To have access to the Criminal Justice Process as a witness is a difficult task for people with intellectual (learning) disabilities (IDs). It is also a challenge for a Criminal Justice System, which is designed by and for ordinary adults, to consider whether and how it can accommodate the needs of people with IDs (Bull, 2013). Critically discuss the progress that has been made in England and Wales, it is positive that, at least, some developments indeed have been made in relation to the vulnerable and intimidated witnesses; so that people with IDs now have access to the Criminal Justice Process as witnesses, as discussed in the first part of this assignment. There is still a large margin for further improvements, particularly concerning the access of the defendants with IDs to the Criminal Justice Process, about whom a legal imbalance is observed and analysed (Jacobson, 2008). Beyond the progress that has been made and will be discussed, the issue of the fairness of the trial will be reminded as it is brought again in the light by the pilot implementation of the measure of the pre-recorder cross-examinations (Ministry of Justice, 2014). It will also be stressed that the diachronically thorny “right to a fair trial” is not the only human right which is relevant to the issue of enabling people with IDs to have access to the Criminal Justice Process. There is also the “right to trial within a reasonable time” which should also be taken into account when permitting long lasting voir dire. The psychological research seems to be limited to the investigating interviewing of people with IDs in order to enable them to give accurate and complete accounts (Bull, 2010). Therefore, a lack of research will be mentioned concerning the impact of the evidence of witnesses with IDs to the final decision making. The conclusion will be optimistically derived from the current timeliness, that more pioneering progress is now expected.
The starting point of the governmental concern about the access of the vulnerable people to criminal justice process is found in 1989 (Home Office, 1989). Then an Advisory Group was appointed to produce a report about the introduction of the video-recorded evidence, known as “Pigot Report” that focused on children with expectations to be extended to vulnerable adults. On 1992, the Department of Health published the Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings (“the Memorandum”) (Home Office, 1992; Bull, 1992) in order to support the provisions of the Criminal Justice Act 1991 on video recording of children’s evidence. However, the application of the provisions to the vulnerable adults until then was viewed as an “extension” of what is set to be applied in children instead of a core task. Further, the plethora of the useful research studies that followed the Memorandum rather concerned the children, while the research about people with IDs was limited (Milne & Bull, 1999;Bull, 2010). Many years were almost needed to re-consider the matter. Tthe issuance of the Disability Discrimination Act 1995, which recognised necessary rights for disabled people, was that important interim step, until the publication of Sanders, Creaton, Bird and Weber (1996). The Sanders et all (1996) “Speaking up for the Justice” (Home Office 1998) was funded by the Home Office, and it more conclusively recommended specific administrative and legal measures to be taken. “Speaking up for Justice” focused on the vulnerable and intimidated witnesses (including children); it attempted to explain the term of “vulnerability” and provided 78 recommended improvements on reporting a crime, identifying the vulnerability of the witnesses and assisting them during all the stages of the Criminal Process. In the course of the implementation program of “Speaking up for Justice” which was called “Action for Justice” there were also many other useful publications like “Vulnerable witnesses: A police service guide” (Home Office, 2002) as revised in 2011 (Home Office, 2011).
The issuance of the Youth Justice and Criminal Evidence Act 1999 (YJCE), which introduced the Special Measures (such as the use of screens, video-recorder evidence, a live link, use of communication aids or intermediaries) for children and vulnerable adults, was the legislative capstone of the existed recommendations. It has combined the expressed trends. The Special Measures were mostly implemented in the Courts in 2002. The same year the first edition of Achieving Best Evidence (ABE) was issued which was replaced and extended the Memorandum and was followed by the revisions of 2007 and 2011 (Ministry of Justice, 2011). Where a person with a particular ID is defined as an “incapacitated witness” the Special Measures are activated automatically on the base of the inherent vulnerability. When she/he is not determined as an “incapacitated witness” she/he may be still eligible of the Special Measures if determined as “fearful or distressed” witness. Even though the boundaries between inherent and situational vulnerabilities remain loose, the interventions of common law were helpful in forming the theory of inherent and situational vulnerability, and the combination of them. They also gave useful inspirations to improve the training on questioning methods in relation to vulnerable witnesses (i.e. R v Cox  EWCA Crim 549; R v Wills  EWCA Crim 1938; R v E  EWCA Crim 3028; Advocacy Training Council, 2011; Criminal Practice Directions –  All ER (D) 52 (Oct)).
A little is better than nothing
To avoid the waste of time on constructing and identifying the “vulnerable” person, the legal approach preferred in England and Wales was that of “children and other vulnerable people.” The spectrum of “vulnerability” is left to be very broad and still doubtful, even within the limited context of people with IDs. It is not necessary to put more emphasis on the objections concerning the generalisation of people with IDs as “vulnerable” in the same category with other “vulnerable” people and on the need of more research on the individualized needs of witnesses with IDs. Objectively criticizing the progress that has been made, the procedural developments were pioneering. As Bull (2010) observes the YJCE is one of the most important legislation pieces in the world (Bull, 2010, p.7). Even though the steps, when viewed from inside, appear to be slow-moving and unnecessarily complex, at least, in England and Wales some steps were so made, in contrast to other places of the world (Bull, 2013). The lack of special training in identification of IDs and questioning methods is apparent. It could also be possible to invent better or more procedural tools to increase the performance of such witnesses (i.e. line-up performance) (Wilcock & Henry, 2013; Clarke & Prescott, 2013; Bowlers & Sharman, 2014) or provide them the necessary support in a less time-consuming and more procedurally “fair” way. However, only the fact that there are regulated procedural safeguards for witnesses with IDs under the umbrella of “vulnerable” witnesses is highly important. This importance is evident as the European Law is now being inspired by the work already done in England and Wales, and it passes from the same pathways of thought finding readymade solutions. Therefore, from this comparative scope, it should be said that a little is better than nothing.
The over-protected witnesses with IDs and the perpetrators with IDs
Apart from the firm welcome of the existence of these procedural safeguards for vulnerable witnesses in England and Wales, it should be mentioned that the Special Measures (YJCE) are not applicable to the vulnerable defendants (Jacobson, 2008; R (S) v Waltham Forest Youth Court  2 Cr App R 2; R v Ukpabio (2008) 1 Cr App R 101). Thus, the representation of defendants with IDs by an appropriate adult (who in practice is rarely available) or their right to be diagnosed and access a suitable rehabilitation program, are not well-researched. The employment of some Special Measures for the vulnerable defendants depends on the discretion of the trial judge in each case (R v Cox  EWCA Crim 549). In this instance, it could be said that the progress that has been made remained limited on few interventions: The procedural safeguards for the identification of the vulnerable witnesses; the assessment of the level of their vulnerability; the selection of the Special Measures that could protect them from the adversarial trial system (Burton, Evans & Sanders, 2007). However, it would a very strict approach to accepting that to enable people with IDs to have access to the Criminal Justice Process just mean to enable them giving their evidence as witnesses. The safeguards for the access of vulnerable people to the Criminal Justice Process should be extended to any involvement into the Criminal Justice Process, including the involvement as defendants. There is the impression that the vulnerable and intimidated witnesses are an over-protected homogeneous group (Hamlyn, Phelps, Turtle, & Sattar, 2004; Cooper & Roberts, 2005; Burton, Evans, & Sanders, 2006; Plotnikoff & Woolfson, 2009), in comparison with the people with IDs who are involved in the Criminal Justice System as perpetrators of crimes. Thus, that there is an imbalance. Moreover, it is a thought that the treatment of IDs within the Criminal Justice System never constituted an autonomous subject of concern. The IDs are put under the general label of “vulnerability” which inescapably let their treatment limited to the witnesses, as this is the law.
Further trying to explain the above mentioned imbalance, it seems that the law historically gave the vulnerable adults access to the criminal justice process based on the considerations that even those vulnerable people may have an important account to give, when appropriately interviewed. In addition, that this account may be the only available incriminating evidence (Milne & Bull, 2001; Jackson, 2003; Quinn, 2003; Kebbell & Davies, 2003; Kebbell, Hatton, & Johnson, 2004; Milne & Bull, 2006). Further, that the people with IDs are more likely to be victimised (Flynn, 1989; Knutson & Sullivan, 1993; Williams, 1995). Finally, that the victims of a crime might feel intimidated when they are involved into the Criminal Justice System and cross-examined by their offenders (Burton, Evans, & Sanders, 2007). The vulnerability of the witnesses was approached together with the risks of intimidation, as it is known in the field of victimology (Gudjonsson, Murphy, & Clare, 2000). Therefore, the progress that has been made to enable people with IDs to have access to the Criminal Justice Process refers only to the vulnerable and intimidated witnesses. In this instance, while there is an almost perfect legal umbrella for the protection of people with IDs who are involved in the Criminal Justice System as witnesses, there is a lack of sufficient legal framework for the protection of people with IDs who participate in the criminal process as perpetrators of crimes, thus as arrested people in police custody, suspects, accused, prisoners or detainees.
Following the above considerations, it should be noted that the prevalence studies show that people with IDs may represent an important percentage of the prison population (Hayes, 2007; Young, Goodwin, Sedgwick, & Gudjonsson, 2013). Whether there is any progress concerning the access of these people to the Criminal Justice Process, the prevention of their own victimization within the Criminal Justice System, and the reduction of their reoffending, remains very doubtful issue (Talbot, 2008; Jones & Talbot, 2010). The experiences and feelings of people with IDs as detainees also remain up to a point an unresearched field which raises serious concern (Hyun, Hahn, & McConnell, 2013). In this line of thought, it could be said that although the progress that has been made to enable witnesses and victims with IDs to have access to the Criminal Justice Process is pioneering, the protection of people with IDs when involved into the Criminal Justice Process as perpetrators does not have any sufficient legal capstone yet. At least, the article 3.8(4) of the Criminal Procedure Rules – Part 3, which set in force on 27 October 2013, provided that in order to prepare for the trial the court must take every reasonable step to facilitate the participation of any person, including the defendant. This addition could be characterised as a challenging starting point. It also inspired Joyce Plotnikoff and Richard Woolfson to prepare a very good practical guidance for advocates on dealing with vulnerable people at court (Advocate’s Gateway, 2013).
Further discussing the access of people with IDs to the Criminal Justice Process as an issue that concerns equally both the witnesses and defendants, it is important to say that, on January 2014, the HM Inspectorate of Probation, HM Inspectorate of Constabulary, HM Crown Prosecution Inspectorate, and Care Quality Commission published their findings in “A joint inspection of the treatment of offenders with learning disabilities within the criminal justice system: phase 1 from arrest to sentence.” This publication interestingly reflects the failure of the system to meet the needs of people with IDs when they are arrested or detained for crimes. It also provides a series of recommendations (such as providing a trained appropriate adult at all the stages of the process or exercising the right of information through pictures) (Criminal Justice Joint Inspection, 2014). The attempt of this publication to put some emphasis to the need of protection of the sidelined group of vulnerable defendants could be a part of the whole progress that has been made to enable people with IDs (witnesses and defendants) to have access to the Criminal Justice Process.
The remaining issue of fairness
Beyond the above mentioned legal imbalance concerning the access of the vulnerable defendants in the Criminal Justice Process, which is related to the fairness of the trial, it should also be stressed that the debate about the fairness of the trial is still open also for other reasons. One of these reasons is the experimental implementation of the measure of video-recorded cross-examination of the vulnerable witnesses. Another reason is that the whole concept of the “intimidated witnesses” is vague.
Starting from the second reason, when the alleged fear of the witness to testify in hearsay form is not directly attributable to a particular behavior of the defendant, but it is due to other reasons (such as to the vulnerability of the witness) the fairness of the trial is doubted (Al-Khawaja and another v United Kingdom (2011) 32 BHRC 1). Therefore, the law requires that a strict distinction of all the kinds of fear to be done, in order to permit such important restriction to the right of the defendant to confront the incriminating evidence in a public trial. It is, therefore, accepted that the “fear of intimidation” should not be approached in a generalized determinative way or in a way that would be incompatible with the necessity to protect the basic rights of the defendant. The legal requirement as for the source of fear to be known and proved is not well-discussed in the literature.
In the attempt of reducing the intimidation of victims when they are called to testify, particularly the victims of sexual violence and rape, a very recent 10-month pilot scheme is applied in the Crown Courts of Leeds, Liverpool and Kingston-Upon-Thames (Ministry of Justice, 2014). According with this pilot scheme the vulnerable witnesses will be able to give their evidence, including cross-examination, ahead of the trial and outside the court. Their pre-trial evidence will be recorded and played during the trials. This pilot scheme appears to be another important progress done in terms that the implementation of the pre-recorded cross-examination was an avoided step for many years, because of the objections raised for reasons related to the fair trial. Further, it seems that it tries to balance the rights of the witnesses and the rights of the defendants, with reference to the diachronic issue of fairness of the trial. The defendants will be able to be present at the time of (distant) cross-examination, to hear and follow the process and instruct their lawyers in relation to the process. The cross-examination will take place in front of a judge.
Is there anything after enabling access?
Another important issue which must be discussed is again related to the meaning of the access to the Criminal Justice Process. It is believed that it is important for the purposes of justice as well as for the vulnerable witnesses to give accurate and detailed accounts (Bull, 2010). It was, therefore, found that the degree of accuracy and detail of their evidence could affect the jurors’ decisions (Bell & Loftus, 1989). Further, it could permit the vulnerable witnesses to be treated without prejudice due to their vulnerability (Aarons & Powell, 2003; Stobbs and Kebbell, 2003). However, the “effectiveness” in terms of subjective or procedural satisfaction is not the only aim of sending the vulnerable people to the witness’s stand. The question is what happens after the witnesses with IDs give their complete accounts with the application of all the recommended interviewing methods. Whether they could affect the decision making, and the extent to which they can do so. Whether there is any hesitation of the judge to be based on their evidence that may be viewed as artificially constructed in order to overcome the existent vulnerability in testifying. Further, whether the vulnerable interviewees who finally give complete and accurate accounts through the use of the Special Measures are also viewed as “competent witnesses.” A “competent witness” is not only the witness who is judged as having the competence to give evidence in the Court. A “competent witness” is also the person who can operate as “means” of capturing correctly the stimuli of the crime (such as the sounds, the visions and the smells) at the time and from the scene of the crime.
Following the above considerations, it seems that there is a serious lack of research as to whether the Courts accept the witnesses with IDs as “competent” witnesses, interviewees or testifiers. As for the legal approach of “competent witnesses” in R v Barker  EWCA Crim 4 it was decided that the witness be competent even if she/he does not understand every single question and give a readily understood answer. She/he may be competent broadly and fairly if she/he understands what is questioned and provide understandable answers. However, while the competence of an interviewer or testifier is judged with criteria of general performance, as R v Barker noted, the competence of a witness of a crime as means of capturing the stimuli of the crime that is related to the term of “credibility” is judged on the small details. Therefore, apart from the admissibility of the evidence of people with IDs, it is important to trace or measure the impact of their evidence to the judges’ or jurors’ decision making (R v IA & Ors  EWCA Crim 1308; R v Davies  EWCA Crim 1177; R v Watts  EWCA Crim 1824). In this instance, very careful case law review is required.
An added parameter should be highlighted when discussing justice as a whole. This parameter concernsthe impact of the procedural delays caused by the exhaustive competence, admissibility and measure-related pre-trial hearings (trial within a trial / voir dire) to any late performance of the witnesses with IDs and to the content of the final judgment. In R v IA & Ors the voir dire lasted for only forty two days while, in other cases, it lasted for months. In R v F  EWCA Crim 424 the Court expressed its deep concern about the delay observed; the allegations have been made from April 2011. The right to a trial within a reasonable time (even though the notion of “reasonable time” is vague) is an important human right. It is also directly associated with the subjective purposes of the criminal justice. Particularly, as concerns the serious offences where there are pressing pre-trial limitations of the defendant’s liberty (Chadambuka, 2012).
The progress that has been made in relation to the access of witnesses with IDs to the Criminal Justice Process in England and Wales is pioneering. This conclusion is reached when discussing all the politico-legal achievements. These achievements were based on the findings of the psychological science (Bull, 2010; 2013) and enabled the vulnerable and intimidated witnesses to have access to the Criminal Justice Process. At least, some progress has been made and a little is better than nothing. There is room for more improvements. In this instance, it was discussed that the effectiveness of the procedural developments that enable people with IDs to have access to the Criminal Justice Process must be approached more holistically. This holistic approach does mean that a legal balance is needed and this balance will be achieved when the access of the defendants with IDs to the Criminal Justice Process is also safeguarded. Further, the right of a fair trial and the right to a trial within a reasonable time need to be more deeply taken into account by legal researchers. Importantly, it is not sufficient for the witnesses with IDs to have just access to the Criminal Justice Process. Namely, it is not sufficient for them to give a complete and accurate account after a perfectly conducted interview. It is necessary to see how their voice is finally heard. Thus, it is necessary to trace or measure the impact of their accounts to the decision making. A case study research is needed for this purpose. Such case study research could focus on the way in which the courts are approaching the competence and the standing of witnesses with IDs since 2002. The current timeliness concerning the pre-trial recorded cross-examination and the awareness for protecting the vulnerable defendants is encouraging. It leaves the satisfaction that the things are almost in a right way. Further, that they will bring soon even more innovative progress in the criminal procedural law in England and Wales.
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R v IA & Ors  EWCA Crim 1308
R v F  EWCA Crim 424
R v Cox  EWCA Crim 549
R v Wills  EWCA Crim 1938
R v E  EWCA Crim 3028
Al-Khawaja and another v United Kingdom (2011) 32 BHRC 1
R v Davies  EWCA Crim 1177
R v Watts  EWCA Crim 1824
R v Ukpabio (2008) 1 Cr App R 101
R (S) v Waltham Forest Youth Court  2 Cr App R 2