Under the Equality Act 2010 where defendants meet the definition of disability, as set out in section 6(1) of the Act, they may be entitled to reasonable adjustments under section 20 of the Act.

Reasonable adjustments may also need to be made by the court in order to meet the right to access justice under Article 6 of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, and Article 13 of the United Nations Convention on the Rights of Persons with Disabilities.

The CPS provides the following examples of reasonable adjustments:

• Arranging for the defendant to visit the court room before the court hearing or trial so the person can feel familiar with it
• Using simple, clear language that can be easily understood
• Holding the hearing or trial in a court room in which all participants are on the same, or almost the same level
• Allowing the defendant to sit with members of their family and/or other supporting adults and in a place where they can easily communicate with their solicitor
• Restricting attendance by members of the public and reporters;
• Screening the defendant, particularly where this is linked to a condition such as ADHD where it would significantly enhance the defendant’s participation in a trial;
• Removal of wigs and gowns;
• The use of communication aids.

Further information about such adjustments may be found in the Equal Treatment Bench Book. The Advocate’s Gateway has produced toolkits to support the effective participation of vulnerable defendants. 

CPD I General matters 3F advises the roles and functions of intermediaries are:

• …to facilitate communication with witnesses and defendants who have communication needs.
• …to improve the quality of evidence and aid understanding between the court, the advocates and the witness or defendant.
• On occasion, they actively assist and intervene during questioning.

What level of assistance a defendant requires will depend on the nature and complexity of the case. A defendant may manage without an intermediary for a simple case, but require significant support for a more complex one. The expert should relate the defendant’s difficulties to the particular proceedings faced, and consider how they have managed in similar circumstances previously. R v Thomas (Dean) [2020] EWCA Crim 117 

Further guidance is provided by Chapter 5 of the Equal Treatment Bench book  and The Advocate’s Gateway, which has a specific toolkit for intermediaries. 

The court is not yet mandated to provide an intermediary (because s.104 Coroners and Justice Act 2009, which would insert ss. 33BA and
33BB into the YJCEA 1999, has yet to be commenced). 

CPD I General matters 3F.12 advises the court to consider sympathetically any application for the defendant to be accompanied throughout the trial by a support worker or other appropriate companion to assist them to follow the proceedings.  

Section 35 of the Criminal Justice and Public Order Act 1994 provides that the jury is permitted to draw inferences from a decision of a defendant not to give evidence or to refuse to answer questions. However, Section 1 notes the jury may be directed not to draw adverse inference from such a decision where “it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence”.

R v Tabbakh [2009] EWCA Crim 464 found such an issue is broad and all relevant circumstances should be considered. However, that “It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so.“ 

R v Mulwinda [2017] EWCA Crim 416 clarified this further, noting “[the defendant] must be suffering from a recognised mental disorder, the impact of which may affect his presentation in giving evidence“. The ruling included a finding that a psychiatrist or psychologist may be “called before the defendant in order to explain for the jury the effect of his recognised mental disorder on his likely presentation when giving evidence in the strictly limited way set out in the authorities.” Thus even where a defendant’s mental disorder may affect how they present whilst giving evidence, a finding of undesirability may not be made and experts may instead be asked to explain to the jury the impact of this mental disorder on the defendant’s presentation whilst in court or while giving evidence.

It is to be expected defendants may find giving evidence in criminal trials difficult, and even “extreme difficulty” has not been found in itself to make it “undesirable” that the person should give evidence. Nor has the “possibility” that giving evidence would adversely affect the mental health of the defendant. R. v Ensor (Max Angus) [2009] EWCA Crim 2519