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	TX: 16.11.09 - Learning Disabled and Justice PRESENTER: JULIAN WORRICKER WORRICKER Now appearing in court as a witness or worse still a victim is daunting enough as it is but if you're struggling to understand what's going on, through no fault of your own, then it's a much bigger ordeal. An investigation by 麻豆约拍 Scotland has highlighted particular difficulties in the court room for people with learning disabilities. For some it's an issue of understanding the proceedings, others may have trouble communicating. And it's raised the question as to whether some people have learning disabilities that are so severe that they will never see justice done. All this coincides with a summit taking place in Edinburgh, this lunchtime, to explore the problems the justice system poses for people with disabilities. Radio Scotland's correspondent Kenneth MacDonald is on the line. Ken, is there a recognition in Scotland that the system has been failing people with learning disabilities? MACDONALD Yes a couple of high profile cases have acted as a kind of wake up call for the Scottish system, even though progress has been made in the last couple of years some people are still missing out. We've got one example here: Ann's daughter is 30, she has a learning disability and limited communication skills. She was living in a care home where she was sexually assaulted by another resident. It was three days before the crime was reported and almost three months before police interviewed her alleged attacker. Well the police have since apologised and the care home has reached an out of court settlement with Ann but her daughter never got her day in a criminal court because it was decided her disability would make her an unreliable witness. ANN Well I feel that the message here is that if you have a disability people can just do what they like and nothing will ever happen and I don't see how you can ever have any recourse to the law if they're continually saying that you're not a credible witness. We know that the police have been able to get evidence from a two year old child, I think there are - there must be something that could be set in place in order that people like our daughter are protected because at the moment they can't be because there doesn't seem to be anything in place for them to access justice. WORRICKER Now you would hope that that was an isolated case. MACDONALD It's an extreme case but it's certainly not unique and the forensic and clinical psychologist, Professor Bill Lindsay, fears some people will always be denied justice. LINDSAY The clearest example is somebody who's been a victim of a severe assault or a sexual assault but when they're assessed and when they're interviewed about it their intellectual disability, their learning - their limitation mean they are so inconsistent in their account of the various events that the consistency of the narrative is not sufficient to be sound evidence against somebody. And under any justice system anybody who's accused of a crime would have to have consistency of the accusation. And so in these circumstances I think with the best will in the world very difficult to actually prosecute the circumstances of it. MACDONALD Not everyone agrees with that though. Norman Dunning is chief executive of the learning disability charity Enable Scotland. DUNNING If somebody is a citizen they have a right to be protected by the law and I think it's incumbent upon all of us, whether we're from the learning disability side of things or from the criminal justice, to strive as hard as we can to find the means for people to communicate and it's up to us to hear them and pick up the messages. WORRICKER Presumably there are human rights implications here? MACDONALD Well indeed there are and indeed also the whole question of people with severe learning disabilities but not just them with people who are less seriously affected as well and there are still problems there too. We've spoken to a wide range of people with learning disabilities - people who didn't understand, who weren't helped to understand their rights as victims or as the accused. And one particularly sad case was the couple who say they couldn't understand what was happening during a children's hearing and that was a process that ended in them losing custody of their daughter. The Scottish Justice Secretary Kenny MacAskill, who's been at the Access to Justice conference and delivering an address to us, says he wants to continue improving protection and support for victims and witnesses with learning and indeed other disabilities. WORRICKER Kenneth MacDonald thank you very much. If you'd like to hear the full investigation by Kenneth it's available on the 麻豆约拍 iPlayer, you can find it at the Radio Scotland website, on the Morning Extra programme there. Kathryn Stone was listening to Ken, from Voice UK, that's a national charity which supports people with learning disabilities, and clearly these problems, Katherine, go beyond Scotland. STONE Absolutely, they are the same in England and Wales, we're not able to say, obviously, with any reliability the extent of crimes against people with learning disabilities, in the same way as we can't say how many people are victims of rape or domestic violence, but we do know that very many people with learning disabilities are victims of crime and are less likely to be able to access the criminal justice system. WORRICKER As an example of this I was struck particularly by the case of James Watts. Just tell us what happened there. STONE Absolutely disgraceful breach of trust. James Watts was a worker in a care home for severely disabled adults and he's recently been jailed for 12 years. In that case he must have thought that he had the perfect victims - the women that he sexually assaulted were physically disabled, they had learning difficulties and they had a very limited ability to communicate. In that case an intermediary was used - an officer of the court - who supported those women to give their evidence in ways that previously we would not have imagined, they were able to blink answers yes or no to questions. And on the strength of their evidence and the determination of the police and all concerned in the criminal justice system he was convicted of those crimes and he's now just begun a 12 year sentence. WORRICKER It is an extraordinary case. What lessons, do you think, can be learned from that? STONE I think that we need to, as Norman Dunning has said, accept and understand that people with learning difficulties, as everyone else, has a right to access the criminal justice system. If we don't have justice for people with learning difficulties then we don't really have a justice system at all. WORRICKER But when you look specifically at that case you mentioned the role of the intermediary, for example, is that something that could be used more widely and how much difference would it make if it were? STONE I think the intermediary scheme is a scheme that does need to be used much more widely, it's a real way of facilitating communication for those with learning difficulties or communication impairments to understand the questions that are being put to them by the court and for the court to understand the responses that the victim or witness is giving in return. WORRICKER And also the other side to this, as a final thought, I mean Kenneth MacDonald touched on the human rights issues, there are human rights issues as well aren't they for an accused person in a trial like this? Yes of course those with learning disabilities must have their say but the trial has still ultimately got to be fair. STONE Absolutely, no one's suggesting that the criminal justice system should be skewed in favour of victims but what we're calling for and what we've been saying for a very long time is that people with learning difficulties have the right to have equal access to that criminal justice system whether they're victims or whether they're defendants and special measures, I understand, are to be brought in for defendants also so that they can have a greater understanding of the proceedings that they're a part of. WORRICKER Thank you very much for coming on the programme - Kathryn Stone from Voice UK.

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