Power and Vulnerability Abuse in the CJS. Lynda Gibbs Programme Director ICCA

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1 Power and Vulnerability Abuse in the CJS Lynda Gibbs Programme Director ICCA

2 Background

3 Inns of Court College of Advocacy ICCA or The College Formerly the Advocacy Training Council (ATC) Provides leadership, expertise and guidance in the pursuit of excellence in advocacy and professional ethics Vision: for the profession to regard the College as the resource of choice for education and training materials College wishes to become a global centre of excellence for the teaching of advocacy and ethics Materials are delivered online through Inns and Circuits

4 What the experts say Nov 2014 Dr Emily Henderson - Counsel Magazine article Jewel in the Crown : there is a pressing need for increased engagement with academic experts in forensic interviewing to assist in developing alternative questioning strategies. Advocates should not consider they can go it alone in this complex and demanding field. Oct Professor Nigel Eastman Psychiatric assessment of criminal defendants: what lawyers don't get to see and need to know.any advocate must be knowledgeable about what makes a competent psychiatric expert, as well as about the nature of the interface between psychiatry and law. Understanding is a two way street.

5 Advocacy and the Vulnerable

6 Vulnerable witnesses 27 years since the Pigot Committee proposed a mechanism to allow for the whole of a young child s evidence to take place out of court, in advance. 17 years later, proposals were incorporated into ss of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), which introduced special measures directions in case of vulnerable and intimidated witnesses. Even then, not all of those provisions were brought into force. In particular, a witness still had to attend at the trial, usually many months later, in order to be cross-examined. One of the main purposes of the Pigot recommendations taking the vulnerable witness s evidence substantially in advance of the trial was frustrated

7 Where are we now? December 2013, s 28 of the YJCEA 1999, (video-recorded crossexamination and re-examination), piloted at 3 Crown Courts Summer 2016, MOJ announced national rollout of s. 28 recorded cross-examinations Rollout in relation to s. 16 witnesses has been put back until October/November 2017 s 17 witnesses to October/November 2018 As a result, s 28 will soon be available to all witnesses to whom the special measures provisions apply

8 ICCA National training programme 65 Lead Facilitators 250 Facilitators 14,000 advocates, pan-profession Courses delivered through Inns, Circuits, TLS, CPS 8 hours online prep 3 hours face-to-face training Consolidation films (one of Nicola Lewis) Rigorous QA protocols

9 ICCA Conference 2016

10 Outcomes from the 2016 Conference Workshops centred around all kinds of vulnerability: Cultural, financial, bereaved relatives, all court personnel from witnesses to lawyers, defendants, court staff, experts, young offenders, interpreters and judges Abuse in the criminal justice system was a key outcome Two areas of abuse related to youth justice and evaluation of psychiatric evidence

11 Children and young people in the CJS

12 Is the current system abusive? Youth justice is not a specialism in England and Wales It has been regarded as a place for junior advocates to cut their teeth In the USA, rehabilitation is a central principle of juvenile justice, with greater responsibility on communities for support. Local outreach programs and alternative sentencing are seen as better solutions than prison terms Charlie Taylor s Review Dec heralded a welcome shift and clear recommendations for youth justice generally

13 Youth justice should be a specialism England and Wales still has the highest number of children in custody in the whole of Western Europe Around half of those have been in care (looked after) Over 73% of convicted children reoffend Many come from dysfunctional and chaotic families Brain development is incomplete; they have immature skills in empathy, remorse and planning which affect their decisions Young people should be represented by specialist lawyers

14 ICCA youth justice resources ICCA have produced 5 guides to deal with tricky areas of practice: First hearings, Bail and Remand, Anonymity and Reporting, Sentencing, Application for Certificate of Assigned Advocate 8-minute illustrated film tackling communication and engagement Collaborative work with JFKL and YJLC, Catherine O Neill Launches Friday 27 th April Freely available on ICCA website

15 Psychiatry vs. Law

16 Expert psychiatric evidence Professor Nigel Eastman, Emeritus Professor of Law and Ethics in Psychiatry, Honorary Consultant Forensic Psychiatrist, St George s, University of London Profound difference between legal and medical approaches to mental illness often leading to mutual misunderstanding, ethical tension and legal error Advocates needs to understand the nuts and bolts of both clinical assessment by any psychiatrist and the medical knowledge base that underpins the expression of expert opinion. The purposes of medicine and law are entirely different. The legal definition of "mental disorder" is different from the medical definition. Psychiatrists have an inherent bias towards the welfare of the patient. Diagnoses are made to reduce the suffering of the patient.

17 Where lies the answer? In order to assess defendants and appellants, comprehensive psychiatric skills are required Specific forensic psychiatric skills are necessary both to (1) assess defendants who have exhibited serious offending behaviour and (2) to present psychiatric evidence within criminal proceedings in a fashion that can best assist the court and which minimizes confusion as to its legal implications. Equally, any advocate must be knowledgeable about what makes a competent psychiatric expert, as well as about the nature of the interface between psychiatry and law. Understanding is a two way street.

18 Statistical information

19 Lawyers fallacy Probability can be misinterpreted leading to abuse in CJS In the case of Sally Clarke it was wrongly stated that the chances of two cot deaths in one such household was 1 in 73 million This is not the same as saying that the probability of innocence is 1 in 73 million. It is the confusion of the probability of innocence with the probability of seeing an event. These things are not the same. Sally Clarke was convicted in 1999 and her conviction overturned on a 2 nd appeal in She died in 2007 from alcohol poisoning.

20 ICCA statistics resources Booklet produced with help of funding and a collaboration with the Royal Statistical Society Dealing with statistical information and helping lawyers to recognise, understand and manage statistics and probability statements made by experts A little bit of statistical information for the legal profession would go a long way Hartford T (2015) Making a Lottery out of the Law - Financial Times Case scenarios from several areas of practice Likely to be launched between June and September 2017

21 United approach We must all strive for a deeper and more meaningful appreciation of other fields of expertise That includes an understanding and respect for intermediaries, medical experts, investigative interviewers, psychiatrists Lawyers cannot do it alone Time and resource are against publicly funded lawyers College aims to provide ongoing, accessible, free resources to help advocates do their best Will all help to decrease abuse in court system

22 Thank you