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The ABCs of fair trials: language in the juvenile justice system

editor - September 18, 2017 - juvenile justice, plain language, right to information

For people to exercise their rights, they need to first understand them. This is particularly true for minors and people with language deficiencies. In this post, Mai Fleetwood-Bird, a lecturer and researcher at the department of health law of the Erasmus School of Law (Rotterdam), illustrates the language challenges within the juvenile justice system and offers some recommendations to improve fair trial safeguards for minors. Mai has been working as a speech and language therapist for 20 years in the Rotterdam area, including with young people with speech and language difficulties in primary care.

Research in recent years in the United States, England and Australia around language skills of young offenders has demonstrated that a large percentage of juveniles in the criminal justice system have a significant, and earlier undiagnosed severe language disorder. Evidence is accumulating that language competences are being identified as a ‘key-competence’. [1]

Research in the Netherlands has brought to light that 90% of the juveniles have a language disorder of some kind, and 76.7%, have a severe language disorder. These findings are consistent with linguistic research of delinquent youth in England, where the percentage of language disorders was 73.3%. [2]

The language problems of these young people can be seen as an 'invisible disability' within the juvenile justice system. The fact that a young person who comes into contact with criminal law may have undetected severe language problems has wide implications for the juvenile justice system, particularly when fair trial principles are at stake, such as the right to remain silent, access to justice and the right to be heard. These problems should be taken into account at all stages of the criminal proceedings.hammer

Article 12 CRC (the Right to be heard) is essential for the juvenile who has come into contact with the judicial system and extends to every professional in the chain during the entire proceedings. For the police this means that the suspect is entitled to express his version of the facts of the case. The juvenile must, therefore, be informed from the start of the proceedings what his rights are, and what they contain.

A major risk of undiagnosed language problems [3] is that under pressure - for example during questioning – this person will probably give a ‘one-word-sentence’ answer, will not be accurate and will give vague answers. Juveniles develop (consciously or unconsciously) ways to cover up their language problems, for example, by repeating words or phrases used by the interviewer, by giving stereotyped answers, or affirmative answers to yes/no questions, even if they do not understand the question and by using short stop words like "thing", "uuum", "dunno", "maybe". This is accompanied by poor eye contact and an occasional shrug. [4]

One possible consequence of these language problems is that the interviewer wrongly assumes that this behaviour arises from social or emotional factors (e.g. avoidance behaviour, rudeness or refusal to cooperate with the interviewer) and not from an underlying language problem. This misinterpretation may compel the interviewer to ask longer and more persistent questions, leading to even less clear answers as a result. [5]

When it comes to storytelling, language research has detected more reasons for concern. Juveniles with a severe language problem are much less able to tell a chronological story. This means that they find themselves at a disadvantage when it comes to telling ‘their story’, a crucial skill during interrogation and during the interactions in the courtroom. They leave out important details or fail to provide full information on the facts. In addition, the absent, or diminished, ability of the suspect to engage in ‘conversational repair’ [6] might lead to misunderstandings. If the interviewer is unaware of the underlying language problem, parts of the story might be misunderstood, not believed, or will never surface in the first place. [7]

This knowledge is not only important to the police officer and the professionals in court but also to the lawyer of the young suspect. After all, part of the defence strategy of the accused is based on the story provided.

In the Netherlands, it is common practice at the police station that ‘third parties’ join the interrogation once the interviewers believe that the nature of the offence or the physical or mental condition of the accused make this necessary. [8] Dealing with a suspect with severe language problems would, in my view, be a sufficient reason to do the same. A ‘third party’ should in this case be an expert, such as a (forensic) speech and language therapist, or an intermediary [9] (like in the English model).

Another recommendation which can be made is to organise proper training for anyone dealing with these vulnerable suspects, [10] specifically to diagnose severe language problems in young offenders and to apply communication techniques to ensure and facilitate accurate communication.

The last recommendation has to do with the development of an accessible, validated language screening that can be carried out by multiple professionals, for example by police officers. [11] The problem of 'invisible disability' can be overcome to a great extent if a short, simple language screening is carried out as early as possible. [12] [13]

By providing for early identification mechanisms, the State will honour the positive obligations and the 'special protection measures' resulting from international, European and national standards, and the rights of the juvenile suspects with severe language problems will enjoy greater safeguards.

* This post is based on the developing dissertation of van Dijk – Fleetwood-Bird: ‘Caught by language’, Oral language competence of young offenders and the implications for the Dutch Youth Justice System. Promotores: Prof. M.J.A.M. Buijsen, Prof. P.C. Snow & mr. dr. J. uit Beijerse. Contact: [email protected]

[1] P.C. Snow et.al., “Improving communication outcomes for young offenders: A proposed response to intervention framework”, International Journal of Language & Communication disorders 50-1 (2015): 1-13. [2] K. Bryan, “Preliminary study of the prevalence of speech and language difficulties in young offenders”, International Journal of Language and Communication Disorders 39-3 (2004): 391–400; K. Bryan, J. Freer & C. Furlong, “Language and communication difficulties in juvenile offenders”, International journal of language & communication disorders 42-5 (2007): 505-520. [3] These language difficulties express themselves in poor auditory skills, a small vocabulary and poor narrative skills. See: P. C. Snow & M. B. Powell, “Oral Language Competence, Social Skills and High-risk Boys: What are Juvenile Offenders Trying to Tell us?”, Children & Society 22-1 (2008): 16-28. [4] P.C. Snow & M. Powell, “Contemporary Comments, Interviewing juvenile offenders: The importance of oral language competence”, Current Issues in Criminal Justice 16-2 (2004): 223. [5] P.C. Snow & D.D. Sanger, “Restorative justice conferencing and the youth offender: Exploring the role of oral language competence”, International Journal of Language and Communication Disorders 46-3 (2011): 324-333. [6] A ‘conversational repair’ is the ability of a person to recognize that the listener did not understand something and then ‘fix’ it. This causes problems for juveniles with a severe language problem because they are not very good at it. Moreover, the balance of power during such an interview or interrogation does not provide enough incentive for the juvenile to engage in a 'conversational repair'. [7] P.C. Snow & M. Powell, “Contemporary Comments, Interviewing juvenile offenders: The importance of oral language competence”, Current Issues in Criminal Justice 16-2 (2004): 223. [8] G.J. Pulles, VN Gehandicaptenverdrag, Tekst en Toelichting (Den Haag: Boom juridisch, 2016), 57. [9] In England, there is a 'special measure' included in the Youth Justice and Criminal Evidence Act 1999 (Youth Justice and Criminal Evidence Act 1999, section 29. Accessed May 12, 2017. http://www.legislation.gov.uk/ukpga/1999/23/contents.) which can helps juvenile witnesses before and during trial to use so-called "Intermediaries". The judge will determine whether this special provision is needed. All young witnesses under 18 with a communication problem may qualify for this special provision, but also (adult) witnesses and suspects with a severe language problem, with deafness or a hearing impediment, a learning disability or a mental problem. [10] Defence for Children International The Netherlands – ECPAT The Netherlands: Procedural Rights of Juveniles Suspected or Accused in the European Union, Terres des Hommes: 14 November 2016, 50-52.;VN Kinderrechtencomité, General Comment nr. 10 (CRC/C/GC/10), 25 April 2007, par. 63., VN Kinderrechtencomité, General Comment nr. 20 (CRC/C/GC/20), 6 December 2016, par. 23 and VN Kinderrechtencomité, General Comment nr. 1 (CRC/C/GC/1), 19 May 2014, par. 39. [11] The use of a universal language screening for juveniles who come into contact with the justice system is also recommended by Snow and others in: P.C. Snow et.al., “Improving communication outcomes for young offenders: A proposed response to intervention framework”, International Journal of Language & Communication disorders 50-1 (2015): 1-13. [12]Similar to the SCIL instrument developed in the Netherlands, to identify slightly mentally disabled young people, including young offenders). [13] See: SCIL 14-17 and SCIL 18+ from: H. Kaal et. al., “Identifying offenders with an intellectual disability in detention in The Netherlands”, Journal of Intellectual Disabilities and Offending Behaviour 6-2 (2015): 94-101.

As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials. If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71. For regular updates follow Fair Trials on Twitter and Facebook or sign up to our newsletter at the bottom of the page. FB iconClick to share this story on Facebook

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