Scottish Government

2 ACCESS TO JUSTICE

Introduction

2.1 This section covers the public authorities in this portfolio that between them have strategic roles in delivering access to justice in Scotland. These authorities include the Joint Police Boards and Forces, the Law Society for Scotland, the Scottish Legal Aid Board ( SLAB) and the Criminal Injuries Compensation Authority.

2.2 A number of Scottish Government agencies are also covered including the Scottish Court Service, Scottish Prison Service, and the Accountant in Bankruptcy as well as the Crown Office and Procurator Fiscal Service.

2.3 Many of these bodies have responsibilities not only in relation to access to justice, but also to hate crime, victim support and community safety.

Background: wider policy context and evidence

Wider policy context

2.4 Access to justice is a key issue for every person and in particular anyone who is subject to discrimination. Access to justice in Scotland can take many forms, including access to complaints procedures, tribunals and the court system. For disabled people there can be many barriers to accessing justice, from the physical barriers in different premises to the unseen barriers in the way the system operates.

2.5 In addition to the courts in Scotland, there are a number of tribunals which are relevant to disability equality, including the Employment Tribunal Service (governed at UK level), the Mental Health Tribunals established under the Mental Health (Care and Treatment) (Scotland) Act 2003 (addressed as part of the Health and Wellbeing portfolio) and the Additional Support Needs Tribunals established under the Education (Additional Support for Learning) (Scotland) Act 2004 (addressed as part of the Education and Lifelong Learning Portfolio).

2.6 The Adults with Incapacity (Scotland) Act 2001 provides a range of options for people who are or who may become incapable of managing their own financial or property affairs to make provision for how those affairs should be managed.

2.7 The Adults with Incapacity (Scotland) Act 2001 also established the Office of the Public Guardian. Its function is to supervise those people who are designated to look after the financial and property affairs of adults who lack the capacity to carry out these functions for themselves.

2.8 Access to legal aid has also been under review since 2003 when a major programme to reform civil legal aid was announced by the Scottish Executive. The review focuses on a number of issues related to legal aid which might be of relevance to disabled people such as accessibility, fairness, effectiveness and financial eligibility; however it was not specific to disabled people or disability issues.

2.9 This was followed by the Scottish Executive consultation document Advice for All: Publicly Funded Legal Assistance in Scotland: The Way Forward in 2005 which has lead to a number of new initiatives related to civil legal aid. This has included work to develop a national framework on legal advice and information, provision of research on this issue, mapping of needs and some pilot projects under the Legal Aid (Scotland) Act 1986 Part V. These pilot projects included the Disability Legal Advice Project aimed at providing specialist legal advice to clients with disabilities in Lanarkshire. The solicitor in this project provided secondary advice and training for advice agency staff and local solicitors and delivers a limited amount of legal aid casework. The initial evaluation of the pilot projects was positive therefore a second phase of the projects is being delivered.

2.10 The Law Society for Scotland allows solicitors to note any specialities and it is possible to search for solicitors by speciality through the Law Society for Scotland website, however despite there being categories for sex and race discrimination there is no category of disability discrimination, nor general equality and discrimination. For disabled people, this may make accessing justice difficult, as it might not always be easy to find a solicitor with the knowledge or experience to take the case. There clearly are solicitors with knowledge and experience in disability issues, but they are not categorised by the Law Society for Scotland in this way so that finding someone with the relevant knowledge might be difficult.

2.11 The Scottish Legal Aid Board ( SLAB) has a similar function on its website which does allow for potential clients to search for "discrimination & human rights" but does not disaggregate this information further. It does, however, have a separate category for "mental health and adults with incapacity". The Scottish Legal Aid Board information provided on solicitors also contains information about access to premises for example, one firm noted the existence of a ground floor boardroom used for consultation with disabled clients and disabled access at the rear of the building.

2.12 The Legal Profession and Legal Aid (Scotland) Act 2007, which established the Scottish Legal Complaints Commission, took over some of the Law Society for Scotland's regulatory and complaints functions during the course of 2008-9. The Act also made additional provisions relating to the Scottish Legal Aid Fund, including the creation of a register of organisations eligible to provide "advice and assistance". Along with the information provided by the Law Society for Scotland and the Scottish Legal Aid Board, these measures will make it easier for disabled people to access advice and assistance.

Research and statistical evidence

2.13 There is a paucity of statistical and qualitative data not only in relation to access to justice, but more generally relating to the justice portfolio. This, however, is an area that has been identified and is being addressed by some of the authorities within this portfolio .

2.14 One of the earlier pieces of research by Sutherland et al. (1999) and cited within the Disability Rights Commission Baseline Study (2001:115) identified factors preventing disabled people from using available legislation. These included the following

• Lack of support and legal advice
• Lack of well qualified solicitors
• Economic disadvantage preventing legal issues being a priority

2.15 Sutherland et al. concluded that to enable disabled people to better access the law would require authorities to address the underlying social and economic conditions which marginalised disabled people.

2.16 The Scottish Legal Aid Board annual report (2007) provides details of intimations of civil advice and assistance and Advice By Way of Representation ( ABWOR) by subject matter. Whilst the annual report does not specifically state how many cases relate to disability equality, it does provide the following breakdown of cases:

• 162 relate to human rights
• 1358 relate to mental health
• 563 to power of attorney in civil advice and assistance and
• 138 relate to employment tribunals
• 1408 relate to mental health in Advice By Way of Representation ( ABWOR)

2.17 Any one of the above cases could relate to disability equality. The annual report also provides information relating to intimations and application decisions disaggregated by gender but does not provide this information disaggregated by disability / non-disability or by specific impairment category.

2.18 The Scottish Legal Aid Board also conducted a survey of opponents in legal aid cases in 2007 which found that 22% of opponents surveyed had a disability and 76% did not have a disability, however this information is not further interpreted or disaggregated.

2.19 The Scottish Legal Aid Board commissioned research to support the development of their disability equality scheme. This research asked participants in focus groups to identify three issues out of a choice of nine which they thought were the most important to disabled people accessing legal aid. One of the focus groups convened was through a Centre for Independent Living and was for disabled people. The other focus group was for solicitors and was conducted by means of telephone interviews rather than a single group discussion. Solicitors selected "providing information about legal aid" as their top priority, followed by "registering and checking providers of legal aid", and "recruiting and employing people". Disabled people identified "providing information about legal aid" and the Scottish Legal Aid Board's approach to "recruiting and employing people" as well as its internal corporate functions as being important to disabled people accessing legal aid.

2.20 The Law Society for Scotland also commissioned research on equality and diversity in the legal profession related to the development of their disability equality scheme (Robertson & Robertson 2007). A survey of 10,000 solicitors was conducted and a response rate of 30% was achieved. Of those responding, 2% stated that they were disabled, 96% stated that they were not disabled and 2% did not specify. The research also disaggregated this information by impairment category as highlighted in table 1 below.

Table 1

Source: Equality and Diversity in the Legal Profession, Law Society for Scotland of Scotland 2007

The Law Society for Scotland does not currently provide similar information relating to clients or people trying to access justice.

2.21 The Mental Health Tribunal statistics for 2005-2006 (the most recent annual statistics) provide that 7315 Notifications were received. A total of 2741 Applications were dealt with, of which 1626 were Compulsory Treatment Order (S063) applications.

2.22 Information relating to the operation and instances of cases before the Additional Support Needs Tribunal can be found in the Education and Lifelong Learning Portfolio report.

2.23 The Scottish Prison Service 10 ^th annual prison survey (Scottish Prison Service, 2007) shows an increase in satisfaction by prisoners in relation to facilities for disabled visitors, with 71% stating that they are satisfied with the facilities and 7% being dissatisfied. This survey also looked at issues of mental health, considering whether prisoners felt optimistic or not, and specifically questioned awareness relating to Hepatitis C and use of medical and health services The survey also asks about bullying and whilst race and religion were named as potential causes or sources, disability was not, nor was there mention of facilities for disabled prisoners. Disabled visitors, on the other hand, were mentioned in the executive summary.

2.24 The Scottish Prison Service provides details of the current prison population on their website (Scottish Prison Service, 2008), however, this information does not comment on disabled prisoners. The Scottish Executive Statistical Bulletin Criminal Justice Series on Prison Statistics in Scotland 2007/8 provides information on the prison population disaggregated by gender, age, religion, and race but not by disability (Scottish Government 2008a:5).

2.25 The Office of the Public Guardian provides details of their performance statistics on their website (Office of the Public Guardian, 2008). Whilst the applications received by the Office of the Public Guardian all relate to incapacity, some will relate to current incapacity and others to future incapacity, however this information is not provided in the statistics. In 2007/8 the Office of the Public Guardian handled 32,066 applications for Power of Attorney, 271 Intervention Orders and 1348 Guardianship Orders.

2.26 There are various sets of statistics related to the justice portfolio, for instance, Scottish Executive Statistical Bulletins: Recorded Crime in Scotland 2004/5 and Domestic Abuse in Scotland 2004, and the Scottish Crime and Victimisation Survey 2006. However there are few specific references to disability. In the absence of published data and research it difficult to evidence and to measure progress towards disability equality.

Reporting on progress towards equality of opportunity

Introduction

2.27 The policy sections above highlight the lack of baseline data in relation to disabled people within the justice system. Whilst there is some information relating to those working within the justice system, there is a lack of evidence relating to those trying to access justice as users of the system.

2.28 The next sections draw from the schemes, action plans and annual reports of public authorities listed in 2.1 and 2.2 aims to identify areas of progress as well as areas still requiring attention. In addition, it draws from the Scottish Government's own scheme, particularly the work of the justice directorates.

Areas where progress is evident

2.29 Progress was found to be evident in relation to:

• Accessibility
• Impact Assessment
• Training
• Communication and Marketing
• Employment and Procurement

Accessibility

2.30 Many of the public authorities have considered issues relating to accessibility, with particular reference to premises and communications.

2.31 In relation to premises, a number of public authorities had engaged the local access panel, disabled people or other disability organisations to conduct an audit of the premises and then took action to implement the recommendations. One police force particularly noted actions to ensure that custody facilities were appropriate for disabled people, not only through building a disabled accessible cell block but by ensuring that personal support was available for disabled people in custody, although the type of personal support provided was not specified. These activities by the police link well with the actions noted by some joint police boards for Independent Custody Visitors to note and report any equality issues during their visits, and the action of one joint police board to make available a list of custody suites which are wheelchair accessible.

2.32 Some public authorities had also given consideration to existing access arrangements such as displaying access plans on their website. A buddy system was also provided on some premises, so that a disabled person might be helped to leave the building in case of fire. Vibrating pagers were also provided by some public bodies for people who are unable to hear a fire alarm.

2.33 In relation to communications, many of the public authorities had ensured that their websites were accessible by gaining AA or AAA accreditation. Many also noted actions to ensure other information was accessible, for example, through use of large font, positive images of disabled people and adapted logos. Many of the public authorities also noted activities to ensure the availability of British Sign Language ( BSL) interpreters and the training of front line staff to identify this need and to be able to communicate in BSL themselves.

2.34 There were also a number of initiatives by specific public authorities relating to their particular remit, for example one police force had a system whereby members of staff highlight in their reports to the Crown Office and Procurator Fiscal Service ( COPFS) and the Scottish Court Service whether anyone involved in the case had a disability and might require reasonable adjustments. A number of police forces also noted actions to make transport of disabled people in custody accessible. For most this entailed having contracts with a local taxi firm to provide accessible taxis. One joint police board had made a specific commitment to ensuring that, when a Police Appeals Tribunal was held, its timing, location, room layout and support would also take account of disability equality.

2.35 The Scottish Government is also considering a number of specific initiatives linked to accessibility which would improve access to justice, including creating a Scottish Sentencing Council to give effect to sentencing guidelines, considering the case for specialist discrimination courts and technically qualified assessors to assist courts in discrimination cases, and reform of the tribunal system. They are also considering provision of publicly funded legal assistance in Mental Health Review Tribunals and Additional Support Needs Tribunals and reviewing financial eligibility for legal access and identifying access and eligibility issues impacting on disabled people, all of which would improve disability equality in accessing justice.

2.36 The Crown Office and Procurator Fiscal Service ( COPFS) are investigating methods of monitoring cases involving disabled people to ensure that case marking processes do not discriminate against them and is working with ACPOS to develop processes through which the needs of disabled witnesses can be effectively communicated between justice agencies.

Impact Assessment

2.37 Most of the public authorities highlighted having an equality impact assessment process including disability issues. Many provided a copy of the process as part of their schemes or provided a list of the policies which had been assessed, or in the case of those with numerous policies those which had been assessed as having a high impact. Some public authorities also provided the equality impact assessment reports and the relevant policies on their websites. A number of the public authorities highlighted equality impact assessment as an action to be undertaken.

Training

2.38 Training was a key element identified in many of the schemes examined, in particular training on equality impact assessment and disability awareness. Some of this training was delivered in-house and some delivered by external consultants and disability organisations. Some of those highlighting training as a key action also referred to the need to ensure that the training was delivered in an appropriate way which was accessible for disabled people, and the need to monitor the impact of the training to ensure its effectiveness and the retention of knowledge. One particular police force provided training and support specifically on the use of the Appropriate Adult Scheme and another used training to raise awareness of disability issues, including the impact of crime on disabled people and the importance of an early response. Amongst those public authorities delivering training to staff there were some who chose to identify specific key staff to participate in training and others who stated that all staff would or had undertaken the training.

Communication and Marketing

2.39 Communications and marketing was an area where many of the public authorities had undertaken some actions, in relation to both internal and external communications.

2.40 The Scottish Prison Service and Capability Scotland have recently launched two publications aimed at ensuring that disability equality informs the work of all prisons in Scotland. The publications, "Plain Talking" and a Handy Hints guide provide information for prison staff on language which disabled people find acceptable and offensive, and information clarifying some of the myths around disability as well as practical tips on how to treat everyone with dignity and respect.

2.41 A number of police forces identified various communications actions to promote disability equality, for example, monitoring crimes against disabled people and using this information to allocate resources and develop reporting systems so that it is possible to record whether the individual (complainer, witness or suspect) has a disability.

2.42 Many of the public authorities highlighted their actions to build links with external organisations and to use these to disseminate information to disabled people. In particular, the Scottish Legal Aid Board highlighted their discussions with other justice agencies in relation to formal collaboration on improving accessibility of law firms.

2.42 The police forces had undertaken a range of communication actions aimed at making their service more accessible for disabled people, for example, developing third party reporting schemes and remote reporting provision such as web-kiosks, as well as developments in the use of SMS messaging services for non-emergency and emergency calls. A number of the police forces had also developed impairment specific actions such as creating a DVD about the police in conjunction with the local school for D/deaf People, and developing an officer verification scheme where officers carry a card which has the name of the police force and contact number on it in large print and Braille so that visually impaired people can call the number and get verification of their identity. One police force had also, in conjunction with various autism groups, developed a communication tool for disabled people with autism to communicate with the police. This autism support card details contacts and support needs of the person carrying the card and is supported by a training video which is broadcast on internal police TV.

2.43 Many of the public authorities highlighted actions to communicate internally and externally by means of their own and others newsletters, and through use of local media, including for example, regular interviews in talking newspapers or on the radio on issues of relevance to people with visual impairments.

2.44 One joint police board specifically noted the need to ensure that the budget set for the force is at a level which enables the commitment to the promotion of disability equality to be resourced. This is a key issue for all public authorities in promoting disability equality.

Employment and procurement

2.45 Employment and procurement are key areas where public authorities can promote disability equality, and employment in particular was an area where most public authorities within this portfolio had undertaken some work.

2.46 Many of the public authorities had created disabled staff fora or had added a disability remit to existing staff fora or advisory groups. Some had also included carers in these fora as well as disabled staff or those with an interest in the issues.

2.47 A number of the public authorities noted specific activities to promote recruitment of disabled staff or to ensure that their recruitment processes did not discriminate, for example holding a recruitment day specifically for disabled people, using a diversity recruiting team to specifically promote opportunities to underrepresented / marginalised communities, developing or updating employment monitoring forms, providing recruitment information in Braille, large print and audio and accepting applications in a range of formats such as handwritten, typed, audio or by submission online. One particular police force noted that its staff would also transcribe employment audio submissions onto an application form. The majority of the public authorities highlighted that they participated in the Double Tick Scheme to demonstrate that they are positive about employing disabled people and meet the standards of the scheme.

2.48 Many of the public authorities noted specific actions to assist existing disabled employees, including making appropriate reasonable adjustments and having a robust process by which to identify these (including monitoring and responding to any change in circumstances). Some examples of specific reasonable adjustments included allowing more time in entrance examinations for applicants and providing palmtop computers for staff with dyslexia; modified working hours for staff members with mental health issues; and purchase of specific computer software to assist disabled staff.

2.49 Some of the public authorities also noted the existence of processes for supporting staff to raise issues relating to disability including bullying or harassment. Some of this support was provided in-house, for example, through harassment contact officers and some by external agencies. One joint police board also mentioned monitoring the number of complaints made by disabled persons against constables and ensuring that they were properly dealt with.

2.50 In relation to procurement, some of the public authorities mentioned including disability equality in their procurement processes. For example, in some cases a contract clause on equality and diversity was written into all contracts, stating that the contractor would meet all the equality obligations of the service. The Law Society for Scotland specifically noted that equality and diversity criteria have been included in the accreditation standards for external providers of legal education.

Areas where progress is less evident

2.51 The following are areas where progress has been less evident:

• Understanding the definition of disability / categories of impairment
• Availability of data
• Mainstreaming disability issues into all aspects of institutional policy and practice

Understanding the definition of disability / categories of impairment

2.52 There was a lack of reference to the range of disabilities, with many schemes referring only to "disability". This may reflect the early stage of the disability equality duty, which has been in place for less than 2 years. With the passsge of time, organisations' understanding of "disability" might change and reflect different categories of impairment more explicitly.

Availability of data

2.53 As highlighted in the policy section, there is little baseline data from which progress can be monitored either as a service provider (for example, the number of disabled service users, types of services most used) or as an employer (number of disabled employees, including roles and levels, numbers of disabled people applying for posts and their progression rates). For those that did provide these data, few then made further connections to actions to progress disability equality.

2.54 A number of public authorities noted issues relating to staff disclosure of disabilities. In particular, many commented that they believed the number of staff disclosing a disability was lower than the actual figure. Whilst many commented on this, few identified the underlying reasons or proposed actions to address the problem.

2.55 For most public authorities, there is little or no mention of how the impact of attending training and awareness raising was to be evaluated in terms of the objectives in the schemes.

Mainstreaming

2.56 There were a number of cases where the scheme identified a specific problem, but there was no follow-through to the action plan and annual report. For example, many of the police forces identified that there was under-reporting of disabled employees, but few had addressed this as part of their action plan.

2.57 A number of joint police boards stated that they were satisfied with the progress the police force was making towards disability equality, but did not provide evidence as to why they were satisfied. The joint police boards also appeared to be mostly focused on what the police force was doing in relation to its duties to promote disability equality, rather than considering their own specific duties in this regard.

Summary and conclusion

2.58 The majority of public authorities are addressing the disability equality duty. Some public authorities are developing creative means of making progress (see for example the areas of progress above). Two public authorities consider that they were covered by the local authority scheme, so had not produced their own; and two had schemes which were available in hard copy only.

2.59 All public authorities are affected to some extent by the lack of baseline data particularly in relation to service users. Without data identifying the number of disabled people trying to access justice via the different public authorities, it is difficult for these bodies to formulate meaningful actions and outcomes and to measure these effectively. However the collation of some of these data is within the power of the relevant bodies, although few identified data collection as an action beyond the consultation and involvement activities undertaken to inform the develop of their disability equality schemes.

2.60 Many the public authorities did not use the small amount of data that is available, or did not relate this to their action plans. Without establishing the baseline from which to measure progress, it is unclear how these public authorities will measure their achievements towards disability equality.

2.61 A number of public authorities have explicitly stated that they have adopted the social model of disability, though some of these more recently than others. Many of these public authorities have sought or are in the process of seeking advice and expertise from disability organisations and have been using this information to mainstream disability equality within their work.

2.62 Public authorities will be able to develop clearer outcomes, actions, timescales and targets if they are able to access better baseline data and consider outcomes for specific impairment categories rather than considering "disability" as a whole entity.