Inaccessible Justice: Exploring the Barriers to Justice and Fairness for Disabled People Accused of a Crime
| Published date | 01 December 2021 |
| Author | CAITLIN GORMLEY,NICK WATSON |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1111/hojo.12433 |
The Howard Journal Vol60 No 4. December 2021 DOI: 10.1111/hojo.12433
ISSN 2059-1098, pp. 493–510
Inaccessible Justice: Exploring the
Barriers to Justice and Fairness for
Disabled People Accused of a Crime
CAITLIN GORMLEY and NICK WATSON
Caitlin Gormley is Lecturer in Criminology, Scottish Centre for Crime and
Justice Research and School of Social and Political Sciences, University of
Glasgow; Nick Watson is Chair in Disability Studies, School of Social and
Political Sciences, University of Glasgow, and Director, Centre for Disability
Research
Abstract: Drawing on in-depth qualitative interviews with 15 people who have learning
disabilities, brain injuries, neurodiversity, or mental health conditions accused of a crime
in Scotland, this article offers substantive and methodological insights to unpacking per-
ceptions of justice accessibility. Weexplore barriers to participation in pretrial justice pro-
cesses for disabled accused people, demonstrating that disabled people are systematically
denied a voice and disadvantaged by poor identification and recognition of impairment,
insufficient supports or adjustments, and inaccessible information. We discuss partici-
pants’ accounts of feeling excluded from, and intimidated by, systems and decisions that
are not routinely explained in accessible terms, which, in turn, adversely impacts access
to justice and perceptions of fairness. Informed by criminology and disability studies, we
argue that the failure of criminal justice systems and practices to acknowledge disability
as an equality issue creates disabling barriers that serve to further marginalise disabled
people within justice settings.
Keywords: criminal justice; disability; justice accessibility; learning disability;
vulnerability
People with learning disabilities,1autism, and mental health conditions are
marginalised and disadvantaged within criminal justice systems. Evidence
as to what works, and what does not, in ensuring fair and just outcomes
among this group is lacking. Policies that are in place do not directly en-
gage with disability as a protected characteristic; instead, they rely on am-
biguous definitions of ‘vulnerability’ and ‘individual capacity’. Without this
evidence, it is difficult to assess if disabled people who are accused of a
crime are treated fairly, equally, or whether their needs are met in the jus-
tice process. There is a growing body of literature about the experiences of
493
C
2021 The Authors. The Howard Journal of Crime and Justice published by Howard League
and John Wiley & Sons Ltd
This is an open access article under the terms of the Creative Commons Attribution License, which per-
mits use, distribution and reproduction in any medium, provided the original work is properly cited.
The Howard Journal Vol60 No 4. December 2021
ISSN 2059-1098, pp. 493–510
justice-involved disabled people (see Baldry et al. 2013; Ben-Moshe 2013;
Cadwallader et al. 2018; Gormley 2017b, 2019; Kelly 2017; Rodriguez,
Ben-Moshe and Rakes 2020; Rogers 2019; Spivakovsky 2014, 2017) but
little is known about the pretrial experiences of disabled defendants, or
‘accused persons’, either in Scotland or elsewhere. This article aims to ad-
dress this gap by bringing a hidden population into view and presenting
the accounts of justice-involved people with learning disabilities, autism,
and mental health conditions. In doing this, we employ Fineman’s (2008)
concept of vulnerability to understand the experiences of a group often
absent in criminal justice research.
The UK is a signatory of the United Nations Convention on the Rights
of Persons with Disabilities (UNCRPD) 2006 and, under Article 13 of that
convention, is compelled to take steps to ensure that disabled people have
equal access to justice. In Scotland, as in England and Wales, this access to
justice is covered under the Equality Act 2010. This Act places an obligation
on the Scottish Courts and TribunalService (SCTS) to take an anticipatory
duty to make provisions for reasonable adjustments so that disabled people
have equal access in court. This duty, and the anticipatory nature, is artic-
ulated in the Judicial Institute for Scotland’s (2019) Equal Treatment Bench
Book:
The SCTS has a duty actively to consider how to improve access for disabled per-
sons: whether premises or other physical features require alteration, whether prac-
tices, policies and procedures require adjustment and whether any auxiliary aids
and services are required. It is unsatisfactory if it is only when the person with a dis-
ability comes to the court that any problem in relation to that person’s convenience
becomes apparent to the court staff or the judge. (Judicial Institute for Scotland
2019, ss. 11.4–23)
However, despite penal reform recommendations (Bradley 2009; NICE
2017; Talbot 2008, 2012), there are no standardised or systematic prac-
tices of identifying either when an accused person requires additional
support to access justice fairly or what form that support should take
(Equality and Human Rights Commission 2020a; Law Society of Scotland
2019). Accessible justice is not just about the removal of barriers but also
ensuring that disabled people are actively included in the administration
of justice. There are no official government records in UK jurisdictions
on the prevalence of disabled people’s contact with the justice system as
suspects, accused, or convicted persons, nor as victims or witnesses, but it
is likely that these figures are significant. It is estimated that around 40% of
people held in police custody have mental health conditions (NICE 2017)
and that between 5% and 10% of the prison population have learning
disabilities (Talbot 2012). While there are no comprehensive statistics or
estimates around neurodiversity within justice settings, people with autism
are thought to be over-represented but under-diagnosed within prisons
(Ashworth 2016; King and Murphy 2014).
Disabled people who are accused of a crime are disadvantaged by a
system that neither acknowledges nor understands their needs. In 2020,
the Equality and Human Rights Commission (EHRC) published Inclusive
494
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2021 The Authors. The Howard Journal of Crime and Justice published by Howard League
and John Wiley & Sons Ltd
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