Communication Barriers in the Criminal Courts of England and Wales: Experiences of Defendants with Mental Health Conditions or Learning Disabilities

Abstract

In recent years, the need to provide communication support for defendants with mental health conditions or learning disabilities in criminal cases has received increased attention in international, regional and domestic law. However, defendants in England and Wales have inconsistent access to this type of support. Furthermore, limited empirical research has examined this category of defendants’ experiences and the barriers that hinder their access to communication support in criminal court proceedings. This paper addresses this gap by investigating the experiences of former defendants in England and Wales and analysing the findings from a human rights perspective. Drawing on telephone and group interviews, it examines the extent to which these individuals accessed communication support and the barriers they encountered. Most participants reported receiving no communication support to help them understand what was happening or being said in court. Five key barriers were identified: professional knowledge gaps; stigma and discrimination; absence of a formal diagnosis; the speed of court proceedings; and inequalities in statutory provisions. Addressing these barriers is essential not only for ensuring equal access to justice in criminal courts in England and Wales but also for advancing the broader principles of inclusion and disability rights in legal systems worldwide.

1. Introduction

In recent years, there has been growing recognition, both internationally and domestically, of the need to provide communication support to defendants with mental health conditions or learning disabilities. This is partly due to its repeated mention in the jurisprudence of Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) (United Nations 2006) and Article 6 of the European Convention on Human Rights (ECHR) (Council of Europe 1950). Alongside these developments, England and Wales have introduced support measures, intermediaries and procedural adjustments, aimed at ensuring effective communication in criminal court proceedings. Such support can reduce the risk of defendants with mental health conditions or learning disabilities being found unfit to plead (Gooding and O’Mahony 2016) or wrongfully convicted (Giuffrida and Mackay 2021). However, the absence of this support can place them at a significant disadvantage, reducing the likelihood of a fair, just and appropriate outcome (O’Mahoney 2012; Giuffrida and Mackay 2021). Therefore, it is essential to provide such support where needed to protect their right to access justice, particularly the right to a fair trial (Giuffrida and Mackay 2021). Despite this, research has shown that access to intermediaries has been inconsistent, and procedural adjustments are rarely made in cases involving defendants with mental health conditions or learning disabilities (Howard et al. 2015; JUSTICE 2017; User Voice 2021). However, there is limited research on the barriers to accessing intermediaries or procedural adjustments.

Although precise numbers are unknown, it is generally acknowledged that the prevalence of people with mental health conditions or learning disabilities who come into contact with the criminal justice system is higher than in the general population. Research evidence on the situation in the UK and internationally suggests that they are overrepresented in police detention and the prison population (National Institute for Health and Care Excellence (NICE) 2017; Talbot and McConnell 2017; Criminal Justice Joint Inspection 2021). Recent research also suggests that they are overrepresented among those who attend criminal court proceedings (Brown et al. 2022). This has raised concerns that the criminal justice system is failing to identify and address their support needs (Brown et al. 2022; Howard et al. 2015).

Research about the support needs of people with mental health conditions or learning disabilities who come into contact with the criminal justice system highlights many barriers to communication, such as complex questioning, legal language, and the court environment (Ericson and Perlman 2001; Finlay and Lyons 2002; Kebbell et al. 2001; Kebbell et al. 2004; Morrison et al. 2019; Murphy and Clare 2006; Talbot 2008; Talbot and McConnell 2017). However, most of this research has been laboratory-based, using methods from experimental psychology (Morrison et al. 2021). Empirical research involving actual witnesses or defendants with mental health conditions or learning disabilities is sparse. In particular, there is a notable lack of recent empirical research on the experiences of defendants with mental health conditions or learning disabilities in court settings. Moreover, individuals with mental health conditions or learning disabilities have historically been absent from this type of research (Morrison et al. 2021; Turner and Hughes 2022; Wilkinson et al. 2023). With the exception of research conducted for the Prison Reform Trust’s ‘No One Knows’ project (Talbot 2008), most research (Equality and Human Rights Commission 2020; Gormley and Watson 2021; KeyRing 2021; User Voice 2021; JUSTICE 2017) involving individuals with mental health conditions or learning disabilities gives limited attention to the nature of communication support available in court settings and the barriers to accessing this support. This study therefore aims to address this gap by examining the communication support available to defendants with mental health conditions or learning disabilities in court settings, and by exploring the barriers that hinder their access to such support.

In this regard, this research critically analyses the communication support available to adult defendants with mental health conditions or learning disabilities at Magistrates’ and Crown Courts in England and Wales. It focuses on the type of support defendants can receive in preparation for and during court proceedings. While there are differences in how Magistrates’ and Crown Courts arrange and provide support to defendants, these differences are not the focus of this research. However, some of these differences are mentioned where the context requires. This research also does not focus on the issue of fitness to plead (the defendants’ capacity to stand trial), which has been subject to extensive scrutiny and comment in recent years (see Brown 2019; Law Commission 2016; Mudathikundan et al. 2014; Shah 2012; Rogers et al. 2009).

Regarding terminology, the term ‘communication support’ refers to any assistance required to ensure understanding and the ability to give evidence in court. This includes emotional support provided to reduce anxiety, as anxiety may impact an individual’s ability to follow what is happening and give evidence in court. This paper focuses on the lived experiences of former defendants with mental health conditions or learning disabilities, with people with learning disabilities including those with autism. It is recognised that this is controversial as a learning disability and autism are not the same (Talbot and McConnell 2017). However, these two impairments are combined here primarily because people with these impairments may face similar barriers to their effective participation in a criminal trial. Another reason for combining these two impairments is that many people with learning disabilities also have autism, something which is referred to as co-morbidity (Talbot and McConnell 2017). Accordingly, the support needs of people with autism are usually included within the provisions for people with learning disabilities. For example, autism is categorised as a learning disability under the Ministry of Justice’s Witness Intermediary Scheme (Ministry of Justice 2023). Finally, this paper uses the term ‘disabled people’ to refer to people with impairments in general for two reasons. First, in this paper it is the term that is commonly used in England and Wales, the location of this study. Second, following the social model of disability, it reflects the idea that society disables people with impairments (Peers et al. 2014; Best et al. 2022). However, the term ‘people with disabilities’ is maintained in direct quotes and titles of laws and policies.

2. Human Rights Framework

This section discusses the human rights standards that will be used to evaluate the support defendants can access and the barriers that hinder their access to this support. It draws these standards from the CRPD, the ECHR, EU law, and the UK Equality Act.

2.1. The CRPD

The CRPD was the first international human rights treaty to explicitly and formally recognise disabled people as active holders of rights, rather than as objects of charity or welfare, (Degener 2016) and to apply human rights standards to their specific circumstances (Njelesani et al. 2012). It also embeds the social model within a broader rights-based framework (Degener 2016; Lawson and Beckett 2021). The Convention is thus recognised as an authoritative reference point for developing and refining disability law and policy (American Bar Association n.d.). This is attested by its broad ratification. As of 31 August 2025, 185 countries, including the UK, and the EU had ratified the CRPD (OHCHR 1996–2024). By ratifying the CRPD, these states and regional body assumed obligations and duties to respect, protect, and fulfil the rights of disabled people enshrined in the CRPD.

As the lead in disability-specific human rights articulation, the CRPD affords disabled people the most comprehensive protection of their right to access justice compared to other human rights instruments (Masendeke 2020; Flynn 2015). It also provides the most comprehensive and binding commitment to ensuring communication support for disabled defendants in criminal proceedings. Article 13 requires States Parties to ensure effective access to justice for disabled people, including through the provision of procedural accommodations and training for justice system personnel. In the International Principles and Guidelines on Access to Justice for Persons with Disabilities, procedural accommodations are defined as “all necessary and appropriate modifications and adjustments in the context of access to justice, where needed in a particular case, to ensure the participation of persons with disabilities on an equal basis with others” (OHCHR 2020, p. 9). Thus, procedural accommodations should facilitate the effective role of disabled people as “direct” and “indirect” participants in all stages of legal proceedings (art. 13(1)).

These procedural accommodations include independent intermediaries or facilitators who provide communication assistance to the parties to the proceedings, the implementation of necessary procedural adjustments and modifications, adjustments to the environment, and communication support (OHCHR 2020, para 3.1). All these procedural accommodations can help address the barriers that may hinder defendants with mental health conditions or learning disabilities from understanding what is happening or communicating effectively in court. In doing so, they promote core CRPD rights, including equality and non-discrimination (art. 5), accessibility (art. 9), legal capacity (art. 12), and access to information (art. 21) within the criminal justice system.

Furthermore, there is an overlap between obligations to provide procedural accommodation under Article 13 and reasonable accommodation under Article 2. The CRPD defines reasonable accommodation as:

“necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

(art. 2)

Flynn and Lawson (2013) note that, in the context of access to justice, reasonable accommodation “requires an adjustment to standard practice or procedure in order to remove a particular disadvantage at which a specific disabled person would otherwise be placed in their attempt to access justice” (p. 25). The South Australian Law Reform Institute (2021) also notes that making reasonable accommodation includes ensuring that individuals have both knowledge of and access to communication assistance.

However, while the obligation to provide procedural accommodations only applies in the context of access to justice and the latter obligation to provide reasonable accommodations is a cross-cutting duty, both obligations are individual-oriented obligations which should be implemented “where needed in a particular case” (CRPD Article 2; OHCHR 2020, p. 9). Furthermore, unlike reasonable accommodations, procedural accommodations are not limited by the concept of “disproportionate or undue burden” or subject to a proportionality test (OHCHR 2020, p. 9; OHCHR 2017, para. 25). The Office of the United Nations High Commissioner for Human Rights (OHCHR 2016) notes that this is the case because access to justice is indispensable to the realisation of all other human rights. Despite these differences, the failure to provide either type of accommodation amounts to disability-based discrimination (CRPD art. 2; OHCHR 2016, paras. 27 and 35). Both obligations are therefore necessary to guarantee equality and non-discrimination in the context of access to justice. This extends to meeting the communication support needs of defendants with mental health conditions or learning disabilities within the criminal justice system.

The obligation to provide training for justice system personnel is also relevant to meeting these needs. This obligation requires all justice system personnel to be trained on the rights of disabled people, ensuring that training programmes are comprehensive and cover subjects such as “[c]ommunication skills, including identifying the need to engage experts for communication assistance” and procedural and reasonable accommodations (OHCHR 2020, paras. 10.2(j)(vi), (viii) and (ix)). This should be done to raise awareness of the communication support needs of defendants with mental health conditions or learning disabilities during criminal court proceedings and to address attitudinal barriers that may hinder the provision of this support. This also fulfils the CRPD’s wider obligations on awareness-raising under Articles 8 and 4(1)(i).

2.2. The ECHR

The ECHR is an international treaty that protects the human rights and political freedoms of people in countries that are members of the Council of Europe (Ministry of Justice 2022; Equality and Human Rights Commission 2017). It guarantees them specific rights and freedoms (Equality and Human Rights Commission 2017), including the right to a fair trial under Article 6. Article 6(3) stipulates the ‘minimal rights’ for defendants involved in criminal proceedings, including the right to be informed of the charges, adequate time to prepare a defence, legal assistance or an interpreter, and the right to question witnesses. As these ‘minimal rights’ are the prerequisites of a fair trial for a defendant, Talbot and Jacobson (2010) argue that these rights are violated in cases where defendants with learning disabilities experience barriers to understanding and participating in the trial and no support is provided to address these barriers.

The jurisprudence of the European Court of Human Rights (ECtHR) affirms that Article 6 guarantees defendants the right to participate effectively in their criminal trial, and that this encompasses the ability to understand and participate effectively in legal proceedings (Stanford v UK, para. 26; SC v UK, para 28). The Court has held that failure to ensure such understanding may constitute a violation of this right. In SC v UK, for instance, the Court ruled that the trial of a child with a learning disability had not been fair because he could not comprehend the proceedings or defend himself effectively. The Court explained that “effective participation” means that defendants should have a “broad understanding” of the proceedings and their consequences, including the significance of any potential penalties (para. 29). In both Stanford v UK and T and V v UK, the Court recognised that the court environment may affect defendants’ ability to participate effectively in court proceedings, potentially leading to a violation of Article 6 (Stanford v UK, para. 29; T and V EHCR 1999 (European Court of Human Rights 1999); Eldergill 2019).

In T and V v UK and SC v UK, the Court held that in cases involving child defendants, courts should take full account of their age, level of maturity and intellectual and emotional capacities, and ensure that steps are taken to facilitate their understanding and participation in the proceedings (European Court of Human Rights (1995), T and V (2000) 30 EHRR 121, paras 83–86; SC, para 28). To this end, assistance may be provided by a lawyer, interpreter, social worker, or another trusted individual (SC, para 29). As Fortson (2015) argues, although these principles were established in the context of juvenile defendants, the Court did not limit their application to children. Indeed, they are equally relevant in cases involving adult defendants with mental health conditions or learning disabilities.

Collectively, these cases establish that, under Article 6, domestic courts have a positive obligation to identify and address any barriers that may affect a defendant with mental health conditions or learning disabilities’ ability to hear and follow court proceedings or give evidence in court. Where necessary, this may involve arranging for an interpreter, lawyer, social worker or friend to support a defendant to ensure they can follow the proceedings and participate effectively.

Beyond Article 6, the non-discrimination provisions under Article 14 of the ECHR and Article 1 of Protocol No. 12 to the Convention (Council of Europe 2000) are relevant to the provision of communication support in criminal proceedings. Case law affirms that these provisions prohibit disability-based discrimination (Glor v Switzerland (European Court of Human Rights 2009); Kiyutin v Russia (European Court of Human Rights 2011); IB v Greece (European Court of Human Rights 2013), including the denial of reasonable accommodation (Glor v Switzerland (European Court of Human Rights 2009); Çam v Turkey (European Court of Human Rights 2016a); Guberina v Croatia (European Court of Human Rights 2016b)). In Kiyutin v Russia (European Court of Human Rights 2011) and IB v Greece (European Court of Human Rights 2013), the Court also recognised that social barriers and stigma prevented the appellants from enjoying their rights. Although there is limited case law directly addressing reasonable adjustments in court settings, well-established precedents like Glor v Switzerland (European Court of Human Rights 2009), Çam v Turkey (European Court of Human Rights 2016a), and Guberina v Croatia (European Court of Human Rights 2016b) affirm that states must consider the specific and individual situation of people with specific impairments and make reasonable accommodations in specific contexts. Applied in legal contexts, this means that courts should consider the specific and individual situation of defendants with mental health conditions or learning disabilities and make reasonable accommodations to ensure that they can understand and participate effectively in criminal proceedings.

The UK is a member State of the Council of Europe, and the Human Rights Act 1998 made ECHR rights enforceable in UK courts (Human Rights Act 1998, s. 2). Therefore, courts and tribunals in England and Wales must act compatibly with ECHR rights (Human Rights Act 1998, s. 6), including Article 6.

2.3. EU Law

This section explains the standards set out under EU law. It focuses on three instruments aimed at strengthening the procedural rights of suspects and defendants in criminal proceedings—Directive 2010/64/EU on the right to interpretation and translation (European Parliament and Council of the European Union 2010), Directive 2012/13/EU on the right to information (European Parliament and Council of the European Union 2012), and the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (European Commission 2013).

The first directive extends the duty to provide interpretation in criminal proceedings to providing “appropriate assistance for persons with hearing or speech impediments” (art. 2(3)). It also requires legal professionals to consider the needs of “vulnerable persons”, including “any potential vulnerability that affects their ability to follow the proceedings and to make themselves understood” (recital 27). This includes suspected or accused persons who are “in a potentially weak position, in particular because of any physical impairments which affect their ability to communicate effectively” (recital 27). This arguably includes defendants with mental health conditions or learning disabilities, although it is not explicitly stated. These measures should be implemented throughout the entire criminal proceedings (art. 1).

The second directive requires member States to ensure that suspected or accused persons are promptly informed about certain procedural rights (art. 3(2)). This information should be provided “orally or in writing, in simple and accessible language” (art. 2(3)) and in “non-technical language” (recital 38). The directive also requires competent authorities to pay particular attention to persons “who cannot understand the content or meaning of the information, for example because of their youth or their mental or physical condition” (recital 26). Those with a mental condition arguably include defendants with mental health or learning disabilities.

The Commission Recommendation encourages “Member States to strengthen the procedural rights of all suspects or accused persons who are not able to understand and to effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities” (recital 1). It further recommends foreseeing a presumption of vulnerability in particular for persons with serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders, hindering their understanding and effective participation in the proceedings (sec. 3(7)). The reference to these impairments indicates that the instrument covers defendants with mental health conditions and learning disabilities. It recommends the prompt identification and recognition of such persons and their specific needs (sec. 3(4)), and to be involved in legal processes (e.g., trials, hearings, investigations) in a way that is in their best interest. It further recommends that such persons to be given appropriate assistance and support (sec. 3(10)) throughout the entire criminal proceedings (sec. 1(2)).

In summary, these three instruments require EU Member States to ensure the provision of communication support to defendants with mental health conditions and learning disabilities in criminal proceedings. While the UK left the EU on 31 January 2020, these measures are still relevant to how the UK operates as they were preserved in UK domestic law through the European Union (Withdrawal) Act 2018 with an aim to ensure legal continuity and avoid a legal vacuum (Slowe 2017; Blackstock 2018).

The CRPD, ECHR and EU instruments just discussed collectively promote the provision of communication support to defendants with mental health conditions and learning disabilities through obligations to ensure a fair trial and effective access to justice. It is also important to note that CRPD principles reinforce and deepen the standards drawn from ECHR case law and EU instruments. Finally, while the CRPD, ECHR, and EU directives are binding, the Commission Recommendation is not.

2.4. The UK Equality Act

The Equality Act 2010 represents a comprehensive legislative framework that consolidates and harmonises existing anti-discrimination laws in the UK (Government Equalities Office 2008; UK Government 2010). It prohibits discrimination in employment, the provision of services, and the exercise of public functions based on of nine protected characteristics, one of which is disability. Section 6 of the Act defines “a person who has a disability” as someone who “has a physical or mental impairment” which “has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities” (sec. 6). This definition is intended to clarify who qualifies as a disabled person and is protected under disability discrimination law (Lawson 2011). The Government’s guidance on the Act specifies that the phrase “physical or mental impairment” encompasses a broad range of impairments, including learning disabilities and mental health conditions (Office for Disability Issues 2011, para. A5). As HM Courts and Tribunals Service, and the wider judicial system, are classified as public authorities under the Act, defendants with mental health conditions or learning disabilities are therefore legally protected under its provisions.

Section 20 of the Act imposes a duty on service providers and public bodies to take “such steps as it is reasonable to have to take” to prevent disabled people being placed at a “substantial disadvantage” compared to non-disabled individuals. These disadvantages are to be addressed by altering provisions, criteria, or practices; altering, removing, or circumventing physical features; and providing auxiliary aids. Section 21 of the Act specifies that a failure to comply with this duty will amount to discrimination. This means that courts should make reasonable adjustments and alter court procedures to ensure that defendants with mental health conditions or learning disabilities can understand court proceedings and communicate effectively during criminal court proceedings, and that failure to do so may amount to discrimination.

Furthermore, while the reasonable adjustment duty is framed as a responsive duty for employers and exam providers (ss. 3(3)–(5)), it is framed as an anticipatory duty for other private and public institutions, including courts and other service providers in the legal system (ss. 20–22, Schs. 2–3). This means that courts and other service providers in the legal system should consider the support needs of disabled people in advance and on an ongoing basis and make reasonable adjustments accordingly (Equality and Human Rights Commission 2015; Equality and Human Rights Commission 2018). Although there is limited case law directly on reasonable adjustments in court settings, well-established precedents like Archibald v Fife Council (House of Lords 2004) and Paul v National Probation Service (Court of Appeal (Civil Division) 2003) affirm that organizations must actively explore and implement adjustments when impairments affect access or participation.

In conclusion, defendants with mental health conditions or learning disabilities are protected by the Equality Act 2010. Courts and tribunals must anticipate needs and provide reasonable adjustments to meet their support needs. By imposing an anticipatory duty to provide reasonable adjustments, the Act goes beyond the CRPD’s responsive approach. As Lawson (2011) notes, anticipatory duties have greater potential to drive systemic change, as they encourage courts to develop support measures aimed at groups rather than only at individuals. However, in practice, reasonable adjustment measures must be both anticipatory and reactive to address the diverse and individualised support needs of disabled people. This dual approach reflects the overlap between accessibility, reasonable accommodation, and procedural accommodation duties under the CRPD, and is essential to ensuring the effective participation of defendants with mental health conditions or learning disabilities in criminal proceedings.

3. Methods

This paper is based on the author’s doctoral research, which focused on meeting the communication support needs of defendants with mental health conditions or learning disabilities in England and Wales. The research was carried out between 2019 and 2024, with the aim of increasing understanding of three key issues: the nature of communication support required under international human rights law; the extent to which this support is available in England and Wales; and the specific barriers that hinder access to it. It also aimed to propose recommendations for improving defendants with mental health conditions or learning disabilities’ access to such support.

The research adopted a socio-legal research design, combining doctrinal research, document analysis, and empirical data collection. The doctrinal research involved analysing the UK’s obligations under international and regional human rights law, particularly the CRPD, the ECHR and EU law. It also involved analysing the scope of domestic legislation and guidance in England and Wales. This included a review of the provisions for reasonable adjustments under the Equality Act 2010, as well as guidance for the appointment of intermediaries and provision of procedural adjustments in case law, criminal procedural rules, and criminal practice directions. This was supplemented by a review of secondary sources including the Equal Treatment Benchbook (Judiciary of England and Wales and Judicial College 2023, 2025), academic literature, and NGO reports. The findings of the doctrinal analysis are presented in Section 2 and Section 4.

Document analysis was conducted on the Concluding Observations of the Committee on the Rights of Persons with Disabilities (hereafter, the CRPD Committee or Committee) to interpret how the Committee expects State Parties to implement Article 13, particularly in criminal justice contexts involving defendants with mental health conditions or learning disabilities. The findings of the document analysis are not discussed in this paper because they are beyond its scope.

Empirical data were collected through two one-to-one telephone interviews with former defendants, an in-person group interview with seven additional former defendants, and an online focus group involving five court-approved intermediaries and a senior representative from a charity supporting individuals with learning disabilities and autism in the justice system. This paper only presents the findings from the one-to-one and group interviews with former defendants, which focused on their lived experiences.

The following provides a profile of the former defendants who participated in the interviews. All participants were adults who identified as having learning disabilities (3), mental health conditions (2), autism (1), both mental health conditions and learning disabilities (2), or both mental health conditions and autism (1), who came from different cities across England and Wales. The participants reported that they had last appeared in court between 2 and 30 years before the interview; two participants had last appeared 4 years ago, two 20 years ago, and two 30 years ago, while the others reported 2, 13, and 15 years, respectively. While five participants reported that their cases had been heard in both the Magistrates’ Court and the Crown Court, four participants reported that their cases had been heard only in the Magistrates’ Court. In addition, some of the participants had attended court as a defendant in multiple cases.

The identification, recruitment, and interviewing of one-to-one and group interview participants were conducted differently, with gatekeepers involved at various levels. The one-to-one interview participants responded to a call for participants that a gatekeeper posted in a network newsletter. Initial emails to these individuals focused on confirming their eligibility and identifying their support needs, particularly whether they required documents in Easy Read format or a support person to attend the interview with them. Both participants indicated that they did not require such support.

Follow-up emails included an information sheet explaining the aims and objectives of the study, the voluntary nature of participation, the procedures for anonymity and confidentiality, the right to withdraw from the study, and details regarding data storage and use. Consent forms were also shared with potential participants at this stage. Verbal consent was obtained and recorded at the beginning of the interview. Responses to interview questions were recorded in a separate file. The author conducted both interviews in October 2021 at an office in the Liberty Building, School of Law, University of Leeds. The interviews lasted for 40 and 60 min, respectively, and were completed in one sitting without a break.

The group interview participants were identified and recruited with the assistance of a gatekeeper, who invited them to take part in the research. This approach was necessary as some of the potential participants had no or limited access to emails. On the day of the interview, participants were provided with information sheets and consent forms in Easy Read format, which were further explained to ensure understanding. All participants gave informed consent by signing the consent form before the interview began.

The in-person interview took place in March 2022 at a government office building in Birmingham and lasted 1 h and 15 min. It was completed in one sitting without a break. Two representatives from the gatekeeper organisation attended as co-facilitators, offering communication and emotional support throughout. Their involvement helped clarify questions and encouraged participants to share relevant and detailed responses.

Both the one-to-one interviews and the group interview were semi-structured. Two different topic guides were used—one for the one-to-one interviews and another for the group interview. This was due to a change in the research focus that occurred after the one-to-one interviews had been conducted. Each topic guide contained open-ended questions and sub-questions designed to elicit in-depth data. Given the exploratory nature of the research, semi-structured interviews were particularly appropriate, as they allowed the researcher to prompt participants and probe more deeply into the details of their experiences of going to court (Kajornboon 2005).

Although the topic guides differed, participants in both formats discussed similar themes. They spoke about their experiences of attending court, the extent to which they received communication support before, during, or after court proceedings, and the barriers they encountered in accessing such support. Participants also offered suggestions on how to improve access to communication support for defendants with mental health conditions or learning disabilities.

Ethical approval for this research was granted by the University’s Research Ethics Committee in February 2021.

The data from the one-to-one interviews and the group interview were transcribed and analysed using thematic analysis following Braun and Clarke’s six phases (Braun and Clarke 2012). Thematic analysis is a method used to establish patterns and connections in research data (Braun and Clarke 2012; Fossey et al. 2002). This enables the researcher to ‘see and make sense of collective or shared meanings and experiences’ (Braun and Clarke 2012, p. 57). In this research, thematic analysis was thus used to identify patterns and connections in the data.

4. Relevant Laws and Guidance

This section outlines and discusses the law and guidance concerning the provision of communication support to defendants with mental health conditions and learning disabilities in England and Wales. It focuses on the law and guidance concerning the provision of intermediary assistance and procedural adjustments to vulnerable witnesses and defendants.

Intermediaries were introduced under the Youth Justice and Criminal Evidence Act 1999 (YJCEA) to assist vulnerable or intimidated witnesses in giving their best evidence in criminal proceedings by facilitating communication between the witness and the court. Under the Act, adult non-defendant witnesses with mental health conditions or learning disabilities are eligible for this support, whereas defendants with the same impairments are not (YJCEA 1999 (UK Government 1999), s. 16(1)). Section 104 of the Coroners and Justice Act (2009) sought to address this disparity by extending eligibility to defendants; however, this section of the Act has not yet been implemented. Existing literature suggests that this may be due to insufficient resources to support both non-defendant witnesses and defendants under the Ministry of Justice Witness Intermediary Scheme (Royal College of Speech and Language Therapists 2012). This national scheme operates a register of intermediaries and matches them with victims and non-defendant witnesses who need communication support at the police station or at court.

Although defendants are not statutorily entitled to intermediary assistance, courts sometimes use their inherent powers to appoint intermediaries for defendants in the interest of fairness (see caselaw below). This practice began with the decision to allow a support person to assist a defendant with communication in R v SH (England and Wales Court of Appeal (Criminal Division) 2003), and later, the appointment of an intermediary in C v Sevenoaks Youth Court (England and Wales High Court (Queen’s Bench Division) 2010, para. 17). Later, case law emphasises that intermediaries should only be appointed when it is necessary to achieve a fair trial (Great Yarmouth Youth Court (England and Wales High Court (Administrative Court) 2011), para 6; R v Cox (England and Wales Court of Appeal (Criminal Division) 2012), para. 29), and restricts the frequency and duration of such appointments (R v Rashid (England and Wales Court of Appeal (Criminal Division) 2017) para 73; R v Biddle (England and Wales Court of Appeal (Criminal Division) 2019); R v Thomas (England and Wales Court of Appeal (Criminal Division) 2020)).

As the practice has continued, the Criminal Practice Directions (CPD) and the Criminal Procedure Rules (CrimPR) have explained relevant guidelines. Both instruments govern the practice and procedure to be followed in all criminal courts including Magistrates’ Courts, Crown Courts, Court of Appeal (Criminal Division) and in extradition appeal cases before the High Court (Youth Justice Legal Centre 2021).

CrimPR 2025 confirms that courts may appoint an intermediary to assist a vulnerable defendant under the inherent jurisdiction of the court (HM Courts and Tribunals Service 2025, r.18.23). It defines an intermediary as a person who is “asked to assess a defendant’s communication needs” and “appointed by the court to facilitate a defendant’s effective participation in the trial, when the defendant gives evidence or at any other time, where otherwise that defendant’s communication needs would impede such participation” (HM Courts and Tribunals Service 2025, r.18.3(a)(iii)–(iv)). The court may direct the appointment of an intermediary to assist a defendant when giving evidence only or for the entire trial (HM Courts and Tribunals Service 2025, r.18.27(3); HM Courts and Tribunals Service 2023, para. 6.2.6).

In addition to helping defendants communicate with the court, an intermediary may also assist a defendant in communication with their representative (HM Courts and Tribunals Service 2025, r.18.23(4); HM Courts and Tribunals Service 2023, para. 6.2.1). Those who are eligible for this support include adult defendants whose ability to participate effectively in court “is likely to be diminished by reason of … mental disorder … [or] a significant impairment of intelligence and social function” (HM Courts and Tribunals Service 2025, r.18.23(a)(ii)). This covers defendants with mental health conditions or learning disabilities. Thus, adult defendants who have mental health conditions or learning disabilities may be eligible for intermediary assistance. Both the CrimPR and CPD also emphasise that intermediaries are independent of the parties to the proceedings and owe their duty to the court (HM Courts and Tribunals Service 2025, r.18.26; HM Courts and Tribunals Service 2023, para. 6.2.1).

In April 2022, the HM Courts and Tribunals Service introduced the HMCTS Court Appointed Intermediary Service to formalise the provision of intermediaries to vulnerable defendants across all criminal courts (HM Courts and Tribunals Service 2022). Previously, courts used their inherent jurisdiction to find a suitably qualified person to act as an intermediary for a defendant. These intermediaries were unregulated, did not receive standardised training and were not required to operate within any professional framework (R (on the Application of OP) v the Secretary of State for Justice (England and Wales High Court (Administrative Court) 2014), para. 26). While some aspects of this support have been formalised, significant gaps remain.

CPD 2023 specifies several procedural adjustments that courts should consider implementing to ensure that vulnerable defendants can understand court proceedings and participate effectively. It emphasises that:

“The court is required to take “every reasonable step” to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the accused… This includes enabling a witness or accused to give their best evidence and enabling an accused to comprehend the proceedings. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends.”

(HM Courts and Tribunals Service 2023, para. 6.1.1)

It further directs courts to consider “the need to ensure, by any appropriate means, that the defendant can comprehend and participate effectively in the trial process” (HM Courts and Tribunals Service 2023, para. 6.4.3). This means that a court is required to adapt the pretrial and trial process to ensure that the defendant can give their best evidence and understand the proceedings. With this in mind, courts should consider holding ground rules hearings in all cases involving vulnerable witnesses and defendants (HM Courts and Tribunals Service 2023, para. 6.1.4). This creates an opportunity for courts to discuss the defendants’ support needs and how to adapt questions, boundaries and ground rules (HM Courts and Tribunals Service 2023, para 6.1.5). After that, judges or magistrates are expected to intervene if the ground rules are not adhered to during trial. This may involve stopping “over-rigorous or repetitive cross-examination” (HM Courts and Tribunals Service 2023, para. 6.1.6). HM Courts and Tribunals Service (2023) also directs courts to make trials more accessible for vulnerable defendants by ensuring that the seating arrangement allows communication to be easily facilitated, allowing courtroom familiarisation visits, enabling them to practice using the live link, enabling support from family or other supporting adults, adjusting timetables, modifying judicial and security dress code, and limiting public and media access (HM Courts and Tribunals Service 2023, paras. 6.4.2(a)–(i), 6.4.5 and 6.4.6). Courts are thus required to consider these procedural adjustments in cases involving vulnerable defendants, including defendants with mental health conditions or learning disabilities.

5. Empirical Findings—Defendants’ Experiences

This section presents the findings on the experiences of former defendants in the criminal justice system. It highlights inadequate access to support and its consequences, and the barriers to accessing support.

5.1. Inadequate Access to Support and Its Consequences

5.1.1. Inadequate Access to Support

Most of the former defendants who participated in this research received inadequate or no support when they went to court. Only three of the nine participants said they received support to help them understand what was going to happen, what was happening, or what had happened in court. One of these participants was supported by their solicitor or barrister, who explained to them what was happening during court proceedings. Another was supported by their support worker, who facilitated communication between them and their solicitor before and after court proceedings. The defendant explained, “… if I didn’t understand the solicitor properly, then he (the support worker) would try and put it in a way that I would understand.” This indicates that when the solicitor said something that the defendant could not comprehend, the support worker would explain it to them in words that they could understand. The defendant also indicated that the support worker explained to them what to expect and what had happened during court proceedings. The defendant further stated that they required “additional support” to help them with “understanding” during court proceedings, but their support worker could not support them at this stage because they had no legal standing in court. However, they did not explain what such “additional support” would have entailed or when exactly they needed it. Finally, the third participant indicated that a court official had explained to them what to expect in court, including the role of the judge and what was going to happen during court proceedings. The court official also showed or told them what the courtroom would look like, but they were not given a physical tour before the trial. The defendant highlighted that although their case was heard in different courts, they only received support in one of them.

While only three participants received some support to facilitate their understanding of proceedings, two of them and one other said that they received emotional support from their relatives and friends, including other service users. One of these participants said, “I had my partner. I had a brother, my brother were there. So, yeah, I had family in the background with me.” Another said, “… my parents were in the background.” The third participant said, “So, one of the service users came to court and helped me on the day, to be there with me and you know, have someone that is familiar.” All three participants seem to have appreciated the emotional support that they received from their relatives and friends. Similarly, previous research has shown that individuals with mental health conditions or learning disabilities appreciated such support as it can help them cope with the stress of appearing in court and improve their participation in proceedings (McConnell and Talbot 2013; Talbot et al. 2015; Gormley and Watson 2021). This can make the courtroom feel less intimidating than it would without, in one participant’s words, “someone that is familiar.” This suggests that having friends and family in court may have made the court process less stressful for these participants.

The above findings are concerning because only one of the three participants who received support to facilitate their understanding of proceedings was supported by their solicitor during court proceedings. Past research also shows that lawyers do not always know how to support such defendants (Gormley and Watson 2021). Furthermore, none of them were supported by an intermediary. This reflects broader issues identified in previous research, which shows that intermediary provision for defendants is inconsistent and often poorly understood or applied (See Plotnikoff and Woolfson 2007; Cooper and Mattison 2017). Without adequate support, defendants risk being unable to effectively participate in their trial, undermining their right to access to justice. Accordingly, most of the former defendants who participated in this research experienced difficulties understanding proceedings. In addition, some participants felt intimidated by being the focus of the court and by the prosecutors’ questioning styles, with some believing that the lack of support may have adversely affected the outcome of their cases.

5.1.2. Difficulties Understanding Proceedings

Most of the participants reported that they experienced one or more barriers to understanding proceedings. One of the participants said that they did not understand what was happening, no one had shown them what the court looked like before their trial, and they did not feel like they took part in the proceedings. Another participant said that they felt confused and found it difficult to understand what was happening and what was said. They explained,

“I didn’t understand what was happening. It was like I was in a daze; like I didn’t really understand what … what the questions were asking, and like what court is like, you know, I guess, how to get in … I didn’t understand like what the judge is saying or any questions that they are asking me, to be fair. It was just mumble jumbo. It is just like in a different language which, you know, I really didn’t understand.”

Yet another participant said that they could not understand what was happening in the Magistrate’s Court because of their Scottish background. “I’m Scottish, so I … I never grew up understanding what Magistrate’s Court was … I’m more familiar with the Sheriff Courts and Justice of the Peace Court … so, a Magistrate’s Court is a bit of a mystery to me,” they explained. As a result, they were confused. They said, “I tried to work out who was … who was the prosecutor … the public prosecutor and … err … and I try to … um … I try to understand it … but … but … but … err … there were three magistrates.” They also struggled to understand what the legal professionals were saying as nobody explained it to them. “I was desperately trying to understand the conversations of the legal professionals, but I … I did not understand. No, nothing was explained to me.”

Some of the participants were unaware of the possible or actual outcomes of their cases. One of them said that they only became aware that they could be sent to prison on the day they were sentenced. Another participant said that they were unsure of the outcome of their case as nobody had explained it to them during or immediately after the court proceedings. Their solicitor only told them what the outcome of the case was, and explained it to them, several weeks after the trial. They said,

“I was unsure whether I was acquitted, that is, a formal declaration that I was not guilty of the charges put in front of me. He (the solicitor) said ‘No, I wasn’t acquitted. The case was dropped.’ So … that … that only came … that was only explained to me weeks afterwards ….”

Yet another participant recounted going through a similar experience. “I went into the dock. My barrister said nothing. My solicitor said nothing … I didn’t know what sentence I got. Nothing!”

There are risks when defendants do not understand their sentence. For example, Gormley (2017) found that convicted people with learning disabilities who had not received support to help them understand their sentence were more likely to be recalled to prison for technical non-compliance with community-based sanctions or to stay in prison longer than the “punishment part” of their sentence because the requirements for release under parole were not clearly explained to them.

Some participants said that they also had difficulties in comprehending or agreeing with their solicitors’ advice, particularly around whether they should give evidence. Two of them said their solicitors dismissed what they wanted to say as irrelevant or potentially harmful to their case. Another two said they were advised to stay silent or plead guilty, with the solicitor speaking on their behalf. However, these participants often did not understand the reasoning behind such advice, which made them feel dismissed and stripped of agency.

Another participant, in contrast, chose to give evidence despite their solicitor’s advice, feeling that their solicitor would not adequately represent them. They believed that speaking directly to the jury helped them understand their perspective, contributing to a positive outcome. They also noted that their ability to follow proceedings came from their prior experience at law school, not from any support provided during the process.

5.1.3. Intimidation

Another consequence of having no or inadequate support was that some participants felt intimidated by being the focus of the court and by the questioning styles of prosecutors. One of the participants said that having people staring at them made them feel uncomfortable. “I think it just when people—or people staring at you—that can be—can be really difficult,” they explained. Another participant said that they felt so intimidated and embarrassed being the court’s focus that they “lost it” while they were being sworn in to testify. They said,

“When I was in trial… obviously, all these people were against me—the prosecution’s witnesses, their witnesses—and then when I got into the dock to give my evidence, um, obviously, you … you … you … the bible and, personally, um, I lost it because I cannot be embarrassed with saying …”

In a similar vein, previous studies have shown that it is not uncommon for people with mental health conditions or learning disabilities to feel intimidated or traumatised in court (Gormley and Watson 2021; Beckene et al. 2020). While these feelings may be experienced by any court user, they may be exacerbated by impairment (Mind 2010; Jacobson and Talbot 2009; Doseva 2019). As Morrison et al. (2019) note, while it is typically an intimidating and stressful environment for any court user, the courtroom can be even more so for court users with mental health conditions or learning disabilities. This can impact their behaviour, their understanding of proceedings, and their ability to give evidence, compounded by the lack of appropriate support. Thus, defendants with mental health conditions or learning disabilities can be “multiply disadvantaged” (Chouinard 1997, p. 382) by the absence of appropriate support in court.

Besides feeling intimidated by being the focus of the court, some participants felt that the prosecutors’ questioning styles were aggressive and manipulative. Two participants, who both had learning disabilities, felt that the prosecutors were trying to “trick” them by “just firing questions” at them or rephrasing and repeating questions. “[T]he prosecutor was just firing questions at me, you know, trying to trick me, and I didn’t understand what he was saying,” one of them said. “Did … did you find that … and I found that sometimes that, in a way, they are trying to trick you, but they put the word in a different way?” asked another. They continued,

“They sometimes do that: they say it one way … then they don’t, and it’s like, go to a next question, then they say … the same meaning … but in a different way. And they actually try to trick you that way and I’ve had that come in within a few times.”

The first participant also felt that the prosecutor was trying to confuse them. They recounted, “He said one question about three times, trying to confuse me because he was able to say it.” They believed that the prosecutors were aggressive and manipulative because their job was to get them convicted. They said,

“Of course, his job, obviously, was to get me guilty … obviously, to find me guilty, but was just firing it in differently … He’s firing one question, and then he’d do another one, and then he’d go back to the question he’d already really asked me, you know.”

In their research on the questioning of witnesses with learning disabilities in court, Kebbell et al. (2004) found that questions were repeated more often to witnesses with learning disabilities than witnesses without learning disabilities during cross-examination, possibly to play on their suggestibility or because the witnesses seemed not to understand the questions put to them. It has been previously noted that repeating questions is likely to confuse people with learning disabilities (Benedet and Grant 2012). It can make them change their answer, thinking that the questioner repeated the question because he or she did not like the first answer (Benedet and Grant 2012). Thus, repeating questions is not conducive to eliciting credible and reliable evidence from individuals with learning disabilities.

5.1.4. Negative Case Outcomes

Three of the participants said that not having support negatively affected the outcomes of their cases. More specifically, they said that it led to their imprisonment. “I’m pretty sure that I didn’t get any support and there are many couple of times that I got slang slog into jail,” one of them said. Another reflected, “And in court, I was never heard … never got help … and um … I wish I had it because it probably made me spend a lot long in prison.” The third participant said that he failed to comprehend what the judge was saying, and the judge thought that he was pretending to be ignorant, rude, or indifferent, and sent him to prison for two weeks. He said,

“Basically, the judge was talking in jargon … like words I didn’t understand … so, he felt like I was just being ignorant. So, he sent me to prison for two weeks because he thought I was being basically rude and, like, not really bothered.”

Thus, the participant felt that the judge failed to recognise that they were behaving in that way because they needed support and instead sent them to prison. This suggests that the judge lacked awareness of the participant’s impairment, as discussed below.

5.2. Barriers to Accessing Support

Participants identified five key barriers to accessing support, namely professional knowledge gaps, stigma and discriminatory attitudes, the absence of formal diagnoses, the speed of court proceedings, and inequalities in statutory provisions. These barriers are discussed in turn below.

5.2.1. Professional Knowledge Gaps

Several of the participants expressed the view that professionals in the legal system lacked sufficient knowledge, understanding, and awareness of their impairments and support needs. One of the participants, who had a learning disability, said that they were not given the support that they required because of a misunderstanding about their support needs. “[T]here was some confusion within what support I was getting,” they explained.

Another participant, who had autism, said that they were sent to prison by a judge who misunderstood them (see Section 5.1.4.). As noted earlier, they explained that the judge used legal jargon that they did not understand and misinterpreted their confusion as rudeness, resulting in a two-week prison sentence. This suggests that the judge was unaware that the participant had autism and failed to recognise it from their behaviour. As several commentators have noted, it is not always apparent that a person has autism, and their behaviour can sometimes be misinterpreted as rudeness or wilful non-compliance (Jacobson and Talbot 2009; Turner and Hughes 2022; Talbot and McConnell 2017). In their recent research report, User Voice (2021) included a quote from a participant who said, “People think I am being rude or that I am weird because I “don’t look or sound” like I have autism … the judge thought I was being rude” (p. 18). This participant also felt misunderstood by the judge. This can be problematic, as judges may consider the presentation of the individual in their sentencing decisions (Turner and Hughes 2022). As the participant whose words I quoted above suggests, this can lead to a negative outcome.

Another participant, who had a mental health condition, said that there seemed to be more awareness of, and better support for, people with learning disabilities than for those with mental health conditions. This was an interesting finding, given that in their 2009 publication, Jacobson and Talbot (2009) argued that “the needs of defendants with mental health problems tend to be prioritised over the needs of those with learning disabilities” both in policy and practice (p. 2). However, awareness of learning disabilities in the criminal justice system appears to have increased since then, in part due to the several organisations who have published guidance documents on how to support people with learning disabilities in the criminal justice system (Department of Health 2011; McConnell and Talbot 2013; NHS England 2015). Furthermore, as Peay and Player (2018) note, the susceptibility of people with learning disabilities to make false confessions is recognised under Code C of PACE 1984 (PACE Code C 2023).

5.2.2. Stigma and Discriminatory Attitudes

Some of the participants said that the fear of prejudice or discrimination may result in some people not disclosing their impairments, potentially hindering their access to support. More specifically, two of the participants said that certain individuals do not disclose their impairments due to fear of being treated differently or as “stupid”. “A lot of people will not tell their solicitors or barristers that they’ve got mental health, learning disabilities, whatever, because they don’t want to be treated different from any other person,” explained one of them. The other participant said,

“I mean, in a way, you’re scared to admit you’ve got a problem because you feel like they’re going to treat you as stupid, and they’re going to treat you as stupid so that you actually are, actually are, scared to like—say—like, ‘I’ve got mental health.’ ‘I’ve got a learning disability.’ ‘I’ve got dyslexia and dyspraxia.’ Yeah, you’re scared because they’re going to treat you differently.”

Such responses reflect an ableist society in which disabled people often face stigma and discrimination for disclosing their impairments or requesting support or accommodations (Bogart and Dunn 2019). To avoid facing such stigma and discrimination, some disabled people do not disclose their impairments, “and will thus not receive needed accommodations” (Bogart and Dunn 2019, p. 658).

In their research, Benedet and Grant (2023) found that Canada offers disabled adults a wide range of procedural adjustments aimed at making “the experience of testifying less traumatic and [to] enhance the quality of [their] evidence,” but “[m]any people with mild to moderate mental disabilities may try to hide them (their impairments) from the justice system for fear of being considered incompetent or less trustworthy, or otherwise facing discrimination,” which “can result in them being unable to access the accommodations that might make their experience of testifying less stressful and more effective” (Benedet and Grant 2023, p. 38).

It is important to also note that disclosing one’s impairment does not always result in being provided with the required support, as illustrated by one of the participants’ experience of telling the judge that they had autism and not being heard. Therefore, for any disclosure to be effective, it should result in defendants receiving the support that they require and being protected from experiencing any form of discrimination or prejudice due to their disclosure.

5.2.3. Absence of Formal Diagnoses

Another barrier was the absence of formal diagnoses. One of the participants said that they were not given the support that they required when they attended court proceedings because they did not have a formal diagnosis of their impairment at the time. “At the time,” they said, “I got nothing. I don’t think I got any help because I’ve got autism. I didn’t get diagnosed that.” While they point out that they did not have a formal diagnosis of their impairment at the time, it is not clear whether they knew that they had autism when they went to court or whether they only became aware of it after getting a formal diagnosis. In the case of the latter, the absence of a formal diagnosis and the lack of awareness of one’s own impairment status could have been a barrier to accessing support. In either case, the participant’s experience demonstrates the ableist nature of court processes, as the operation of ableism “is intimately entangled with visual processes of diagnosis and classification” (Calder-Dawe et al. 2020, p. 135). As Calder-Dawe et al. (2020) note, “the body is read—and produced—as either normal or abnormal” in these processes (p. 135). The body with an impairment is thus labelled as “abnormal” through diagnosis, and only after this body has been labelled as such can it access support.

5.2.4. Speed of Court Proceedings

One participant described the Magistrates’ Court as “a cattle market” with reference to the speed of its proceedings. “Well, I understand the Magistrates’ Court as a cattle market,” they remarked, then explained, “they process people so quickly … that the risk of injustice is quite high in the Magistrates’ Court.” Another participant doubted that Magistrates’ Courts were able to provide the required support or procedural adjustments because “Once they convene, as quick as possible, they just go straight to the point and that’s it.” This echoes the Magistrates Association’s findings that Magistrates’ Courts are under pressure to turn cases around quickly, and this reduces the use of the option to adjourn, pending further assessment (Criminal Justice Joint Inspection 2021). Inadvertently, this may result in the court failing to identify people with mental health conditions or learning disabilities or address their support needs.

5.2.5. Inequalities in Legal Provisions

Participants also identified disparities in statutory provisions as a barrier to accessing support, particularly intermediary assistance. Reflecting on their experience of once being interviewed as both a complainant and a suspect in the same case, one of the participants said, “you get more help if you’re a victim, but not as the defendant.” They recalled being assisted by an intermediary when they were interviewed as a complainant at the police station, and not being given the same support when they were interviewed as a defendant. Therefore, they concluded that “the rules change when you’re a defendant but when you’re a victim then the rules change again.” They continued by expressing their desire for parity and fairness in statutory provisions with the following statement, “the rules shouldn’t change if you’re … when you’re the defendant. It should be the same as you are a victim.”

6. Discussion

Against a backdrop of inconsistent provision of intermediary assistance and procedural adjustments (Howard et al. 2015; JUSTICE 2017; User Voice 2021), this paper investigated the experiences of defendants with mental health conditions or learning disabilities in criminal proceedings in England and Wales, focusing on their access to communication support and barriers to it. The study used a socio-legal approach, combining doctrinal research with interviews with former defendants. The former involved a legal and policy review, which showed the extent to which defendants with mental health conditions or learning disabilities are entitled to intermediary assistance and procedural adjustments in England and Wales.

Recent reforms, such as the HMCTS Court Appointed Intermediary Scheme introduced in 2022 and updates to the Criminal Practice Directions and Criminal Procedure Rules, reflect growing recognition of the need to support defendants with communication difficulties. Nevertheless, despite these developments, it remains problematic that defendants do not have a statutory right to intermediary assistance, unlike non-defendant witnesses. As a result, access to intermediaries remains inconsistent. Although other support measures are available, they may not be an adequate substitute for intermediary assistance (Owusu-Bempah 2020; JUSTICE 2017; Gudjonsson and Joyce 2011; McGhee and Hunter 2011). This gap fails to fully ensure equality of arms and does not meet the requirements of the reasonable adjustment duty under the Equality Act 2010, nor does it satisfy the duty to provide procedural accommodation under Article 13 of the CRPD. It also raises concerns under Article 14 of the ECHR, which prohibits discrimination in the enjoyment of Convention rights, including the right to a fair trial under Article 6. To address these concerns, future research could evaluate the impact of intermediary assistance compared to other support measures, assessing outcomes such as case progression, perceived fairness, and trial participation. Mixed-methods studies could be particularly valuable in capturing both procedural efficacy and lived experience.

The empirical findings show that when defendants who need support do not receive it, they may find it difficult to understand proceedings, feel intimidated by being the focus of the court or the prosecutor’s questioning, and face negative case outcomes. These consequences reflect the UK’s failure to protect defendants’ right to access justice, particularly their fair trial rights, under Article 13 of the CRPD and Article 6 of the ECHR. The first two consequences may amount to a violation of the participants’ fair trial rights, as interpreted by the ECtHR in SC v UK (European Court of Human Rights 2004), Stanford v UK (European Court of Human Rights 1994), and T and V v UK (European Court of Human Rights 1995).

Under Article 12(3) of the CRPD, State Parties are obligated to provide support to enable individuals with mental health conditions and learning disabilities to make decisions in legal contexts. Accordingly, the fact that some of the participants were not aware of the possible or actual outcomes of their cases, and others felt dismissed and stripped of agency because they had difficulties in comprehending or agreeing with their solicitors’ advice, also raises concerns about the failure to fulfil this obligation. This is an issue that the CRPD Committee raised in its concluding observations on the UK (CRPD Committee 2017), expressing concern over the lack of appropriate support to exercise legal capacity, particularly in judicial and administrative proceedings (para. 32(b)). The Committee urged the UK to design and implement a decision-making regime, focusing on respecting the will and preferences of persons with mental health conditions or learning disabilities in court proceedings (para. 33(b)). Implementing this recommendation is necessary to ensure that defendants with mental health conditions or learning disabilities receive equal recognition before the law and equal access to justice in line with Articles 12 and 13 of the CRPD. However, further interdisciplinary research is needed to develop and test decision-making support models that align with Article 12 of the CRPD, especially within adversarial court contexts.

The participants identified five key barriers to accessing support: (1) professional knowledge gaps; (2) stigma and discriminatory attitudes; (3) absence of formal diagnoses; (4) the speed of court proceedings; and (5) inequalities in legal provisions between witnesses and defendants. These findings not only reflect individual experiences but also point to systemic issues in the criminal justice system’s approach to defendants with mental health conditions or learning disabilities. To address the first two barriers, legal professionals should receive additional training on the social model of disability, accessibility, procedural accommodations, and reasonable accommodations. This training should become part of the standard curriculum and professional development of all those who work in the legal system. It should also raise awareness of impairment-specific issues, such as the barriers discussed in this paper, and individuals with lived experience should deliver these aspects of the training, where possible. Implementing this would be in line with the UK’s obligations under Article 13(2) of the CRPD, which links to the convention’s broader awareness-raising obligations under Articles 4(1)(i) and 8. To assess its effectiveness, future work should evaluate the impact of disability awareness and procedural accommodation training on legal professionals’ behaviour and attitudes.

The third barrier could be addressed through better use of non-clinical evidence in assessments and embedding reasonable accommodations into the criminal justice process, as it is common for individuals with undiagnosed mental health conditions or learning disabilities to come into contact with the criminal justice system (Brown et al. 2022; Joint Committee on Human Rights 2008; Loucks 2007; NICE 2017). Rather than perpetuating the injustice of not providing support to such individuals, legal professionals should adopt a more proactive approach to identifying and meeting their needs in the interest of equality, justice, and fairness. This may include asking defendants whether they have or think they have any undiagnosed impairments or support needs that the court should be aware of. Making it standard practice for legal professionals to ask such questions may not only improve the identification of individuals who have these impairments and their support needs, but may also reduce the stigma associated with needing support. This may also encourage those who would have otherwise not disclosed their impairments due to fear of stigma and discrimination to do so and receive support. As I mentioned above, for any disclosure to be effective, it should result in defendants receiving the support that they require and being protected from experiencing any form of discrimination or prejudice due to their disclosure. These measures may also reduce the risk of failing to identify defendants with mental health conditions or disabilities due to the speed of court proceedings.

Finally, statutory measures for the provision of intermediary assistance should be extended to defendants to ensure that there is equality of arms between defendants and other witnesses. Simultaneously, the government of England and Wales should consider combining the separate intermediary schemes into one, with a view to improving defendants’ access to intermediary assistance. However, due consideration needs to be given to the differences involved in supporting defendants and other witnesses to ensure that the process achieves substantive equality, and not just formal equality. In other words, due consideration needs to be given to the fact that the purpose and duration of which this support is required will be different for defendants and other witnesses. Accordingly, adequate resources—financial and otherwise—should be provided to ensure that intermediary assistance is available for the purposes and durations that defendants and other witnesses require. Furthermore, defendants and other witnesses should have equal access to these resources. Thus, beyond ensuring that both defendants and other witnesses have equal access to intermediaries, there is a need to ensure that this support is available at the time when both defendants and other witnesses require it to understand what is happening or give evidence in court.

While the study contributes to understanding the experiences of the sampled population, certain limitations constrain the generalisability and reliability of its findings. First, given that only nine individuals participated in this study, the small sample size restricts the extent to which the empirical findings can be generalised. Second, the time since participants had last appeared in court varied considerably, ranging from 2 to 30 years. This wide time span, particularly the cases involving 20 to 30 years since the last court appearance, represents a significant limitation. The accuracy and completeness of participants’ recollections may have been affected by the passage of time, particularly for individuals with learning disabilities. In addition, legal frameworks and societal attitudes toward persons with mental health conditions and learning disabilities have evolved over the past three decades. Nonetheless, the research reveals important insights about the experiences of the sampled population, most of which are relevant to contemporary contexts. While the findings cannot be generalised to all defendants with mental health conditions or learning disabilities, they offer valuable exploratory evidence that highlights systemic gaps and informs future policy and research.

7. Conclusions

In conclusion, the current legal and procedural landscape in England and Wales reveals significant gaps in the provision of communication support for defendants with mental health conditions or learning disabilities. While both international and regional human rights frameworks—including the UNCRPD, ECHR, and EU law—clearly impose obligations to ensure equal access to justice, domestic implementation remains inconsistent and, at times, inadequate. The absence of a statutory right to intermediary assistance for defendants undermines the principle of equality before the law and risks violating their right to a fair trial. The empirical evidence further underscores that many defendants in this category struggle to understand or participate meaningfully in court proceedings. To bridge these gaps, there is a pressing need for statutory reform, increased judicial awareness, and a systemic commitment to embedding reasonable accommodations into the criminal justice process. Without these changes, the rights of defendants with mental health conditions or learning disabilities will continue to be compromised.