The court system is an overwhelming and confusing labyrinth, even for degree-educated people. To ask someone with additional needs to do this without support doesn’t seem just. Being an intermediary means making sure that the playing field is levelled (great figurative language there!) and that everyone in the courtroom feels as though they’re inside that imaginary bubble.
*Names, details and locations have been changed to protect confidentiality
International Stress Awareness Week is a chance to explore ways to recognise, manage and reduce stress. Stress is a normal part of life but, in some cases, it can have a profoundly negative impact, resulting in feelings of hopelessness and an inability to cope. Although acute manifestations of stress can be a prompt which forces us to look more closely at the causes of stress in our lives, stress at any level should not be ignored, as its effects can be low-level but cumulative.
This post will outline what stress actually is, how it can affect individuals, how it can impact communication and how it can be managed in the courtroom to minimise its impact on court users.
Stress at court
There are no two ways about it – court is stressful. It’s often an unfamiliar and strange environment, where difficult topics with serious consequences are discussed and emotions understandably run high. To ensure effective participation, it is essential that defendants, respondents, appellants and other court users understand their case and are able to articulate their position. Unfortunately, stress often significantly impacts a person’s ability to communicate.
Our role, as intermediaries, is to provide communication support for court users who have identified communication needs, but it is important to remember that stress can negatively affect anyone’s communication skills. For court users with existing communication difficulties, however, the impact of stress can be magnified and could further hinder their ability to communicate effectively during proceedings.
What is stress?
Stress is how we react to something that is currently happening, it often makes us feel ‘under pressure’ and usually occurs when we feel we cannot control a situation. It can lead someone to feel anxious, irritable, confused or overwhelmed.
Stress can manifest itself through physical symptoms such as muscle tightness, rapid breathing, a flushed face and an increased heart rate. But it can also affect mental health and someone’s ability to communicate, as they may have racing thoughts making it difficult to process information and stay focused.
How does stress affect communication?
When we experience heightened stress, there is likely to be a negative impact on our communication skills. Many people have a ‘rabbit in the headlight’ type experience which can lead to confusion. Someone who is stressed may become frustrated more easily and, when emotions are heightened, an individual may find it challenging to communicate, both in terms of expressing themselves and in terms of their understanding.
People respond to stress in different ways; some people may decide to disengage from communication when feeling high levels of stress. This can create a barrier between the individual and the help and support they may have otherwise benefitted from. In a legal setting, someone feeling stressed may stop engaging with their solicitor or may even not turn up to court. When feeling stressed, people may have a ‘fight’, ‘flight’, ‘freeze’ or ‘faun’ response (learn more about these presentations here) and it’s important to remember that everyone will respond to stress differently. Additionally, if someone is feeling stressed, they are more likely to miss information as their ability to concentrate will be affected. If someone has not taken in and retained information, they may struggle to communicate, as they may not have understood the key points of the discussion.
Managing stress in the courtroom
The courtroom is a stressful environment and therefore effective communication can be challenging to achieve. However, in this setting, clear communication is vital. It is important that everyone has the opportunity to explain their side of the story and understand the position and evidence of others involved in the case.
In the courtroom, there will be some stress-inducing factors which simply can’t be alleviated. However, it’s important to identify the things that are within the court’s control, which can be addressed.
There are a number of ways to try to reduce stress within the formal court environment:
Introductions Introductions can go a long way to helping someone feel more at ease. A court user is often met with lots of new faces on their first day at a trial or hearing. In many cases, they have never even met their barrister face-to-face before. It is helpful when a representative from each party (e.g., the prosecution barrister or counsel for the Local Authority) introduces themselves to the court user prior to the case commencing. This helps the individual to feel more comfortable and also helps their understanding once in court, as they know who is speaking on behalf of whom.
Familiarisation visits A quick visit to the courtroom to have a look around, see where everyone will be sitting and get a general ‘feel’ for the room can really help an individual feel less stressed before their trial or hearing begins.
Fidget objects Fidget objects are great tools to help someone stay focused and calm, even in times of stress. This could be anything from a tangle toy, stress ball or even a pen and paper to doodle with. An intermediary can provide an appropriate tool to aid emotional regulation and ability to attend to the proceedings.
Book a conference room Courts are busy places, often it can be hard to find a quiet space to take a breather and gather thoughts. If a conference room can be booked within the court building, this can help reduce the stress of searching for a space to have a private discussion. It can additionally provide a place to rest before returning to the courtroom, the court user may want to do some puzzles or listen to music to ‘take a break’ from thinking about emotive topics. Additionally, it can be useful to have a room booked to avoid bumping into other parties in the case, which can significantly increase stress in certain cases.
Practice in the witness box Giving evidence is often the part of proceedings which court users are most stressed about – and understandably so. They are expected to stand in court, in front of strangers, and answer questions for a significant period of time (days in some cases).
A defendant in a criminal court must choose whether they wish to answer questions. If they are feeling immense stress, a flight or fight response may be triggered. The stress associated with giving evidence in court may lead someone to avoid giving evidence, despite the negative impact it could have for their case. Stress-minimising steps should be taken, where needed, to help court users feel able to make the appropriate decision for their case.
Practicing in the witness box and answering neutral questions such as, “What did you have for breakfast?” can go a long way towards helping someone feel more at ease. This is also a great time to practice reading the oath and get used to the setting in which they will later give evidence. When it comes to the real deal, they will know where to stand, what the view of the court will look like and be ready to take the oath. These steps can mean the process doesn’t feel quite so unusual and daunting.
Video-link or screens A video-link in court allows people to give evidence from a remote location. They will appear on-screen in the courtroom. A camera in the court will allow them to see the other parties. A video-link can help someone feel less stressed as they are somewhat shielded from the intense pressure of the courtroom.
Some people also ask to use screens around the witness box to prevent them from having to see other parties whilst giving evidence. Stress can affect the quantity and quality of communication and therefore, making sure court users feel as comfortable as possible whilst giving evidence ensures they can give their best evidence – which is of benefit both to themselves and the court.
Allow processing time Lots of detailed information can be discussed in a short space of time in the courtroom, often using specialised vocabulary and complex grammar. It can be hard to keep up with the pace and maintain focus. It is important that court users have plenty of time to process legal discussions, evidence and questions put to them. They should be reminded that, if they don’t understand a question, it is not their fault, and they should ask for the barrister or judge to repeat the question in a different way. They should also be told that they can ask for a break if and when they require one, have water whenever they want and take time to consider their answer before responding. It is always helpful if those in the courtroom speak at a slower pace than usual to support one’s ability to digest the information being discussed.
Regular breaks Taking breaks is important to allow an opportunity to emotionally reregulate and manage stress. Breaks allow a person to rest, which can support their attention and emotional state when they return to the courtroom. Breaks throughout the court day can support someone’s wellbeing and increase their ability to focus on the proceedings. They can also help court users to consolidate the evidence, as when someone takes a break, they are having a chance to review and discuss the information (with appropriate people), helping them to better retain the content of proceedings. It’s also the perfect time for legal representatives to answer any questions the court user may have had, which could not be answered within the courtroom.
An intermediary Intermediaries can facilitate communication between court users and the court. Intermediaries will use their expertise in communication to explore an individual’s communication strengths and difficulties, then suggest ways to assist their communication during proceedings, if needed. It is important to note, however, that an intermediary will only be recommended or allocated in cases where the court user has an existing communication difficulty.
If someone is feeling stressed, they are likely to struggle to concentrate, this may mean they miss key information. An intermediary will whisper to the court user during hearings to ensure they understand what is being said. An intermediary may also make simple notes for the individual and re-cap the key evidence in breaks with the court user and their legal team.
Just the presence of an intermediary can help the court user feel less stressed, as they have someone to sit next to them in court and answer questions they may have throughout the day. An intermediary will monitor their stress levels and call for breaks (when necessary) and provide recommendations to the court about how to best assist.
Listen Talk to the court user. They may have their own strategies which they use in day-to-day life which help them manage stress. Everyone has their own ways of coping, and it may be that the court user already has some good tools they use to help them de-stress. Have an open conversation about what would be beneficial and see if they have any ideas of their own.
Stress has a big impact on communication. Communication difficulties with understanding and/or expressing oneself can have serious implications during court proceedings. Mitigating the impact of stress, where possible, is an important step towards improving understanding and assisting court users to participate in their trial or hearing effectively.
Get involved with Stress Awareness Week using the hashtag #StressAwarenessWeek from 7th-13th November 2022.
N.B. This article is of most relevance to court users with mild to moderate hearing loss, rather than d/Deaf court users who may have severe or profound hearing loss and who may require a BSL (British Sign Language) interpreter or lip-speaker. The Advocate’s Gateway Toolkit 11: “Planning to question someone who is deaf”, is a valuable source of information for those working with a d/Deaf defendant or respondent in legal proceedings.
The Royal National Institute for Deaf People (RNID) estimates that “in the UK, more than 40% of people over 50 years old have hearing loss, rising to more than 70% of people over the age of 70.”.
With hearing loss affecting such a large percentage of the population, it’s a pressing issue when it comes to communication at court. Hearing loss poses a particular barrier to accessing the contents of trials and hearings. When an individual has a mild or moderate hearing loss, they may not hear all of the verbal information presented during a case and may be required to exert additional attention in order to access the contents of proceedings.
When an individual has both hearing loss and a communication difficulty, ensuring effective access to proceedings can become even more challenging. Such individuals may have greater difficulty advocating for themselves to ensure their hearing loss is effectively accommodated, their attention may be further adversely impacted, or they may be unable to utilise alternative strategies to mitigate their hearing loss (for example, reading written notes).
In some cases, a defendant or respondent may be given access to a hearing loop or Infrared hearing system. Both function in a similar way, offering two main options for accessing amplification of the environment:
A device worn around the neck connecting hearing aids to the system when the aid is set to “T”.
A headphone set for users who do not have hearing aids.
A judge’s experience of court hearing loops
The former judge, HH Gordon Risius, lost most of his hearing following a head injury. This interesting article explores his experience of using courtroom hearing loops, and the implementation of a more advanced system in his courtroom to ensure his effective access to proceedings. He explained, “the typical loop system uses a single small microphone, designed to pick up sounds from the court-room generally, not just the voice of whoever happens to be speaking at the time. In consequence it can radiate such a multiplicity of sounds that an accurate note of the evidence or submissions is impossible”.
In this judge’s experience, the standard court hearing loop system did not allow him to hear evidence accurately. This view reflects the experience of many defendants and respondents I have assisted during court proceedings. HH Risius noted, “The loop system undoubtedly helps those with mild hearing loss, but does little for those whose hearing is more seriously affected. There is a practical solution, encouraged by the Disability Discrimination Act 1995, but it is expensive for the public purse…”.
Out of the loop: Issues with courtroom systems
HH Risius’s view is echoed by many defendants and respondents I have worked with. For example, I recently assessed a service user who required hearing aids to make use of his limited residual hearing. Speaking about his experience in the courtroom, he reported, “They have the… the… [gesture, pause] loop, hearing loop, but sometimes the loop doesn’t work. They were speaking very fast, I couldn’t understand anything”.
In an intermediary role, I have often seen hearing loops treated as a silver bullet, which magically ensures access to proceedings for those with a hearing loss. When they work well, loops can be helpful. However, at their worst, I have observed hearing loops to be painful, distracting and emotionally dysregulating. In some cases, they actively negatively impact the service user’s ability to follow the thrust of evidence, engage with proceedings, engage with their intermediary and understand the contents of hearings.
Case Study
I assisted a service user during a Crown Court hearing. He had a hearing impairment but did not use hearing aids. In conversation, in a quiet conference room, he required communication partners to speak very loudly, one at a time, ensuring they were facing him to allow him to support his hearing with facial expression and body language. The service user was also diagnosed with a mild learning disability, a large number of physical health conditions and several mental health conditions. He reported that he often heard voices, an experience which worsened when he became emotionally dysregulated.
At the hearing, the service user was provided with a hearing loop. The device was connected to headphones he could wear, which amplified the sounds in the courtroom. The device was tested before the judge entered and was set to a comfortable volume. When the hearing began, however, the prosecution barrister began to speak remotely via a CVP link. This caused the hearing loop to generate considerable feedback, resulting in a very loud squealing sound which caused the, already highly anxious, service user considerable discomfort and alarm.
The difficulty was raised with the judge. As no immediately available solution could be found, the judge decided that the hearing would have to proceed regardless. The feedback persisted, causing further discomfort and distress. Eventually, the service user elected to stop using the hearing loop.
To assist the service user, the judge permitted me to recap key points from conversations very briefly and loudly while facing him, during pauses in proceedings. As the service user had low literacy, it was not possible to implement other strategies to assist him, such as typing the contents of the hearing in a large font on a laptop screen or taking simple notes in his view. The limited strategies available meant that the service user became increasingly anxious and emotionally dysregulated, as he could not hear what the legal professionals were saying. He was instead wholly reliant upon my very brief, simplified summaries. While the legal professionals spoke, he repeatedly asked me, “Am I going to prison?”. Following the hearing, he reported that the hearing loop feedback had made the “voices worse”.
I have attended many hearings where hearing loops have proven ineffective, particularly where feedback has impacted their use. But feedback isn’t the only issue which impacts the usefulness of hearing loops. Typically connected to just one microphone in the courtroom, the hearing loop picks up every sound, from the feverish typing of notes to the busy shuffling of papers. These background noises all impact the audibility of speech sounds when listening via hearing loop and can be a particular issue for service users with attention difficulties or sensory sensitivities.
In other cases, the type of hearing equipment available impacts individuals’ access to proceedings. This anonymous account, published on deaf blog The Limping Chicken, reports that, upon attending a family court hearing, a respondent with severe hearing loss was provided with unsuitable equipment (an infrared receiver with earbuds) which would require them to remove the hearing aids they were dependant upon to hear. This individual explained, “There was no ‘plan B’. I was just told I could ask for things to ‘be repeated’”.
A recent written question submitted to UK Parliament in June 2022 requested “a list Crown Courts in England and Wales (a) with (b) without an operational hearing loop”:
69 Crown Courts were “confirmed to have operational hearing loops”.
19 Crown Courts were “not confirmed to have operational hearing loops”.
The response added, “The Crown Court locations which were not reported to have hearing loops on site may still have facilities available or be able to make reasonable adjustments to help users who need hearing equipment. Some of the hearing loop equipment used by HMCTS is portable and can be moved between Crown Court sites…”.
Practical measures
It is important not to throw the baby out with the bathwater. When they work well, hearing loops undoubtedly assist some court users with mild and moderate hearing loss. They are an essential tool to help improve access to legal proceedings.
However, issues with provision of a range of equipment and technical problems with the available equipment appear to result in poor outcomes for those with hearing loss. In some cases, a hearing loop can even be detrimental to an individual’s ability to follow proceedings, by causing distraction, distress, or by providing a smokescreen which masks the individual’s difficulties (many court professionals may assume that a court user can hear and understand everyone once a hearing loop is implemented).
It’s also important to bear in mind that a person with a hearing loss who is assisted by an intermediary is likely to have difficulty hearing the intermediary while using a hearing loop. They may need to take off the hearing loop in order to hear the intermediary, while intervention from the intermediary may prevent them from hearing the signal from the loop as clearly. As such, intermediaries may need to focus more on assistance outside the courtroom, in conferences, to support the service user’s understanding.
When working with a court user who requires a hearing loop, the following measures may assist:
Learn more about the individual’s hearing Do they use a hearing aid? Do they know how to connect to a hearing loop? Have they used one at court before? What was their experience? How much can they hear with a hearing loop? All of this information can help the court to prepare in advance to accommodate a court user’s needs (for example, by ensuring wireless infrared access to the hearing loop system is available).
Avoid hybrid hearings Remote attendance by some parties can result in feedback for hearing loop users.
Trial the equipment in advance Ideally with the service user present. This will help ensure the volume is set to a comfortable level. It may assist for a ‘helper’ to speak from key locations in the courtroom (e.g. the judge’s seat, the prosecution bench), to ascertain what volume will be required and to acclimatise the service user to how the loop will sound.
Provide a mechanism for the individual to signal if in difficulty This should be agreed with the judge and explained to the individual in advance. The defendant or respondent could hold up a card or use a signal to indicate they are unable to hear. Be aware that they may find raising the issue intimidating, especially if required to speak during proceedings.
Minimise background noise All efforts should be made to reduce background noise, which may be picked up by the hearing system. Measures could include, turning of the microphones of parties attending remotely or encouraging advocates to use digital rather than paper bundles (which cause considerable rustling).
Consider seating position Being able to see the face of each speaker provides additional visual information (e.g. facial expression and mouth shape), which can support individuals with hearing loss to understand speech more clearly.
Use a ‘hearing rating’ system An intermediary can monitor a service user’s ability to hear by encouraging them to use a visual self-rating scale. The intermediary can then raise any issues with the court, and/or take a particularly careful note of verbal information raised while the individual is struggling to hear, to be recapped in conference.
Allow longer conferences and breaks For the individual’s legal team to carefully check their understanding of key points to ensure nothing has been missed or misheard. If the individual has an intermediary, they may not be able to access simplification and explanation during the hearing itself. As such, additional time may be required for this during breaks and conferences. Bear in mind that listening to court proceedings with hearing loss via a hearing loop is very likely to place additional demands on any individual’s attention, which may have a cumulative effect over the course of a day, resulting in fatigue and inattention.
Provide a clear written note For court users with appropriate literacy skills, a clear written note of the day’s key points will help ensure important information is accessible and important information has not been misheard.
Provide a live typed or written note of proceedings in sight of the service user (dependant upon their literacy level).
Use visual aids to support the service user’s understanding, e.g. drawing out a sequence of events.
Permit an intermediary to provide frequent loud summaries of what is being discussed, facing the service user.
Permit the service user and intermediary to attend remotely from a different room. This will allow the intermediary to provide loud, real-time simplification of proceedings in a quieter, one-to-one listening environment.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.
As intermediaries, our working lives are very varied. One day we can be administering assessments, the next we are whispering explanations in court and advising barristers about changes to question style prior to cross-examination. One part of our job that is a little less well-known is assisting during conferences.
As any time-poor solicitor will know, there is a mountain of preparation to undertake before a case actually gets to court. Information gathering sessions must take place to help solicitors build the case, defendants and respondents have to tell the court what they think of certain evidence, advocates will need to provide legal advice and take instructions. Conferences also need to take place during court hearings themselves, for example, to allow counsel to take instructions on a new issue which has arisen, or to explain a judges’ ruling.
For quick tips to help you support a client with communication difficulties in conference, download our two-page guide from The Access Brief, a library of free resources for legal professionals, developed by experienced intermediaries.
Communication difficulties in conferences
These conferences can be every bit as challenging for individuals with communication needs as formal court hearings. Conferences often place considerable demands upon someone’s ability to understand verbal information, express themselves clearly, manage their emotions and maintain attention. There may be complex legal concepts to explain, emotive information to discuss, lengthy documents to review and large volumes of evidence to explore.
In many cases, an individual’s ability to understand and communicate clearly in conferences preceding the start of a trial is even more critical than their understanding in a court hearing. When accounts, information and instructions are provided clearly, the risk of miscommunication is minimised, and clients are more likely to understand the process and have realistic expectations of the proceedings. Legal representatives, meanwhile, are more likely to be able to advocate clearly for their client. This often improves the smooth-running of proceedings, reducing adjournments, issues in working relationships and last-minute changes in instructions.
Intermediaries in conferences
Defendants and respondents with communication difficulties often benefit from having an intermediary present in conferences. This case study from my own practice is an illustration of this:
Case study 1: I assisted a father involved in care proceedings who had attended a number of conferences with his solicitor in advance of a fact find hearing without an intermediary present. The solicitor believed they had an excellent rapport and a good understanding of each other. When the case got to court however, it was clear that the respondent’s position statement and his response to threshold were inaccurate. He actively and adamantly denied a number of things he had previously agreed.
For this reason, the judge adjourned the case and ruled a conference with an intermediary must take place before the next hearing. He was an approachable judge, but even he was displeased that considerable time had been lost and that serious misunderstandings had arisen.
On the day of the conference, it became clear where the communication breakdown had occurred. The solicitor had read the threshold to his client as it was written, page by page. The respondent had difficulty understanding more complicated vocabulary (e.g. “compliance” and “disengaged”) and remembering large chunks of information. As such, he had simply agreed to everything the solicitor read out. I went through the threshold step-by-step with him, simplifying each point as I went. With this support, he was able to give precise instructions, including telling us when dates were just a couple of days’ off. As a result, his legal team gained a much clearer and more coherent response from him.
The solicitor was a little disheartened after the respondent left, telling me she had thought they got along really well. I explained that it was clear that they did have a good rapport, but often communication difficulties cannot be overcome with positive rapport alone. In fact, it can be particularly hard to recognise communication needs in everyday conversation (especially if an individual has good social communication skills).
An intermediary’s perspective
Many intermediaries I have spoken to have said they enjoy assisting at conferences. The setting is more informal than court and we don’t feel quite so disruptive when intervention is required. The service user is often more relaxed and, when they have someone there to help them understand, they are more likely to seek that help in the informal environment of a conference than under the weight of a court hearing.
In conferences, we often have the opportunity to try a wider range of strategies to assist a service user’s understanding; from visual aids to interactive tasks. This allows intermediaries to develop the most effective possible working relationship with a service user before a hearing takes place.
Case study 2: One service user I worked with was adamant that she wanted to take her case in a certain direction. The solicitor was worried that the client hadn’t understood the options clearly, and I could understand why. The service user would listen to the solicitor’s advice and then immediately restate her previous view. This difficulty appeared to relate to the hypothetical nature of the discussion (e.g., if we do this, then this might happen, so we can ask for this). This required her to hold lots of abstract verbal information in mind and was hard to follow. To assist, I drew a flow chart detailing all the options and possible outcomes. The service user began to ask questions about each route. A visual representation helped her to understand and retain the different options, then weigh the potential benefits and downsides of each. In response, the service user changed her approach slightly and agreed that the new approach was more child-focussed.
Booking an intermediary for a conference
Even when solicitors have a positive rapport with their clients, an intermediary can support effective communication in conferences, and this often has a knock-on positive effect in court too. But how do you go about booking an intermediary for a conference?
Funding Firstly, you will need funding:
In family court, HMCTS can fund a conference. In some cases, a court may be unwilling to provide funding, and Legal Aid or the Local Authority may need to be approached to fund intermediary provision.
In criminal proceedings, Legal Aid typically fund conferences.
Assessment If your client has not yet had an intermediary assessment, this will need to be arranged before a conference with an intermediary can be booked. If the ensuing intermediary report recommend an intermediary, arrangements can be made for an intermediary to attend conferences with your client.
Booking Once the assessment is complete and the report has been sent to the solicitors, a booking for the relevant dates can be made through Communicourt’s online portal. You will then receive a booking form that needs to be filled out and signed by court personnel (family court) or the solicitor (criminal court). This then needs to be returned to Communicourt and an intermediary will be allocated.
The legal process in its entirety is confusing and hard to understand for any non-legal professional. Many people with communication difficulties need help at every stage, including in legal conferences, in order to make informed decisions and to participate as fully as possible.
For more information about intermediary assistance in legal conferences, or for advice on funding and booking an intermediary for a conference, please contact the Communicourt bookings team.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.
I recently attended a conference with a defendant in prison. During the usual lengthy wait to gain entry, I bumped into his barrister who was able to brief me on the purpose of the conference. She shared a document which she wished to take the defendant through, setting out all of the key information he needed to understand, alongside important legal advice.
Time and effort had evidently been invested in making this information as straightforward as possible. The sentences were generally short and key topics were highlighted by helpful subheadings. However, the document ran to eight pages in dense size 11 font, including challenging vocabulary, such as “consecutive” and “recuse”, alongside many complex and abstract concepts.
After reviewing the document, I mentioned to the barrister that, if she provided me with a copy, I could produce an easy read version to be sent to the defendant. She responded, “Well, I’d like to think that it is easy read!”.
The intermediary assessment (conducted previously) found that the defendant had considerable literacy difficulties. Although able to read some simple words with effort, he was unable to read longer or ‘less everyday’ words. His diagnosis of schizophrenia also made it very challenging for him to maintain focus while attempting to read longer text, resulting in further difficulty extracting key points from even simple documents. The document provided by the barrister, although undoubtedly very helpful for a layperson with average literacy skills, would not have meaningfully improved this particular defendant’s access to written information regarding his case.
Why does accessible written information matter?
Ensuring that written information is made as accessible as possible for individuals with communication needs is extremely important:
The Human Rights Act (1998) stipulates that public services, like the courts and care providers, have to ensure individuals’ rights are protected and respected. Within a court setting, Article 6 (Right to a Fair Trial) states that, “Everyone charged with a criminal offence has the following minimum rights: (a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him…” (emphasis author’s own).
Article 21 of The Human Rights Act states that Governments must adopt measures to make sure disabled people can “express their views freely and access information on an equalbasis to everyone else”. There are a number of measures which should be implemented to achieve this, which include producing information in accessible formats in a timely way, at no extra cost to the individual.
The Equality Act (2010) describes a range of protected characteristics, including disability, and measures which must be taken to ensure individuals with these characteristics are treated equally to others who do not. Section 149, for example, concerns the duties of public sector bodies (such as HMCTS), which include “advance[ing] equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”. Public sector institutions must:
“…Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic”.
“Take steps [e.g. make reasonable adjustments] to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it”.
Accessible Information Standard (2016). Although this standard only applies to organisations supplying NHS care or publicly funded adult social care, it contains valuable information regarding providing people who have a disability or sensory loss with accessible documents.
Why is this important at court?
You only need glance at a court bundle (or bundles) to appreciate the extent to which court cases are built on written information. Contact notes from family cases, psychological reports from expert witnesses, care plans produced by written local authorities, non-molestation orders, written agreements – the list of documents crucial to cases of all kinds goes on and on. With so much written information to digest, an individual with difficulty accessing documents may:
Not fully understand the case against them.
Not understand legal advice.
Not have access to detailed information about their case.
Not understand what steps they must take (e.g. attending appointments).
Not understand what the possible outcomes of their case may be.
Not understand the terms of agreements and orders.
Break agreements and orders due to lack of understanding (resulting in further legal issues).
Who needs easy read?
Difficulties accessing written information can take many forms. Dyslexia, low literacy stemming from limited access to education in childhood, learning disability, Attention Deficit Hyperactivity Disorder (ADHD), autism, visual impairment – there are many reasons why an individual may have difficulty accessing information in written form. An individual may have:
Difficulty following written information (letters may jumble, it may be hard to keep your place from line-to-line).
Difficulties reading words (decoding letters and phonemes).
Difficulty understanding words (reduced receptive vocabulary).
Difficulty focusing on written information.
Difficulty ‘reading between the lines’ (drawing inference) from a text.
Difficulty picking out ‘key points’ from a text.
Case Study
I worked with a service user who had diagnoses of mild learning disability, dyslexia and a number of physical and mental health conditions, including a condition which impacted their eyesight. At their intermediary assessment, I found that they were able to read very short words and sentences, with considerable effort, but only when text was large and bold, presented on blue paper.
Before the sentencing hearing, defence counsel emailed me a copy of a Sexual Harm Prevention Order which the court would be making, asking for my assistance in simplifying this for the service user. The order was complex and lengthy, written in small font on white paper. It included very long, low-frequency words (e.g. “encryption”). Complex syntax and long sentences were used, including the phrase: “installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device”.
Example: Simplified Sexual Harm Prevention Order
To simplify the document, I presented text on a blue background in a large, bold font (following the recommendations set out in the intermediary report). I included images to serve as visual prompts, to assist the service user to most easily ‘pick out’ parts of the order they wished to review. The visual prompts were also designed to support the service user’s understanding of each ‘rule’ in the order.
I simplified the text, as far as possible. In some cases, specialist vocabulary (e.g. “encryption software”) was used and simplification wasn’t possible. In these instances, I added a short, simple definition. I used red and green text to make clear what was and was not allowed. I broke the text up with bullet points as far as possible.
It was challenging to simplify the document without adding considerably to its length. As such, some longer words such as “supervising” remained in the text. Having worked with them previously, I was aware that the service user had a supportive friend who attended hearings and assisted them to read documents and process complex information. This friend had strong literacy skills and understood the service user’s needs well. I was confident that they could assist where necessary.
At the hearing, the defence barrister and prosecution barrister reviewed the document with me, providing further suggestions and advice, to ensure all key legal points were included. The defence barrister helpfully provided blue paper, to ensure the document could be printed in the most accessible format. The barristers presented the simplified document to the judge. The judge explained that the text should not be considered an alternative to the original version of the order. Instead, it should be used to supplement the service user’s understanding, however the text contained in the original order would form the basis for the order itself.
The service user had presented as highly anxious about the rules which would affect their life, expressing great concern about accidentally breaking the rules. After reading the order in conference (with assistance from counsel and myself), they were able to demonstrate understanding of each rule. They were provided with a copy to take home and review as necessary, if they required reminders of ‘the rules’.
Top tips for producing easy read documents
Use a two-column table format Just like this one. This makes it easy to add pictures and ensure documents are not visually cluttered.
Use headings and bullet points This makes it easier for readers to pick out key points and process information.
Add images This makes it easier for readers to pick out information and can support their understanding of adjacent text. Only add images with a clear meaning. If a point doesn’t lend itself to pictorial representation, don’t use a loosely-connected image which may cause confusion.
Use simple words If low-frequency words can’t be avoided, add a simple definition below. For example: Low-frequency means words which aren’t used very much. They might be more difficult to understand.
Use short sentences A Communicourt intermediary report will include information about the service user’s key word level. Although this relates to auditory working memory capacity, it can be a good benchmark when simplifying text. For example, if a service user has a four key word level, try to keep your sentences at this length. It is often helpful to imagine writing in bullet points.
Ask the service user what helps them to read Possible adaptations might include: Using a coloured overlay (if they are dyslexic).Presenting documents in a large, bold font.Using widely spaced text.Reducing documents to no more than one page.
Ask an intermediary! With sufficient preparation time, the intermediary assigned to a service user can often produce easy read versions of key documents.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.
In some instances, sources cited in this article refer to women. However, menopause is a condition which impacts people of all genders. The issues explored in this article may also impact transgender people, non-binary people and others, who are an important part of this conversation.
At Communicourt, we are celebrating World Menopause Day and opening up the conversation about menopause in the workplace. As part of The RCI Group, we have taken the Menopause Workplace Pledge and hosted an awareness session for colleagues, by Emma Persand of Working with the Menopause, about the impact of menopause upon our working lives. The RCI Group is also introducing a new group-wide menopause policy to support people at work.
Rarely discussed in our professional lives, menopause is a significant life transition and physical change which will affect 51% of the UK population. The recently published House of Commons Committee Report ‘Menopause and the workplace’ has collated a wealth of information which illustrates the importance of more open discussion about the topic:
3 in 5 women experiencing menopause were negatively affected at work (CIPD, 2019).
900,000 women in the UK had left their jobs because of symptoms relating to menopause (BUPA, 2021).
Less than a third of people experiencing menopause told anyone at work, citing privacy and the reactions of others as key reasons for this (Women and Equalities Committee, 2022).
Over 25% of people who did not request adjustments for menopausal symptoms did not do so because they were “worried about the reaction” (Women and Equalities Committee, 2022).
14 million working days per year in the UK are lost due to menopause and related symptoms (Health and Her, 2021).
These statistics paint a clear picture of the impact which lack of understanding and adaptations around menopause has on individuals, workplaces and the economy as a whole. Evidently this is a health issue which can have a marked impact on people’s ability to work without adaptations, yet which few people feel comfortable raising in a workplace setting. As such, workplaces are losing valuable, experienced staff members. These are often people who offer years of expertise and perform vital functions such as mentor and role model to more junior employees.
Destigmatising hormonal change
Bringing conversations and understanding about the menopause into the workplace is clearly an important task. When workplace cultures understand the potential impacts of menopause (and become aware of the adjustments which are likely to support menopausal employees), organisations can start to retain more senior staff.
Open dialogue about menopause at work also encourages important conversations about the effects of other hormonal changes which may affect employees, including pregnancy and the use of hormones for processes like IVF or gender confirmation. Other health conditions which impact women, transmen and non-binary people, such as endometriosis, can also become part of this wider conversation about better support and inclusion.
Menopause in the workplace: The facts
When does menopause happen?
Menopause typically occurs between 45 and 55 years of age.
In 1% of cases, premature menopause takes place before the age of 40.
Perimenopause takes place before periods stop (menopause). During this time, menopausal symptoms can occur, lasting for months or (in some cases) years.
After menopause (the total cessation of periods) menopausal symptoms last for around four years after periods stop. In some cases, the symptoms last longer.
What are the most common symptoms of menopause?
Hot flushes and night sweats.
Disturbed sleep and sleep difficulties.
Vaginal discomfort.
Mood changes, including increased anxiety and low mood.
Memory and concentration difficulties.
Headaches.
Heart palpitations.
Joint stiffness, aches and pains.
Reduced muscle mass.
Recurrent urinary tract infections (UTIs).
Reduced libido.
Bone strength (increased risk of osteoporosis).
Increased vulnerability to heart disease and stroke.
How can menopausal symptoms impact people at work?
65% of survey respondents reported problems with concentration.
58% said they felt more stressed.
52% reported feeling less patient when working with clients and colleagues.
30% reported taking sick leave due to menopausal symptoms.
5 ways workplaces can support menopausal employees
Normalise conversations about menopause and hormonal changes in the workplace by participating in events like Menopause Awareness Day, setting up a regular employee support group and sharing information.
Allow flexibility around the working day. Some menopausal people may have sleep difficulties which may impact their work in the morning. Others may feel more physically comfortable working from home.
Provide desk fans or adapt office seating plans to make individuals experiencing hot flushes more comfortable.
Allow more frequent comfort breaks.
Allow alterations to workplace uniforms to increase comfort.
Does my client need an intermediary? How can intermediary help at a parole hearing? What are ‘questions in advance’? If you have a question about communication difficulties and court proceedings, you will find the answer in The Access Brief, a new resource created by Communicourt.
Extract: ‘Identifying communication needs’, a new guide from The Access Brief
The Access Brief is a library of free, downloadable factsheets for legal professionals working with someone who has a communication need. Created by experienced intermediaries, The Access Brief provides essential information about all aspects of communication difficulty in the courts.
The purpose of this new resource is to share up-to-date information about the courts and communication needs with solicitors, barristers, parole officers and other court professionals.
The Access Brief can be used as a ‘go to’ reference for quick questions about intermediaries, or an in-depth resource to improve understanding of the impact of communication difficulties at court. Whether you are concerned about the communication skills of a new client, or have booked an intermediary for a client’s hearing and want to advise them about what to expect, The Access Brief offers valuable advice and information in short, easy-to-digest guides.
The ‘court process’ collection
This week, the first collection of 19 guides was launched. These guides provide ‘at a glance’ information about the fundamentals of working with an individual who has a communication difficulty in the court system. This collection includes information about:
These guides explain how intermediaries can assist at different stages of court proceedings. They also include practical information about requesting intermediaries and assisting clients with communication needs, from initial conference to final hearing.
Coming soon: The ‘diagnoses’ collection
Over the coming month, a further set of guides will be published, sharing information about the common court communication needs of people with a learning disability, autism, Attention Deficit Hyperactivity Disorder (ADHD), dementia, Developmental Language Disorder (DLD), Traumatic Brain Injury (TBI), personality disorder, stroke, depression, anxiety, Post-Traumatic Stress Disorder (PTSD) and schizophrenia. These guides contain a wealth of information, including:
Background information about each diagnosis.
Common communication difficulties for legal professionals to be aware of.
Strategies to assist clients at different stages of proceedings.
Tips for legal professionals working with each client group.
How to use The Access Brief
This new resource is free to all. Simply visit The Access Brief and register for free using your email address to browse the information online. Do you have a question which isn’t explored on The Access Brief, or a topic you’d like to know more about? Contact us for further information or submit your question via The Access Brief suggestion box.
The prevalence of Attention Deficit Hyperactivity Disorder (ADHD) among people in the Criminal Justice System is believed to be around ten times that of the general population, with around 25% of adults in prison having ADHD compared to 2.5% of adults in the general population (Young & Cocallis, 2021).
Given the high prevalence of ADHD in police stations, prisons and Crown court docks, understanding the condition’s possible impact upon fairness and participation is essential. This need has been recognised by the Ministry of Justice, whose 2021 Prisons Strategy White Paper underscored the need for greater understanding and adjustments for prisoners with ADHD (in response to the 2021 Neurodiversity in the Criminal Justice System report).
Beyond inattention
A big part of understanding and making adaptations to accommodate ADHD more effectively is going beyond the surface. Views on ADHD vary, with some dismissing the condition as ‘naughty child syndrome’, while others understand it to be simply a matter of inattention. In fact, ADHD is a much larger cluster of traits and difficulties.
It can be helpful to picture an iceberg, with a handful of well-known ‘visible’ symptoms (like fidgeting and difficulty paying attention) at the top. A much larger portion of the iceberg, however, is hidden underwater. Here, a much larger number of possible difficulties can be found, including difficulty inhibiting behaviour, difficulty retaining information in order to make a decision, difficulty planning and difficulty regulating emotions.
On a number of occasions during court hearings, I have encountered legal professionals who are not cognizant of the ADHD iceberg. This means that they may be aware of the overt symptoms of ADHD, but unaware of the less well-known and recognisable impacts of the condition. For this reason, I have sometimes encountered judges who have been accommodating in terms of permitting regular breaks, but less disposed to implementing recommendations around how written evidence is used during the evidence of a defendant with ADHD (in this instance, the defendant had considerable difficulty switching his focus when asked to read written evidence on the stand, then struggled to hold information from that document in his mind when answering questions arising from it).
Under the surface
A growing body of research has been exploring the impact of ADHD at all stages of the criminal justice system, from first police interview to rehabilitation.
In police interviews
ADHD is associated with a threefold increase in previous reported false confessions (Gudjonsson et al., 2008).
ADHD is associated with increased compliance, which means an individual is more likely to submit to a request or demand(Gudjonsson et al., 2008).
ADHD can make it difficult for people to manage their emotions and responses during police interviews (Gudjonsson, 2010).
Police can divert from best practice interview approaches when interviewing someone who presents with ADHD-like symptoms. This can lead to poor or inadmissible interviews (Cunial et al, 2018).
“People with ADHD have been shown to apply maladaptive coping strategies when faced with stress, which are comprised of confrontation, escape-avoidance and lack of planning in problem-solving” (Gudjonsson, Young & Bramham, 2007).
People with ADHD are more likely to answer “don’t know” to questions put to them in police interview (Gudjonsson, Young & Bramham, 2007). This can be perceived as evasive, dishonest or unhelpful by both interviews and courts when a case comes to trial.
People with ADHD are especially likely to experience heightened discomfort and difficulty in police custody (Gudjonsson & Young, 2006).
At court
The Royal Courts of Justice. Image credit: David Castor
During court proceedings, issues with attention, compliance, emotional management, executive function [LO1] (e.g. short-term memory, inhibiting impulses, switching tasks, planning and organisation) may all negatively impact a defendant’s ability to understand legal advice, give clear instructions, understand legal argument, follow the thrust of evidence and to give evidence themselves (if they choose to do so). Brown et al. (2022) found that “the prevalence of mental illness and neurodevelopmental disorders in defendants is high. Many are at risk of being unfit to plead and require additional support at court, yet are not identified by existing services”.
The case of R v Friend (1997) offers a window into some of the difficulties a defendant with ADHD may face at trial. In this case, Mr Friend’s legal team argued that adverse inference should not be drawn from his decision not to give evidence at court because “the physical or mental condition of the accused makes it undesirable for him to give evidence”. The judge disagreed and ruled that the jury could draw adverse inference. The case was appealed and the conviction ruled unsafe, after the court of appeal heard from Dr Susan Bailey (an expert in adolescent psychiatry). She stated that it would have been undesirable for Mr Friend to give evidence, as he may have…
struggled to maintain attention over a prolonged period.
become easily distracted.
lost focus and thought about irrelevant topics.
‘tuned out’ and missed chunks of proceedings.
lost his train of thought during evidence.
‘blurted out’ the first response which came to his mind.
become emotionally labile, distressed or angry.
struggled to inhibit a verbally aggressive response.
People in prison who have ADHD are more likely to be involved in “incidents of verbal aggression, physical aggression, damage to property, self-injurious, arson and ‘other’ behaviours” (Young et al., 2009).
“Once in a custodial environment, offenders with ADHD can present a management problem as their symptoms are reportedly associated with aggressive behaviours […] most likely due to their emotional lability and behavioural disinhibition” (Young, 2013).
ADHD has many common co-morbidities, particularly conduct disorder and substance use. Vélez-Pastrana (2020) notes that “ADHD complicates and exacerbates the mental health needs of prisoners and thus requires treatment approaches that respond to this complexity”.
Probation is a crucial step in an individual’s journey out of the criminal justice system. However, tackling recidivism in people with ADHD may be more challenging. For many there is little in the way of ‘joined up’ services. Those who are diagnosed with the condition in prison, for example, may leave prison with enough medication for a week, then receive no support and a long wait to restart medication which they have found helpful.
Difficulties with impulsivity and executive function may also make it particularly challenging for someone with ADHD to follow any conditions attached to their probation. In a study conducted into ADHD in probation caseloads (Young et al, 2014), probation staff…
underestimated ADHD in their caseloads.
felt service users with ADHD had problems with compliance, motivation and engagement.
felt that available interventions were often not sufficient or not suitable.
wanted more support and training to work with offenders with ADHD.
Looking forward
Although not comprehensive, these ideas and statistics paint a picture of some of the negative impacts ADHD can have on an individual’s participation and access to justice at key stages in the criminal justice system. With greater attention now being paid to the condition in this setting, there is hope for the implementation of quality screening for ADHD in police stations and prisons, more joined up services from prison to the community and more interventions for individuals in prison with ADHD (e.g. medication and therapy). These are all important goals which could have a marked positive impact in a range of areas, from recidivism to equal access to justice.
The intermediary role
There is also hope that courts will become increasingly aware of the varied ways in which ADHD can impact effective participation during court proceedings. When we assist service users with ADHD, our intermediaries work hard to clearly outline the possible impacts of ADHD to the court. We also strive to provide clear, practical and measured recommendations which will help to mitigate the difficulties ADHD may present, from seating the defendant outside of the dock to ensuring questions are short, simple and direct during their evidence.
Our intermediaries also identify and implement strategies to facilitate the participation of court users with ADHD outside of the courtroom, for example during legal conferences and assessments.
For more information about how an intermediary can assist a defendant with ADHD, or to learn more about how to arrange an intermediary, contact the Communicourt operations team.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.
References
Brown, P., Bakolis, I., Appiah-Kusi, E., Hallett, N., Hotopf, M., & Blackwood, N. (2022). Prevalence of mental disorders in defendants at criminal court. BJPsych Open, 8(3), E92. doi:10.1192/bjo.2022.63
Cunial, K., Casey, L., Bell, C., & Kebbell, M. (2018). Police perceptions of the impact that ADHD has on conducting cognitive interviews with youth. Psychiatry, Psychology And Law, 26(2), 252-273. doi: 10.1080/13218719.2018.1504241
Gudjonsson, G. H. (2010). Psychological vulnerabilities during police interviews. Why are they important? Legal and Criminological Psychology, 15, 161–175
Gudjonsson G, Clare ICH, Rutter S, Pearse J. (1993) Persons at Risk during Interviews in Police Custody: The Identification of Vulnerabilities. Royal Commission on Criminal Justice Report. Cmnd.2263. London: HMSO; 1993.
Gudjonsson, G., Sigurdsson, J., Bragason, O., Newton, A., & Einarsson, E. (2008). Interrogative suggestibility, compliance and false confessions among prisoners and their relationship with attention deficit hyperactivity disorder (ADHD) symptoms. Psychological Medicine, 38(7), 1037-1044. doi: 10.1017/s0033291708002882
Gudjonsson, G., Young, S., & Bramham, J. (2007). Interrogative suggestibility in adults diagnosed with attention-deficit hyperactivity disorder (ADHD). A potential vulnerability during police questioning. Personality And Individual Differences, 43(4), 737-745. doi: 10.1016/j.paid.2007.01.014
Ministry of Justice. (2021). Prisons Strategy White Paper. London.
R v Friend [1997] 1 WLR 1433; [1997] 2 All ER 101; [1997] 2 Cr App R 231; [1997] EWCA Crim 816.
Young, S., Goodwin, E., Sedgwick, O., & Gudjonsson, G. (2013). The effectiveness of police custody assessments in identifying suspects with intellectual disabilities and attention deficit hyperactivity disorder. BMC Medicine, 11(1). doi: 10.1186/1741-7015-11-248
Young, S., Gudjonsson, G. H., Goodwin, E. J., Jotangia, A., Farooq, R., Haddrick, D., & Adamou, M. (2014). Beyond the Gates: Identifying and Managing Offenders with Attention Deficit Hyperactivity Disorder in Community Probation Services. AIMS public health, 1(1), 33–42. https://doi.org/10.3934/publichealth.2014.1.33
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