The Right to a Fair Trial: people with Intellectual Disabilities: British Society of Criminology Conference, Criminology at the Borders,

Research has shown that people with learning disabilities (i.e. adults with an IQ of less than 70; significant impairments in adaptive behaviours (daily living skills); and onset of these difficulties occurring before the age of 18 yrs) (World Health Organisation 1996) have a number of vulnerabilities which mean they are at increased risk of being generally marginalised in society both economically (Emerson & Parish 2010) and socially (Forrester-Jones et al., 2006). More specifically, they are also likely to be disadvantaged when they come into contact with the civil or criminal justice system (Murphy & Clare 2009).
Article 6 of the European Convention on Human Rights (ECHR) specifies that everyone should have the ‘right to a fair trial’. Yet, case law (e.g. SC v UK [2004] ECHR 263), government commissioned reports (Bradley, 2009) and research (e.g. Young & Gudjonsson, 2009) have all highlighted serious doubts as to the appropriateness of the court environment and level of support provided to vulnerable defendants and witnesses, including minors and people with learning disabilities. In SC v UK (ibid), the ECHR ruled that the right to a fair trial of an 11 year old boy had been breached because of his young age and limited cognitive abilities; he did not have ‘effective participation’ in the trial. Further, in R (TP) v West London Youth Court [2005] EWHC 2583 the court ruled that whilst youth or limited intellectual ability of the defendant doesn’t necessarily lead to a breach of the right to a fair trial, future courts should adapt their practices to enable defendants to actively participate in the proceedings. Whilst a number of practical recommendations were made to support vulnerable defendants in court (e.g. using simple language), concerns continued to be raised by a Prison Reform Trust submission to the Joint Committee on Human Rights (JCHR) enquiry on adults with learning disabilities which stated:
“…serious failings in the criminal justice system…give rise to the discriminatory treatment of people with learning disabilities” (JCHR, 2008, para 212)
In this paper, drawing from literature, social policy and UK case law, I will argue that people with learning disabilities are subjected to inequalities within the criminal justice system and that specialist courts for people with learning disabilities should be developed. I will advocate that such a reform is not only desirable, practical and useful, it is imperative if people with learning disabilities are to truly receive a ‘fair trial’. Vol 12 ISSN 1759-0043