Earlier this month, the U.K. Justice Secretary The Rt Hon Robert Buckland QC committed to an investigation into how the justice system is currently serving individuals on the autism spectrum and those with learning difficulties.

The initial call for evidence is set to be undertaken by the prisons and probation inspectorates and will seek to address, among other important issues, reports that over “a third of all offenders have some form of learning disability or difficulty and over half of prisoners may have sustained acquired brain injuries.”

The call for evidence will maintain a particular focus on the role speech and language difficulties play in preventing neurodiverse offenders from fully comprehending and participating in legal and judicial processes from arrest through to appearing in court.

Such a move certainly represents a positive step in the right direction but needs to be understood in the wider context of a judicial system, and indeed a legal profession, permeated by multiple barriers to fair and equal access.

These barriers have a significant impact, not just on offenders with communication impairments, but on people with all types of disabilities, including those wishing to pursue a legal career.

Specifically concerning Buckland’s desire to zero in on why individuals with “autism and dyslexia struggle through their brush with the law,” the upcoming call for evidence follows hot on the heels of a report into the matter published in June by the Equalities and Human Rights Commission (EHRC).

The EHRC report flagged widespread failings in both the treatment and early identification of offenders with neurodivergent conditions.

Such a failure “in systematically recognizing the needs of disabled people,” according to the report’s authors, often led to important adjustments to enable participation and allow for a fair trial not being provided.

Among the recommendations put forward by the EHRC were more effective monitoring and sharing of data relating to defendants with disabilities, enhanced levels of communication and collaboration with health services and the inclusion of disability awareness training as a mandatory element of those working in criminal law.

Disability representation in the legal profession

The latter educational component is an entirely valid proposition but one might also consider how usefully this might be supported with greater disability representation within the legal profession itself.

Interestingly, according to the “Legally Disabled” research project, an initiative undertaken by Dr Natasha Hirst and Professor Deborah Foster at Cardiff University, 90% of the lawyers they surveyed have invisible impairments that remain unknown to their employer.

Such a startling figure may be partly ascribed to what Rhian Smith, a self-identified practising solicitor with an invisible disability and chair of the Disability Subcommittee of Cardiff Law Society, describes as a “culture of presenteeism.”

Contributing to the Law Gazette earlier this month, Smith wrote, “It has always been ingrained in me that the longer you are seen at your desk, the more committed you are perceived to be, the more respect you earn and the more likely you are to be promoted. Being busy and over-burdened is worn as a badge of honor.”

Smith later continued, “What would I like to see moving forward? I would like to see law firms reserving training contracts for disabled lawyers. Trainee solicitors will become solicitors. Solicitors will become partners. And there you will have diversity and inclusion from the bottom up.”

Inaccessible court buildings

Of course, occupational attitudes and perceptions are a malleable and moving feast but access to the U.K.  justice system is additionally dogged by that oldest of chestnuts – poor building accessibility.

Whether or not this boils down to a prevalence of old listed buildings, the fact remains that just 15% of British courts are fully wheelchair accessible according to research carried out In August by negligence solicitors Bolt Burden Kemp.

Indeed, just 2% of the 444 courts investigated by the firm’s researchers were deemed fully accessible. The applied test for full accessibility involved an 11-point checklist for provisions, including disabled parking, accessible toilets, hearing loop systems and the allowance of assistance dogs.

On publication of the research, Disability Rights UK CEO Kamran Mallick remarked, “It is an absurd situation that ten years after the Equality Act was made law, stating that reasonable adjustments must be made to accommodate disabled people, the places where the law is most commonly upheld still do not abide by the Equality Act. “

Further adding, “Accessibility, like the law itself, must be upheld as a universal principle.”

Impact of Covid-19

In relation to the dystopian times which we continue to live through as a result of the global coronavirus pandemic, Covid-19 has had a mixed impact on the broader journey towards greater equality within the justice system.

On the one hand, back in the very early days of the U.K.’s national lockdown, the EHRC expressed its concerns regarding the potential negative and exclusionary jolt the swift expansion of remote phone and video hearings might have on those with protected characteristics.

Foreshadowing its aforementioned wider appraisal of the exclusion of individuals with communication difficulties from the justice system, the EHRC recommended careful consideration on the use of intermediaries, extra time for breaks and the increased use of visual aids to mitigate these concerns.

On the other hand, for those working in the legal profession, the pandemic provided a welcome break from exhausting traditional working practices involving strict managerial oversight and rigid adherence to billable hours through the increased use of homeworking.

In fact, additional research conducted by Professor Debbie Foster’s team at Cardiff University’s Business School over the summer months, and announced in October, found that over 80% of disabled lawyers surveyed felt they were trusted to get on with their work remotely with a a similar number stating that not having to travel for work had helped significantly.

Commenting on the research, which involved surveying 108 disabled members of the Law Society, Professor Foster declared, “Many disabled people have said that homeworking has become a game changer for them, that they can now do the job that people told them they could never do, from home.”

Clearly, the establishment of a more accessible justice system entails several interconnected moving parts. The priority, as the EHRC, and thankfully now the U.K. government, appear to have identified, has to be fair and equal treatment for disabled people appearing before the courts.

This is especially true for those who may not even be in a position to comprehend and speak out about the fact that appropriate adjustments are lacking and the grave consequences this may entail for them.

Government diktats and sound policy-making play a pivotal role in establishing a framework for this. However, an essential measure for ensuring that such a framework remains robust, relevant and moves with the times, will be to ensure that individuals with lived experience of disability can lend their insights and forge a career within it.