Portal de Periódicos da CAPES

Witnesses with learning disabilities

2001; Wiley; Volume: 29; Issue: 3 Linguagem: Inglês

10.1046/j.1354-4187.2001.00156.x

1468-3156

Isabel C. H. Clare, Glynis H. Murphy,

Criminal Justice and Corrections Analysis

‘…(R)edressing the stereotyped view of people with learning difficulties, in relation to crime, is the key element in changing the current situation. Justice is frustrated not only because of the response of the separate agencies, but of the effect they have on each other. The police do not record crimes because they believe the CPS will not prosecute, staff do not report to the police because they “do nothing” and victims do not tell staff because ‘they say the police won’t help'. Consequently the courts are unpracticed at dealing with vulnerable witnesses, and perpetrators see people with learning disabilities as safe targets. Positive action…could break this spiral.' (Williams 1995.) Since the investigations into long-stay ‘mental handicap’ hospitals (Martin 1984), and the pioneering work of Ann Craft & Hilary Brown (Brown and Craft 1989), and, later, of Chris Williams (1995), there has been increasing awareness of the extent of crimes against, or otherwise seen by, people with learning disabilities in a wide range of settings. Whilst this has led to the development of Adult Protection policies, and other helpful strategies to minimize the incidence of victimization, until recently there was little progress in helping men and women gain access to the criminal justice system once offences had already taken place. Investigations by the police were limited, and with few exceptions (Gudjonsson & Gunn 1982; Fraser 1993; Sanders et al. 1997), prosecutions involving the appearance in court of alleged perpetrators and evidence from people with learning disabilities were rare. After a long campaign by organizations working with, and for, people with learning disabilities, an interdepartmental working group was set up to examine the barriers to access to justice for vulnerable or intimidated witnesses. Very importantly, their report, Speaking Up for Justice (Home Office 1998), acknowledged that, as for other groups who are socially disadvantaged and excluded, the vulnerability of people with learning disabilities is often based as much in the imbalance of power in their relationships with others as in their individual characteristics. Following extensive consultation, new legislation – the Youth Justice and Criminal Evidence Act (1999)– was introduced in England and Wales. Adopting the recommendations made by the working-group and, crucially, the principles on which those recommendations were based, it is now being implemented. This is an exciting time, then, to be invited to prepare a special issue on ‘Witnesses with Learning Disabilities’. The contributions we have selected are diverse but they highlight, firstly, the urgency of the need for change, and secondly, the opportunities provided by the new legislation and the initiatives associated with it. Consistent with earlier studies, recent research indicates that the current situation remains bleak: from Hannah Sharp's summary of a multi-agency UK inquiry (Living in Fear, Mencap 1999) and Glynis Murphy's review of a report drawing on this inquiry (Sharp 2001), it is clear that crimes against people with learning disabilities are frequent. Yet, fewer than one in five of the men and women involved reported their experiences to the police, and those who did often felt the police did not treat them seriously. Moreover, if their experiences are investigated by the police, and proceed to court, witnesses with learning disabilities face major difficulties. In their informative analysis of transcripts of court cases, Mark Kebbell, Chris Hatton, Shane Johnson and Caitriona O'Kelly found that lawyers often ask questions that are inappropriate, either because they communicate the answer required or because they are downright confusing. More encouragingly, Pam Cooke and Graham Davies examine the opportunities for change offered by the Youth Justice and Criminal Evidence Act (1999). In particular, they draw attention to the range of ‘special measures’ that provide a framework for supporting the provision of ‘best evidence’ in court by vulnerable or intimidated witnesses. However, other changes are needed in the criminal justice system if people with learning disabilities are to feel that their accounts are ‘heard’. Several articles describe how the police and other personnel might facilitate this process by improving their interviewing skills and intervening when interviews are carried out inappropriately. Cooke and Davies outline the new guidance (Home Office 2000) for gaining accounts from people with learning disabilities, which has been drafted as part of the implementation of the new legislation. In a complementary paper, Rebecca Milne and Ray Bull review the existing research to identify, and suggest practical strategies to minimize, the difficulties in obtaining information from people with learning disabilities. Addressing the experiences of the participants in Living with Fear (Mencap 1999) they emphasize the importance of responses by criminal justice system personnel that maximize the interviewee's sense that she or he is being listened to. Kebbell et al. make a similar point, using transcripts to illustrate how judges and magistrates can intervene effectively when witnesses with learning disabilities are confused or discomforted by the manner in which they are examined in court. As the framework provided by the new legislation is implemented, there is likely to be a growth in the number of requests from different parts of the criminal justice system for advice about the support of individual witnesses with learning disabilities. Gill Green describes a court case culminating in the conviction of a paid carer to illustrate how such advice might be provided. Green's paper includes a reflection by the victim-witness, Ms. S, herself. Whilst acknowledging the difficulties of preparing to give evidence, Ms. S's account movingly demonstrates the therapeutic effect that access to justice may have in assisting the victims of crime to cope with their experience. At the end of the criminal case, she made a claim for financial compensation. Even when an alleged offence has not resulted in a conviction, or indeed even gone to trial in a criminal court, compensation through the civil courts is still possible. Practical information about making such claims is provided by Nicola Harney, a solicitor, in Andrew Holman's informative interview. As several of the contributors point out, the framework of support provided by the Youth Justice and Criminal Evidence Act (1999) will be of little value to victims and other witnesses with learning disabilities if they are not identified within the criminal justice system. Hannah Sharp's paper, and the review, later in this issue, of her booklet Just Gateways? (Sharp 2001), emphasize the importance of the police in this process and in providing initial support to victims and other witnesses to alleged crimes. She describes a number of recent, increasingly interagency, initiatives. At the same time, in order to minimize the perception that, as Williams (1995) states, they are ‘safe targets’, people with learning disabilities themselves need to be empowered to recognize, and respond to, crimes and other types of antisocial behaviour against themselves or others. In their review, James Fletcher, Michelle Flood and Sue Pryor reflect, from their perspective as members of an advocacy group and representatives of a county-wide forum for promoting the rights of people with learning disabilities, on two sets of materials developed for this purpose. Monitoring and evaluation of the impact of the new legislation on potential witnesses with learning disabilities is essential. Reviews of the changes introduced in the late 1980s to assist child witnesses suggest that new initiatives are not always implemented fully, or are not used as a basis for further developments, and that they do not always have the intended effect on the everyday lives of those they are supposed to assist. Nevertheless, with this note of caution, it seems that progress is, at last, being made to respond to Williams's (1995) call for ‘practical action’ to improve access to justice for witnesses with learning disabilities. We hope that readers will find the articles we have selected useful in their work and that they will support, and promote further, progress in ‘redressing the stereotyped view of people with learning difficulties, in relation to crime’ (Williams 1995). During the preparation of the articles, we learned that Pam Cooke, Director of the Ann Craft Trust, and Christiana Horrocks, Director of VOICE UK, were retiring from their posts. Both have contributed enormously to this area of work; we dedicate this issue to them. Finally, we acknowledge, with thanks, the support and assistance we have received from Jan Walmsley and Dorothy Atkinson and their colleagues at BJLD, and also from Tony Holland and Michael Gunn.