Mental Health, Autism & Learning Disabilities in the Criminal Courts

Information for magistrates, district judges and court staff

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b. Special measures

While statutory protection and support exists for vulnerable witnesses, most notably provided for by the Youth Justice and Criminal Evidence Act 1999, there is little statutory provision for vulnerable defendants. The Police and Justice Act 2006 allows children and vulnerable adult defendants to give evidence via a live television link if certain conditions are met. If you wish to consider this option you should seek advice from the legal adviser.

A further special measures provision is included in the Coroners and Justice Act 2009, which made provision for vulnerable defendants to give their oral evidence in court with the assistance of an intermediary. However, this provision has not yet been implemented. Further information about the role of intermediaries, including how an intermediary for a defendant can be appointed by the court, can be found in Section 11e: i) Specialist communication support – intermediaries.

The lack of parity between support for vulnerable witnesses and vulnerable defendants has been raised as unjust by a number of organisations, including the Royal College of Psychiatrists and the Prison Reform Trust (PRT); see PRT briefing paper, Fair Access to Justice. The Lord Chief Justice and the Director of Public Prosecutions, amongst others, have noted this lack of parity as a matter of concern; and in their report on Unfitness to Plead, the Law Commission recommend that, subject to restrictions, 'a statutory entitlement be created for intermediary assistance to be extended to a defendant during or in connection with the proceedings' (Law Com 364, 2016:319).

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