Law: The people that the British legal system likes to pretend do not exist

The justice system has safeguards for the protection of many kinds of vulnerable people. Yet for one sector of society, it is almost a no- go area. Louise Jury reports on how the problem is being tackled.

People with learning disabilities are being failed by the British justice system. That is the conclusion of a report from Mencap, the mental health charity.

It argues that all too frequently the "learning disabled" are seen as bad witnesses and are denied the opportunity to give evidence, even when they have been the victims of the most serious of crimes. Yet with better training for police and all those in the legal system, from solicitors to judges, the charity believes more cases could go to court and result in successful prosecutions.

Fred Heddell, Mencap's chief executive, said: "Everyone in society deserves to be treated fairly by the law. People with learning disabilities are a vulnerable sector of society and they deserve more, not less, protection by the legal system. Unfortunately they are being sidelined and it appears that crimes against people who are sometimes unable to speak for themselves are condoned by the British legal system."

Training could change that, he said. The study recommends awareness training for barristers, judges and magistrates; the introduction of training for new police recruits; compulsory video taping of police and social worker interviews with people with learning disabilities; and court familiarisation to take place well in advance of the trial date.

The need is clear. Research by the Open University has suggested that there are more than 1,400 cases of sexual abuse against people with learning disabilities every year and only 1 per cent end in a successful prosecution. Even if it goes to court, the victim often does not appear. Unlike children, people with learning difficulties are not permitted the protection of giving evidence via a video link with the court from another room.

Simon Richardson, a solicitor in Derby who has dealt with many cases of people with learning disabilities, said defendants with learning difficulties were disadvantaged by the justice system, too, even from the earliest stages. Research carried out by police in Derbyshire showed a large majority of the learning disabled were not offered the attendance of an appropriate adult during interviews despite a legal requirement that they should have one.

Mr Richardson said every case was different and there were occasions when the victim should not go into the witness box because of the potential negative effect upon them. "But in a lot of cases they produce evidence which is believable and they want to go ahead and they are told they can't. It's very sad. People with learning disabilities don't lie. They can't maintain a lie."

June Raybaud, a barrister and aunt of a woman who was abused, said it was a civil liberties issue. She is a member of a group called Justice for the Victims of Longcare, which was set up by families of residents of two residential homes run by a company called Longcare in Buckinghamshire where people with learning difficulties were abused.

They believe that as an absolute minimum, vulnerable witnesses should be allowed to give evidence with the assistance of an interpreter and should be afforded the same treatment as children before the courts. Mrs Raybaud was critical, too, of the Crown Prosecution Service for preventing cases going to court. "The CPS should stop acting as judge and jury in deciding that these people are incompetent and would make bad witnesses."

Yet Amanda Pinto, one of the barristers who appeared for the prosecution in a case against three Longcare staff convicted of ill-treating and neglecting residents earlier this year, was more cautious. She said potential witnesses had to be assessed as to whether they know right or wrong - the classic test applied to possible child witnesses - but also for suggestibility. "There is a question of how much they sway in response to a leading question, and also how confused or misled they would be by leading questions," she said.

It is not a question of defence counsel acting improperly or harshly. Simply phrasing a question so as to suggest a certain answer might prompt the "wrong" response from a person with learning disabilities, many of whom are characteristically eager to please.

"The vast majority, if not all of those that we were dealing with would have been at the least confused and shifted their ground and said things they didn't really mean to accommodate the questioner."

This could have left them at a huge disadvantage. "By the end, they could have reneged as a result of completely proper questioning or they could have got themselves so upset that the end result wasn't in their interests or the interests of the prosecution."

It was a fundamental right established in the system that the defence had to be able to cross-examine a witness, Miss Pinto added.

The Government is aware of the concerns and the Home Office has promised to include the question of people with learning disabilities in its review of "vulnerable" witnesses currently under way.

Simon Richardson believes much could be done now. Judges have it in their hands to ensure fair questioning, he said. "A judge ought to be able to control the way cross-examination is taking place."