A legal inquiry into whether people with mental health conditions, cognitive impairments and conditions including autism are experiencing discrimination in the criminal justice system was launched on 1 March by the Equality and Human Rights Commission.

The inquiry will focus on the accused person’s experiences after they are charged with an offence until the start of their trial. This is when critical decisions such as deciding on their plea or whether they are to be granted bail or kept on remand, are made and when special measures for trial would be put in place.

It will explore whether the accused’s needs are properly identified and whether adjustments that are legally required by the Equality Act 2010 and human rights law are put in place to ensure they understand what they are charged with and the process they are going through, and can participate as effectively and fully as possible in the process. Relevant adjustments may include allowing extra time and regular breaks in hearings, or providing information using visual aids.

The inquiry will also examine how steps to reform the court system in Scotland could affect an accused’s ability to participate in legal proceedings. We will collect evidence from accused people and experts in this area, as well as court staff, legal representatives, judges and other criminal justice professionals.

Lesley Sawyers, Equality and Human Rights Commission Scotland Commissioner, said:

'The criminal justice system is complex and people with impairments such as autism and mental health conditions can find it particularly difficult to navigate. It is essential that the justice system works fairly and equally for everyone and that anyone accused of a crime is able to participate effectively in the criminal process. If disabled people’s needs aren’t properly identified and taken into account from the start, they may not understand the charges they face, the advice they receive or the process they are going through. In some cases, this could mean they are wrongly convicted or receive inappropriate sentences.'

The inquiry responds to significant concerns from charities, lawyers and accused’s families that some people are being put at a disadvantage because adjustments are not being made to meet their specific needs. It follows our recent Is Scotland Fairer? report on the state of equality in Scotland, which found that disabled people have low levels of trust in the criminal justice system. 

Find out more about the inquiry and see the full terms of reference.

The inquiry will conclude by the end of 2019.