The ability to communicate is a basic human right, but one, which sadly, is not often recognised. Nearly one in ten children have a communication disability. This proportion increases dramatically in vulnerable groups. Most children with learning disabilities have some form of communication difficulty and at least 60 per cent of young offenders have communication difficulties (see Bryan, Freer and Furlong (2007) Language and Communication Difficulties in Juvenile Offenders, IJDLC, 42, 505-520).

A recent survey by the National Association of Probation Officers and Royal College of Speech and Language Therapists (“RCSLT”) revealed that many of those on probation or parole supervision have low educational attainment, learning difficulties, and problems either expressing themselves or understanding what is being said to them.

This means that barristers will encounter a significant proportion of victims, witnesses and defendants with communication difficulties. So it is crucial that such people are identified as early as possible (see “Reading the signs” on p 36).

Other barriers faced by people with learning disabilities include not being believed and not understanding or being understood. As, indeed, is recognised by the extensive work carried out by the Prison Reform Trust (see


Not understood

People with learning disabilities are not likely to understand:

  • “Notice to Detained Persons” at the police station
  • the caution
  • their right to legal advice
  • the criminal justice system process
  • the meaning of some words used (for example, “consequence”, “effective”, “priority”, “categorise”, “negotiation”, “temporary”, “however”, “even though”).

They are also likely to:

  • be easily misled by leading questions, double negatives, embedded phrases in police interview and in court, especially under cross-examination
  • falsely confess because they do not make good decisions in custody
  • be bullied and/or exploited in prison
  • be more unable to plan what to do in the future.

Communication difficulties are often referred to as “hidden disabilities” because they are not obvious in the same way as physical disabilities are.


The role of intermediaries

Among recent and significant improvements for vulnerable victims are special measures, such as intermediaries. Intermediaries can communicate to the witness questions put to the witness, and to any person asking the questions, the answers given by the witness in reply to them. They can also explain such questions and answers so far as necessary to enable them to be understood by the witnesses or person in question. Critically, over 80 per cent of intermediaries are speech and language therapists.

Intermediaries are not there to take over from the police or social workers, but to act as a conduit for communication between a vulnerable witness and those who are examining their evidence. They do not argue the witness’s case or make sure the witness gets the outcome they want. Nor are they an interpreter, an appropriate adult, a witness supporter or an expert witness. They are completely neutral and their responsibility is to the court.

An intermediary needs to assess accurately and quickly an individual’s receptive and expressive communication difficulties; identify what communication strategies need to be employed (such as suggesting changes to the physical environment, or the level and manner of communication to be used); describe clearly to others an individual’s communication difficulties including cognitive ability, sensory impairment, and emotional factors; explain and, where necessary, demonstrate the communication strategies needed to enable an individual to understand and participate; facilitate communication between an individual with communication difficulties and others.
Independent evaluation shows that almost everyone has been impressed with the intermediary scheme. A CPS lawyer says: “My experience with intermediaries has been entirely positive…[Her] report gave a useful insight into the witness’s difficulties and how he needed to be treated. The report also gave the judge the information needed to challenge inappropriate questioning by, in this instance, defence counsel, who asked the exact type of questioning the intermediary said the witness would be unable to answer.”
Other emerging benefits include the potential to assist in bringing offenders to justice, increased access to justice, and assistance in identifying the needs of vulnerable witnesses.

However, even with these advances, the early identification of people with learning disabilities remains a difficult task facing the criminal justice system. As An Evaluation of the Use of Special Measures for Vulnerable and Intimidated Witnesses (Burton, Evans and Sanders) Home Office, 2006 states: “The police continue to experience difficulties in identifying vulnerable and intimidated witnesses (VIW) and the Crown Prosecution Service rarely identify VIWs unless the police have already done so. Often VIWs were first identified by the Witness Service when they arrived at court, making it very difficult to arrange for Special Measures if they are needed.”

This research suggested 24 per cent were probable vulnerable or intimidated witnesses; a considerably larger figure than the 3 to 6 per cent estimated by criminal justice agencies. More needs to be achieved through awareness but this will open up a better road to justice for people and adults with learning disabilities.

Kathryn Stone OBE is the Chief Executive of VOICE UK. Professor Karen Bryan is Head of the Division of Health and Social Care at the University of Surrey


Reading the signs

“Some people with disabilities may have particular difficulties with receiving information, communicating and/or entering into dialogue ... This, however, should not prevent the individual receiving the quality of service that is expected from the police ... We must ensure that these individuals receive equal treatment in the criminal justice system.” (See Vulnerable Witnesses – A Police Service Guide, p 3, para 1.4.)

In order to identify — and assist — defendants with communication difficulties, apply the following checklists.

Does the defendant:

  • lose attention, get restless, become agitated?
  • often seem to agree (nod head)?
  • ask for clarification
  • seem to lack understanding of word meanings?
  • forget instructions?
  • seem confused by non-literal language (“show you the ropes”), sarcasm or jokes?
  • have difficulty thinking of words?
  • talk in short, choppy sentences?
  • have a limited vocabulary (lots of “yes”, “no” and basic words)?
  • have difficulties explaining, or providing details?
  • give up easily when trying to explain something?
  • talk a lot but saying very little (no substance to content)?
  • have difficulties asking questions?
  • have difficulty staying on topic?

If so, and in order to facilitate communication, you should:

  • be a good listener
  • be patient—it’s quicker in the end!
  • observe what helps
  • be alert to frustration
  • look and sound as if you are interested
  • remember how frustrating communication difficulties are
  • not assume the person is being difficult
  • acknowledge the difficulties that the person may be having
  • use gesture, use pen and paper (if they can read)
  • split information into small chunks
  • think how you would like to be spoken to
  • think about the non-verbal signals that you are giving out.

Speaking up for children

The RCSLT supports the extension of the intermediary scheme to defendants with communication difficulties. The RCSLT has set up a Children’s Communication Coalition bringing together national organisations, experts and service users who are speaking out for children with communication disability in the justice pathway. Anyone interested in learning more should e-mail: