Mental Health, Autism & Learning Disabilities in the Criminal Courts

Information for magistrates, district judges and court staff

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e. How to recognise when a defendant might have speech, language or communication needs

Communication difficulties are frequently described as a hidden disability because they are not visible and are often not obvious. Some people can become adept at hiding the true nature of their difficulties, for fear of ridicule or because they feel embarrassed, while others – especially children and young adults – may not be aware that they have speech, language and communication needs. People with communication difficulties can present as articulate, with good surface language skills, which can make it harder to recognise that they might need support.

There are, however, some signs that you can look out for that might suggest that a defendant is struggling to understand and to communicate effectively in court proceedings.

For example, a defendant with speech, language or communication needs might:

  • not understand common criminal justice and court terminology, for example, words such as remand, custody and bail
  • take longer to answer a question or follow an instruction
  • respond inappropriately to questions or instructions
  • have difficulty engaging
  • say they understand when, on seeking further assurance of their understanding, they clearly don’t understand
  • use words inappropriately
  • respond inappropriately to their situation as a defendant in court. For example gazing around the court room, smiling, laughing, or not paying attention to what is happening
  • appear unduly anxious, distressed, angry or frustrated
  • use aggression to deflect hard conversations or to avoid having to admit that they don’t understand
  • be disruptive
  • be quiet and seemingly compliant
  • appear withdrawn and say little in response to questions. 

For many defendants some straight forward communication ‘rules’ can help, see Box 1, below.

Where liaison and diversion services exist (see Section 13, Liaison and diversion services (England) and criminal justice liaison services (Wales)), staff may be asked to include an assessment of a defendant’s speech, language and communication needs in their report, a copy of which should be made available to members of the judiciary.

However, there will be occasions in court when, despite your best efforts, specialist communication support is necessary to ensure the defendant is able to participate effectively in proceedings. If you remain concerned that a defendant is unable to understand or to communicate effectively in court, specialist help should be sought, and this can be provided by an intermediary (see Section 11e (i) Specialist communication support - intermediaries).

Box 1: Supporting communication and comprehension in court  

  • Use the defendant's name and ensure you have their attention before you begin speaking to him or her. 
  • Explain in simple language and short sentences what is going to happen at each stage of court proceedings. As a general rule give one piece of information per sentence. 
  • Don’t ask, ‘do you understand?’ A ‘yes’ response or a nod does not necessarily mean the individual does understand. Instead, ask the defendant to tell you what they have understood.
  • Avoid using jargon and technical or legal terminology. If such language cannot be avoided, explain what it means and check understanding.
  • Allow extra thinking time so that the defendant can process information and consider their response before replying.
  • Offer support with reading and understanding documents in court. Being able to read a document doesn’t mean the defendant understands the content. This may still need explaining.
  • If the defendant is unable to write very well, he or she might need help in making notes of proceedings. For example, a defendant might be able to follow proceedings or take notes but not do both at the same time.
  • Allow a defendant to sit next to their advocate, carer or a family member. This can help to reduce the stress of appearing in court and enhance defendants’ participation in proceedings. 
  • Ensure court documents are accessible, for example, written in Easy Read. Further information about Easy Read can be found in Section 11, Supporting vulnerable defendants in court, Box 3: Easy Read.
  • Ensure the defendant can hear proceedings clearly.
  • Ensure glass security screens do not impede the defendant’s ability to hear.
  • Defendants with communication and comprehension difficulties might need breaks for ‘explanation time’, which should be in addition to breaks to help counter fatigue.
  • Defendants with communication and comprehension difficulties might tire more easily and need extra breaks. Such breaks should not be used as ‘explanation time’.

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