AUTISM AND THE CRIMINAL JUSTICE SYSTEM: WHAT DOES THE EVIDENCE TELL US ABOUT THE BEST WAYS TO ADAPT PRACTICES THROUGHOUT THE COURT SYSTEM?

Transcription

1 AUTISM AND THE CRIMINAL JUSTICE SYSTEM: WHAT DOES THE EVIDENCE TELL US ABOUT THE BEST WAYS TO ADAPT PRACTICES THROUGHOUT THE COURT SYSTEM? David Wurtzel Graeme Hydari Penny Cooper 19 th September 2013, Manchester

2 SOME ISSUES Difficulties with social interaction Use of language by people who deal with the witness or defendant The effect of unexpected events and venues Accessing appropriate legal advice Being able to give their best evidence

3 WHO DO WE NEED TO CONSIDER? Criminal justice system participants Prosecution witness: police, CPS, Victim Support, witness supporters, advocates Defendants/defence witnesses: solicitors, advocates For all: Court staff and the judiciary (including magistrates) The process of giving evidence

4 CROWN PROSECUTION SERVICE Problems flagged up by CPS research on special measures for vulnerable and intimidated witnesses (April 2012) and the HMCPS/HMIC joint inspection (February 2012) Need for early identification of witness needs and requirements for special measures Early special measures discussions should happen Special measures meetings between witnesses and prosecutors Timely special measures applications

5 CPS GUIDANCE ON SPECIAL MEASURES Prosecutors must have sufficient information about the witness and their wishes Early special measures discussions are an opportunity to discuss the VW s needs The application must be made within set timescales Memory refreshing issues will be raised at the PCMH Interim guidelines on prosecuting cases of child sexual abuse (e. g., need to challenge myths and stereotypes)

6 ISSUES WITH THE CPS Has the witness and/or their supporters/family established contact with the CPS lawyer directly or indirectly through the OIC? Does the CPS have sufficient information about the witness? Has there been adequate discussion about what needs to be adapted for the witness? Has the CPS followed their own guidance especially about special measures? Consideration given to who is being instructed as counsel

7 DISCLOSURE HMCPS Inspectorate report July 2013 on disclosure of medical records and counselling notes in rape and sexual offences cases Witness s consent is required before any disclosure (R v Stafford CC, 2006) Need for informed consent by witness (or PII) Witness needs to understand Crown s CPIA disclosure duties and how defence may use the information Query voluntary disclosure to better understand the witness s needs Crown s duty to its witnesses

8 PRIOR TO TRIAL: VICTIM SUPPORT Court familiarisation: who does it and when? What information do they have about the witness? Is the traditional presentation the most appropriate or does it need to be adapted and how (what reassures and what does not reassure)? Has the family/supporter had an input? Arranging how to get to court, how to get into the building and where to wait Witness familiarisation

9 AT TRIAL What has the court staff been told? Who is in charge of telling them? Ground rules hearing: recommended in all cases with vulnerable witness but required where there is an intermediary Consider having it prior to trial Consider extra special measures where appropriate

10 THE AUTISTIC DEFENDANT AT COURT Defendants need to have the same support and help as vulnerable victims s Speed of proceedings- Defendants need more time Effects of cost-cutting in the Court Service Consolidation of courts, reduction in court staff to assist Case Management Fixed Legal Aid fees for preparation Fixing trial court dates Ground Rules Hearings Procedure to obtain appointment of Intermediary for Defendant / funding needs simplifying

11 WHAT IS PROPER CROSS-EXAMINATION WHEN A WITNESS OR DEFENDANT HAS ASD? In 1949 Lord Denning wrote: When cross-examination is properly conducted, it is not only not unfair to the witness, but it is a most valuable instrument in ascertaining the truth But he wouldn t have had autism in mind Aspergers - identified in about 1944 The NAS wasn t founded until 1962 (Lorna Wing was a co-founder) And Lorna Wing s Asperger's Syndrome: a Clinical Account (1981) brought it to our attention in this country

12 SPECIAL MEASURES AND SUPPORTERS Youth Justice and Criminal Evidence Act 1999 Screening the witness from the accused (section 23) Evidence given by live-link (section 24) Evidence given in private (section 25) Removal of wigs and gowns whilst the witness gives evidence (section 26) Video recorded evidence in chief (section 27) Video recorded cross-examination and re-examination (section 28) [not yet in force but piloted soon ] Evidence given through an intermediary (section 29) Use of aids to communications (section 30) Section 102 of the Coroners and Justice Act 2009 now also provides for a supporter to accompany the witness while giving evidence in the live link room.

13 BEING WARNED POOR CASE MANAGEMENT COULD THWART THE BEST INTENTIONS An RI told me about this case with an autistic witness A warned trial meaning they would be waiting every day, for 2 weeks, for a call at 4 pm alleged victim is a very vulnerable 18 yr old with autism, and enormous emotional and behavioural problems, and there is uncertainty over which court it will actually be in As Joyce Plotnikoff pointed out the policy on fixed trials only applies to children but as your witness is 18 now and was presumably under 18 when this entered the court process, it is worth arguing the point Common sense prevailed, with foot stamping by CPS and RI hearing converted to a fixed trial at other Crown Court (witness lives 50 miles away) but overall it will be better for the witness

14 AND ANOTHER EXAMPLE: THE BACK UP TRIAL On the day before, at the memory refresher the witness service manager noticed that the trial was a "back up" trial as they called it. 1 of 3 before another trial. This was for a man with Aspergers. RI protested, Witness Care phoned the Listings Office, they contacted the judge (who was not the judge at the Ground Rules Meeting) who said he wanted it to stay as a back up. In the end the defendant didn't turn up. Luckily not least because the prosecutor and defence counsel for the back up were not at the Ground Rules Meeting either! RI took initiative to phone new prosecutor in chambers.

15 WHERE S THE EVIDENCE BASE FOR QUESTIONING A WITNESS/ DEF WITH ASD? Who has researched autistic witnesses actual experiences? Who has studied in court the cross-examination of autistic witnesses? What advice is there for advocates who question the autistic witness when in court? theadvocatesgateway.org Toolkit 3 developed by Joyce Plotnikoff and supported by many contributors including barristers, intermediaries and Sue, Katie, Fran and Emily

16 QUESTIONING INFORMATION FROM THE ADVOCATE S GATEWAY TOOLKIT 3 ASD Short simple questions Simple words Unambiguous language NOT Bear with me, Let me paint you a picture, Were you close to Jane, Did you get cold feet in the middle answered after looking at her feet and her stomach I haven t got cold anything Sign post subjects Don t make promises you can t keep I m going to ask you a couple of questions

17 BEWARE UNREALISTIC EXPECTATIONS: SITUATIONAL ANXIETY AND VICIOUS CIRCLES Anxiety increases the witness s difficulty comprehending what is being said and what is going on. This situational anxiety can mean that a question that was clear in the ABE interview becomes hard to understand in the stressful setting of the court hearing. Even a simple question might be misunderstood. Question: Do you want to go on? Answer: On what? Don t interrupt the tangential/ long winded answer The autistic person who is aware that there is miscommunication is likely to become more anxious because they know that they do not understand/respond in the way the questioner wants them to; this may become a vicious circle. IMHO: Taking a relatively short break so that the witness can calm down (before they become completely overwhelmed) is likely to save time in the long run.

18 A NEAR PRISTINE IGNORANCE? BBC radio 4 Book of the Week commencing 24 th June 2012 The Reason I Jump by Naoki Higashida translated by David Mitchell and K.A. Yoshida Introducing Episode 4 on 27 th June 2013 David Mitchell said: The unavoidable conclusion is that both emotional poverty and an aversion to company are not symptoms of autism but consequences of autism and its harsh lockdown on self-expression and society s near pristine ignorance about what s happening inside the heads of people with autism. Cross-examination is supposed to be a tool to reveal what is really going on inside the witness s head but if done badly is likely to cause lockdown the very opposite of what it is supposed to be achieving