Unfitness to Plead Consultation Responses - Law Commission ...

For example - A deafblind person C is accused of marital rape. C communicates
using deafblind manual or finger spelling. Deafblind manual is a very slow form of
communication. The court would therefore not only have to provide an interpreter
to allow C to access the trial, the court would also need to run at a very slow
pace to allow for C to follow the court proceedings and because it is exhausting
to receive communication via this method the court would also have to have
regular communication breaks. For some deafblind people communication
breaks are required at 20 minute to half hour intervals. The court may also have
to limit the total length of a daily session. For example some deafblind individuals
would struggle to receive more than 3 hours per day of deafblind manual.
We agree with the contention that a person should not be regarded as unable to
understand the information relevant to a decision if he is able to understand an
explanation of it which is given in a way which is appropriate for his or her
circumstances. Some deafblind people use individual forms of communications
which have been adapted to best suit their needs. Some deafblind people will
only effectively be able to communicate with a very limited number of people as
they have developed a unique method of communication with their support
worker. In this instance it will be imperative that the individual is able to access
information using their preferred person as an intermediary or interpreter.
Question 1 - Special measures
Sense agrees that we should aim to construct a scheme which allows courts to
operate a continuum whereby those accused who do not have decision-making
capacity will be subject to the section 4A hearing and those defendants with
decision-making capacity should be subject to a trial with or without special
measures depending on the level of assistance which they need.
Provisional Proposal 6
Sense agrees that where a defendant who is subject to a trial has a mental
disorder or other impairment and wishes to give evidence then expert evidence
on the general effect of that mental disorder or impairment should be admissible.
This proposal is relevant for deafblind people. For example, some deafblind
people may have limited access to information and consequently may have a
limited awareness of the world around them or demonstrate a lack of awareness
of certain social norms caused by their dual sensory impairment. For example an
individual may know and understand the activities and social constructs which
relate to his or her everyday experience of having a family and going to the
shops to buy food and clothes, but he or she may not have any knowledge or
understanding of more complex social structures such as the structures of
democracy or the social norms around the workplace. Further unlike a hearing
sighted person a deafblind individual may be unable to judge distances or give
evidence on the colour of clothing, or visually detectable facial characteristics.
However, a deafblind person’s other senses will be relevant for evidence
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