Photo: Rikki Mawad, Professor Terese Henning, and colleague Kate Brown.
The ability of people to communicate effectively with police, with lawyers and in court will fundamentally determine whether they gain access to justice and whether justice can in fact be done.
While we would like to believe that our justice system is universally accessible, people with communication needs arising from age, disability, trauma, development or language and literacy continue to face significant barriers to participating in justice processes. From first contact with police or justice agencies to seeking advice from lawyers through to testifying in court, the justice system is based on the ability of an individual to give a competent, reliable, oral account of their story and to understand what is happening.
In a system that is challenging even for skilled communicators, the barriers faced by young children, by a person with an intellectual disability, someone with an acquired brain injury or someone experiencing speech, learning and language difficulties are even greater.
The ability to communicate is critical to a complaint being investigated, a witness giving key evidence and a suspect or accused person understanding the charges against them and telling their story. Often this perceived inability of a person with communication needs to be a ‘reliable witness’ or to ‘withstand the rigours’ of a trial has meant people with communication needs who have been the victim of a crime may not have their case prosecuted and those who are suspected of or accused of a crime may not receive a fair trial.
Excluding people who aren’t considered able to ‘communicate’ the way the system requires them to means that people with communication needs can be open to predation by perpetrators who know that they won’t be able to ‘tell’ police, lawyers and the courts what happened or that they would not be believed. On the other hand, suspects and people with communication needs accused of a crime may not understand or be able to provide an explanation to police and lawyers, denying them the ability to receive a fair trial. These systemic barriers to universal communication have in part also led to the criminalisation of disability and the overrepresentation of people with communication needs in prison systems that are ill-equipped to support them.
Established conventions in legal practice also exclude people with communication needs from equal access to justice and can lead to increased trauma and re-victimisation. The antiquated notions that children tell lies or that people with intellectual disabilities aren’t capable of giving reliable evidence are slowly being challenged alongside the practice of shredding witnesses over days in cross-examination. Yet while the law, policy and practice are slowly changing, the ability to communicate remains the heart of access to justice.
Acknowledging the importance of communication, reforms such as those recommended by the Tasmania Law Reform Institute’s Final Report No. 23 such as the introduction of an intermediary/communication assistant scheme are the key pillars to building a universally accessible system.
The Institute recommends that communication expert/intermediaries be used within the criminal justice system to assist victims, witnesses and defendants to communicate with police, lawyers and the courts. These communication experts aren’t advocates; they act as independent quasi-translators for people with communication needs in their interactions with the justice system. These experts can also provide advice to police, lawyers and judges about how to tailor interactions to ensure proceedings and questions match a person’s communication needs.
The Institute recommends using communication assistants/intermediaries as part of a package that includes police investigative interviewing that is adapted to the communication needs of interviewees, the use of pre-trial directions hearings and the pre-trial pre-recording of evidence.
When used effectively, the Institute reports that a best-practice package of communication measures not only improves access to justice for people with communication needs, it can reduce trial times, particularly the length of cross-examination. In England and Wales for example, where intermediaries have been used for over two decades, experiences show that when used in conjunction with pre-trial directions hearings and pre-recording, the average cross-examination times have been reduced from hours or sometimes even days to 15–20 minutes.
The Institute’s report and recommendations were given to the Tasmanian Government in December 2017 and are consistent with those measures outlined in Tasmania’s Disability Justice Plan and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The Institute welcomes renewed emphasis on measures to improve access to justice for people with communication needs as part of this symposium.
Professor Terese Henning is the Director of the Tasmania Law Reform Institute (TLRI) and one of Australia’s foremost experts on evidence law. Rikki Mawad, until recently, has been Assistant Director at TLRI. Here they write for the Communicating: The Heart of Literacy initiative – find more at chattermatters.com.au.
This article was first published in The Mercury on 13th April 2018.