Listen to Kim Turner's episode of the Crime and Consequence podcast: 'Don't worry Miss, it's not serious'. Kim Turner is a highly experienced speech and language therapist who has worked in the criminal justice system for over 10 years. Kim is currently working as a speech and language therapist in the adult prison estate and as a senior lecturer at Manchester Metropolitan University. In the episode, she reads her essay from our recently published book Crime and Consequence: what should happen to people who commit criminal offences?

This episode and fourteen others are available to listen here, or you can subscribe to Crime and Consequence wherever you get your podcasts.

Kim Turner's essay from Crime and Consequence:

A few years ago I was working with a young man who, it became clear to me, had pleaded guilty to an offence he couldn’t have committed. I wasn’t quite sure I’d understood correctly so I checked this out with him. He confirmed I’d understood correctly but he felt it wasn’t serious because there were lots of other things that he had done and hadn’t been caught for. Even so, I asked why would he plead guilty when he wasn’t. He declared that he didn’t understand anything that was said in court and it was always the same anyway – ‘Blah, blah, blah, guilty!’ – so there was no point.

Although this young man didn’t consider it to be serious, I consider it a very serious issue that people could be pleading guilty to offences they have not committed simply because they don’t understand the court proceedings. Working as a speech and language therapist in the criminal justice system over the last 10 years I have repeatedly been told by individuals that they have found court difficult due to a number of issues, such as:

• the language used – vocabulary, grammar, amount and not forgetting Latin!
• being worried that they won’t understand the questions they will be asked
• feeling embarrassed about how they will be perceived because of how they talk.

A central tenet of our system is fair and equitable access to justice. I would argue that individuals with speech, language and communication needs (SLCN) are not currently receiving equitable access and this is indeed very serious. It is serious for the individual as they are facing a potentially life-changing situation with possible lifelong ramifications. It is serious for the victim if they are unable to represent themselves in a way which conveys their experience or convinces the court of the impact upon their life, or if the perpetrator in their case remains at large. It is also a serious issue for the wider society if our justice system does not work for a significant percentage of the population.

International research has repeatedly found that people in contact with the criminal justice system have significantly higher levels of SLCN than the general population (50%+ rather than 5–7% in the general population). These SLCN may be associated with another condition, such as autism and/or learning disabilities, or more often exist on their own. Research has shown these individuals have difficulties in a number of areas; higher levels of hearing impairment, less clear speech, difficulties expressing themselves through language, understanding language, lower literacy skills and difficulties following the ‘rules’ of everyday conversation. The vast majority of these individuals have lived with their SLCN for their whole life and may have become very adept at masking their difficulties, often unknowingly. They are, however, often seen as uncooperative, rude or ignorant rather than people in need of support. Behaviour is seen and addressed while the underlying communication difficulties go unnoticed. In fact, the evidence suggests that three quarters of individuals with these difficulties go unrecognised before they are in contact with the criminal justice system. SLCN are often referred to as a ‘hidden disability’; really hard to recognise and therefore difficult to support.

Even for trained professionals recognising SLCN is complex. Justice professionals have little or no training in this area. SLCN are really difficult to identify but it is crucial that we are looking out for them in individuals accessing the justice system as the consequences of not doing so are potentially life changing. There is a huge language load at each step through the system:

• Providing a coherent account at the police station.
• Recalling and repeating that account to your defence team and then again at court, often months apart.
• Navigating new vocabulary and new styles of interaction with new people.
• Simply learning the titles and roles of all the professionals involved in a case can be an onerous task.

Most people can generally learn and retain a new word after hearing and using it around 10 times, whereas people with SLCN may need to hear and use the word over 100 times before it is firmly lodged in their memory . If the legal team can identify any SLCN prior to the court case starting then support can be sought. Evidently this is far easier where pre-existing records are available or SLCN are associated with a more widely understood condition such as autism.

Court is a stressful situation for most and stress can have a negative effect on communication abilities. When we are highly stressed our ability to retain and recall information can become impaired, it can also affect our ability to express ourselves clearly. We may stumble over our words or miss out crucial parts of the story. This may then be interpreted by others as lying, trying to cover your tracks rather than stress. Stress layered on top of SLCN and a new, complex highly verbally mediated, adversarial environment makes for a very difficult experience.

Where support is available, too often there is inequity in the system. Victims and witnesses are allowed to access an intermediary to support their communication. The same law exists for defendants but it has yet to be enacted and therefore getting this support is more difficult. Even for victims and witnesses who are identified as requiring an intermediary a large percentage end up ‘unmatched’ and enter court without help. I recently conducted an assessment with a 50 year old man who had been in and out of prison over the last 20 years. There were a number of court reports from professionals stating that he would be unable to access the trial without support yet he never had an intermediary. From the assessment I conducted he had language skills below the age of criminal responsibility. We are clear that a seven year old cannot be expected to fully understand the court process yet we expect a 50 year old with the language skills of a seven year old to do so?

Even when all parties are aware that an individual has SLCN it doesn’t mean they will automatically know how to alter their language in order to support the individual. Brendan O’Mahony describes a court case in which he acted as an intermediary. A particular challenge was three questions rolled in to one:

"Did she ask you or did you tell her or did it happen in some other way?"

On the surface all of these words look simple enough and it is not overly long BUT the mental gymnastics required to answer the question are immense. There are three questions: Which to answer first? What would a yes or no response mean? Can I even remember all of the parts?

Criminal Practice Directions state that:

The court should ensure, so far as practicable, that the whole trial is conducted in clear language that the defendant can understand and that evidence in chief and cross‐examination are conducted using questions that are short and clear.

Whilst this is a laudable statement, modifications required to ensure that each individual with SLCN can understand will differ and the adversarial nature of the court case requires complex questions to be asked. It is difficult for anyone to make modifications to their normal communication style (spend the day trying not to use a phrase you frequently employ and you’ll see just how difficult it is!). Changes are easily forgotten when there are a million other thoughts going through your mind. Training for all professionals working in court should instil ‘clear language’ from day one for everyone. Court language is strewn with complex constructions; tag questions, double negatives, multi-part questions, long complex narratives which make it very difficult to navigate.

It is not feasible to believe that an intermediary could be provided for every individual with identified SLCN, let alone those with unidentified SLCN. Indeed a recent ruling has suggested an increase in the threshold for defendants to access support from an intermediary. However, professionals do have access to other potential routes to provide support. It is suggested that a Ground Rules Hearing (GRH) is ‘good practice where a witness or defendant has communication needs’. Sadly, when I delivered training to a large group of magistrates less than a third were aware of this option. A GRH, prior to the case starting, allows a space to discuss the client’s SLCN and what level of language would be understood and clear. Even if a GRH is known about and the SLCN identified would the professionals also be aware that support is available to guide these modifications? The advocates ‘Gateway Toolkits’ are an excellent, but underused resource.

On one occasion I was called to reception in the Young Offenders Institution. A young man had arrived and was distraught. He didn’t appear to understand what was going on. Devastatingly for him in his distress and confusion, he thought he had been acquitted and the court van was simply giving him a lift home. That was why, he reasoned, he was the last one in the van. He had, in fact, been sentenced to four years. It is clear that he had not understood court proceedings.

Can we say he had fair and equitable access to justice?