Representing those with SEND in court

A teen boy with his head in his arms, wearing a shirt that says 'NYPD'

Courts are failing to take into account the special needs of those they are prosecuting, and it needs to end, says Caroline Spencer-Boulton.

Having specialised in the field of Criminal Defence for 14 years, I have spent the last eight years operating as a licensed paralegal preparing cases for my own clients. As such, I have been involved in the preparation of defence cases for a number of clients with special needs. In my opinion, there has been a failure by the legal profession, in obtaining proper and full assessments of clients with Special Educational Needs (SEN). SEN may lead to a significantly lower IQ, an inability to understand and consider the consequences of your actions and the potential to be over-compliant, amongst many other traits. This failure to assess includes conditions such as ADHD and ADD. Although in more recent years, there has been more awareness of SEN in education and to a small degree, an awareness within criminal law, there are still some older teenagers and adults whose disabilities are neither understood nor considered fully.

When representing those charged with criminal offences it is essential that any potential special needs are taken into account, as well as any potential mental health issues. Significant time should be spent with a client who you suspect may have special needs – many teenage and older clients may not provide their diagnosis due to stigma. Sometimes, clients may not even fully understand the relevance of their diagnosis, or they may not have been diagnosed. Full assessments by psychological and psychiatric expert professionals should be obtained. Evidence should be given at court if the prosecution does not agree with the defence experts findings, by the experts who should outline to a jury in layman’s terms the issues and effect that any special needs would have on a defendant’s thinking ability and behaviour. By doing this, a jury will be able to understand and fully consider all the circumstances of a defendant’s case whilst determining their verdict. 

Legal Representatives should consider adverse behaviour as a child or teenager growing up in care, or within a dysfunctional or disadvantaged family. Additionally, clients may be confused by basic procedures and processes, or be unable to read correspondences or paperwork. These issues are often deemed to be of no concern for many legal representatives to consider further investigation or expert reports in respect of whether a client suffers from SEN and / or mental health conditions. Such incidents have led to miscarriages of justice in the past, yet still today not enough consideration is given to those who have special educational needs who are caught up within the criminal justice system.

As a police station accredited representative, I have attended police stations, and other venues, to advise and assist clients who are being interviewed by police. At the police station, when a person has been arrested and is being booked into the custody suite, they are asked if they have any mental health issues as part of the welfare check. However, many will not divulge such information to police or the legal representative due to societal stigma.

What to do when you are arrested

First, inform the arresting officer of your condition. When being booked into the custody suite you should inform the Custody Officer that you have special needs and any diagnosed mental health issues. The police have a duty of care to all who are arrested and detained at a police station and therefore should be informed of any medical or health issues you have which may affect you whilst you are at the police station. The Custody Officer will ask if you would like to speak with a solicitor or legal representative. Always request advice and assistance from a legal representative or solicitor. If you have the name and telephone number of your preferred legal representative, you can give this to the Custody Officer so that they may be made aware that you require their advice and assistance. Never go into an interview alone, even if you think that by doing so you will be released from the police station sooner. Advise your legal representative of your special needs when they arrive at the police station. This may have a significant effect on the advice they provide to you and any potential representations they make to the police.

Addressing the issues

At the police station, a full and proper assessment should be done by suitably qualified and experienced nurses. The aim is to determine whether a client has any special needs and what their real ability to understand and give instructions or an interview is. All too often, clients are deemed fit for interview at the police station, when clearly they are not. Legal professionals, both defence and prosecution, also need to be educated to understand special educational needs and mental health issues. They need to note and consider these issues if they have concerns when dealing with a client and obtain a medical assessment from a psychiatrist or psychologist. Assessments should not just be concerned with whether someone can be prosecuted – their level of understanding and ability should also be taken into account. 

The help available from the Probation Services should be emphasized, and it should be ensured that the most vulnerable are protected by the courts. Where clients are given custodial sentences, there should be available facilities within prisons to assist a prisoner in dealing with their special educational needs. 

Prisons should revert to proper rehabilitation techniques, which appear to have waned over the past 10 years or so. This should include suitable assessment of those with SEND and associated mental health issues, particularly for ASD, ADHD and PTSD, all of which can be complex. Appropriate treatment should be given to those serving custodial sentences. Those with significant special needs and/or a low IQ should be provided with approved courses and treatment to help with coping and progression. The return of ‘hands on’ educational studies (significant for all defendants convicted and subjected to prison sentences) would give recognised qualifications to assist them to find employment upon their release. A service should also be put into place to assist those who have left prison so that they may continue to be provided with assistance and treatment, in order to reduce reoffending behaviours.

The use of intermediaries in court proceedings appears to be a rarity. In a world where there is a significant trend towards those with SEND facing proceedings before the Courts, intermediaries should be instructed to assist the client during trials and other hearings or conferences where necessary. This intermediary service is currently heavily overlooked.

On a positive note, there does appear to be a very gradual roll out of psychiatrists being available at the courts to assess defendants facing sentencing. A very tiny step, but certainly one in the right direction. However, my concern is that there are not enough hours in a day at the court for a full and proper assessment to be carried out. Therefore, in my opinion, without a full assessment, defendants will not be offered appropriate treatment or sentencing plans. 

Full expert reports should be obtained by defence legal teams on their client’s behalf where and when possible. Legal aid funding is available for these expert reports where clients are legally aided. For those clients who privately fund their defence case, their defence team should advise them about the importance of obtaining expert reports on a client’s mental health issues, although that this can be at a significant cost to the privately funded client.

Special educational needs are all too often either not fully considered by legal professionals and related authorities, or even entirely ignored. This must change for future generations.

This article also appeared in issue 109 of SEN magazine. For more articles on SEND law, click here.

Caroline Spencer-Boulton
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