The Guardian: Translation services 'increasingly difficult to access' under the new system
The basic tenet of a fair trial is that the defendant must understand what he or she is charged with, what the process entails and how they can best defend themselves. We currently breach this important aspect of our legal system in a number of ways.
The first is with the criminal age of responsibility. In England, Wales and Northern Ireland it is 10 years, lower than many other countries and to the eternal shame of a civilised society. In China it is 14 for serious crimes and 16 for all other offences. In South Africa there is a rebuttable presumption that a child between the ages of 10 and 14 lacks criminal capacity. Even in Iran it is 15 for boys (but 9 for girls). However "child friendly" a court attempts to be I would contend that no 10-year-old child would have the remotest idea what was going on in any court case, let alone one involving grave crimes.
Even if we raised the age of criminal responsibility, the Prison Reform Trust has pointed out problems with the huge numbers of people with learning difficulties who populate our criminal justice system. They are supplemented by those with mental health, drug and alcohol problems, all of which impinge on an individual's ability to defend themselves.
And we should not forget the many foreign nationals we prosecute. Brits abroad tend to get a sympathetic press when struggling in foreign judicial systems but the sympathy is not replicated at home, as translation services are contracted out and increasingly difficult to access.
There are also those with basic communication problems. The Royal College of Speech and Language Therapy has been working tirelessly to bring these issues to public attention. Their work has shown that more than 60% of young people in the criminal justice system have a communication disability and 46% to 67% of these have poor or very poor skills. These young people therefore struggle to understand and convey thoughts, feelings and anxieties. Many are unable to understand their own actions, let alone convey any reasoning behind them to a judge and jury in forbidding settings.
The problems of these groups are accentuated as court processes embrace plea-bargaining as a way of "speeding up" justice and reducing costs. For the emotionally and intellectually adept who can afford a lawyer and have the benefits of advocacy it can be a win-win situation between them and the law.
For the vulnerable it can simply be another component in a bewildering process where not only might the penalties be disproportionate but the innocent may not go free.
Once a trial is over and the sentence begins the system continues to punish disproportionately. Interventions in prison to deal with offending behaviour, drug misuse, anger management, sexual dysfunction and everything else which the system should address are primarily geared towards white, English-speaking 30-something men who can read and write. There are too few of them but virtually none for those who are unable to engage and co-operate and lack the advocates outside to argue their case.
In an adversarial justice system we need to ensure we protect the vulnerable – and yes, that must begin with the victim. But trust and respect for the law are the main factors that encourage people to accept and follow the law. People will obey the law if they think the system is fair. As we sweep ever more people into the criminal justice system, we should ask ourselves if we are losing that ideal of fairness.