Justice for all? – Learning Disabilities and the Law

Callum April 9, 2014 1
Justice for all? – Learning Disabilities and the Law

It’s estimated that 30% of the current prison population has an IQ of 79 or under. Could more be done to support people with learning disabilities going through the complexities of the criminal justice system? Ruth Stivey investigates…

Learning disability affects around 1.5 million people in the UK, many of whom fail to receive the right support. The results of this can be seen in the proportion of children with learning disabilities who are bullied, the misdiagnoses from doctors lacking suitable training and in some cases, premature death. But in one area at least, pioneering work is currently underway aimed at highlighting the issues faced by people with learning disabilities within the judicial process.

Last month saw the publication of a report jointly produced by the Care Quality Commission (CQC) and Her Majesty’s Inspectorate of Probation, Constabulary and HM Crown Prosecution Inspectorate (HMCPSI) – and people seem to be listening.

PX Learning Disabilities Thematic report

Identifying problems
The paper, A joint inspection of the treatment of offenders with learning disabilities within the criminal justice system: phase 1 – from arrest to sentence [PDF], scrutinises the arrest and sentencing process and provides a series of recommendations. The latter calls for better communication and understanding, as well greater levels of support and accessibility provision. For those sceptical that such reports are often not acted upon, the recommendation of this particular inspection will apparently be monitored by the aforementioned inspectorates.

It’s an initiative that’s come from the top, but Juliet Lyon, Director of the Prison Reform Trust, is quick to stress just how deeply inequality is entrenched within the system: “For too long, people with a learning disability – many of whom should be diverted from police stations and courts into social care – have ended up in prison as a default option, while others are left without the support they need as they continue through the justice process.”

With the custody clock ticking, everyone involved wants the process of arresting and charging someone to be dealt with as swiftly as possible. This can lead to obvious problems, however , with health issues not being acknowledged, suitable help not given when it’s needed, and in more serious cases, cautions given out without the consequences being fully realised and even false admissions of guilt.

A huge problem is correctly identifying people with learning disabilities in the first instance. They will often not be visible, or indeed properly understood by the person themselves.

“People don’t appear with little badges to say ‘I’ve got this’ or ‘I’ve got that’, and that is a difficulty,” observes John Lock – a JP of 14 years and lead at the Magistrates’ Association’s Mental Health Working Group. “This is a system with people moving very quickly, and the challenge is all the way through – from the custody suites, to the Community Psychiatric Nurses, triage cars and police authorities. The Issues need to be identified quickly and appropriately.”

PX 14743759Difficult definitions
Vulnerable people stand to suffer a great injustice if their disability is not recognised by the police, or if the relevant information is not passed on to the HMCPSI. According to Michael Fuller, Chief Inspector at the HMCPSI, “The risk then is that people don’t understand what is happening to them, are not able to give accurate responses to questions and are treated unjustly. You want a just treatment by people, so there is a balance between holding people to account for offending, but also ensuring they are properly supported.”

One of the underlying issues is that many people do not know what constitutes a learning disability, or the difference between that and a learning difficulty or a mental health diagnosis. Some people will have all three. While researching this feature, what came across from people specialising in learning disabilities was that these contradictory requirements and confused definitions are prevalent.

“So many people confuse mental health with learning disabilities,” says Mencap Cymru Director, Wayne Crocker. As well as working with people with learning disabilities for 20 years, he is also a magistrate and chairs the Criminal Justice Learning Disability Network. “It is the age-old problem. The clear definition of a learning disability is an IQ of under 70, then less social skills.”

To combat this identification problem, a liaison and diversion pilot scheme is being rolled out in 10 areas around the country. It was meant to be in place nationally by this year, but is now scheduled for 2017/18. It is hoped that by having psychiatric nurses based in police stations and courts, they will be able to identify individuals with learning disabilities, help them access any support they might need or divert them to an appropriate service

Appropriate adults
Once a learning disability has been recognised, the best thing is for an appropriate adult (AA) to be present. The latest CQC and HM Inspectorates report recommends this, but it is little different to what is already stipulated under the Police and Criminal Evidence Act 1984.

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With nurses present in police stations and courts, the number of people identified with having learning disabilities will likely increase, with a corresponding rise in demand for AAs. But the need for AAs to be present remains a non-statutory requirement. Given that they tend to be supplied by a combination of adult social services, mental health trusts and charities, AA provision across the country can be patchy. With further cuts to council budgets due this month, it is widely expected that the services likely to be dropped first will be those that non-statutory. As a result, many valuable trained and vetted community volunteers could be lost.

Without a properly trained AA present during the arrest and interview process, the type of rigid and institutional language used may be liable to misinterpretation, or even incomprehensible. It’s often the case that parents and carers without legal training find themselves filling the role, with the result that people do not get to access their full rights.

“It is hard to know what happens when an AA is not there,” says Chris Bath, Chief Executive of the National Appropriate Adult Network, “but the obvious is false confessions and agreeing to statements because they are under a certain amount of pressure. You hear stories about people asking why someone had admitted to a crime when they weren’t even in the country at the time, and the response is ‘The police officer seemed really angry. I wanted to make him happy so I just said I did it’.”

PX Billy Devenport2

Billy Devenport, Operations Manager at Bradford Probation

Suitable outcomes
Further adjustments to be looked into include using suitable outcomes when sentencing.

As far as Bradford Probation’s Operations Manager, Billy Devenport, is concerned, “Support and intervention packages that are adaptable, so you can move with the offender and they understand what is happening and their environment, are crucial. If offenders actively engage in their sentence plans, understand what interventions there are and have access to appropriate services, putting adjustments in place could reduce offending rates.

“Once you have that foundation and better understanding, then you get better compliance and ultimately reduce reoffending rates.”

If a person reaches court and there is not someone present akin to an AA, what happens next is largely left up to the court. In John Lock’s view, “I think the role for the justice is to trust your senses – it is a responsibility to look at the situation and the person, use common sense and ask questions. Does this person understand? Does it feel right? Does it look right? If you use jargon and don’t use eye contact, that’s not good.”

One of Mencap’s learning disability trainers, Theo [pseudonym] went through the criminal justice system and spend a year in jail. He says now, “I wish they’d used simpler words I would understand instead of big terminology words. If a police officer knows someone has a learning disability then they might be able to do something for that person so they can understand.”

In some instances, the use of Easy Read materials, where information is presented through pictures and straightforward captions, have been hailed a success. This is what seems to be paramount – encouraging small changes that can make all the difference. How much does showing compassion, simplifying language, supporting the vulnerable and taking the time to explain what is happening really cost?

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Case Study
Mike [pseudonym] is a disability awareness trainer for the KeyRing supported living organisation. He has a learning disability and has been arrested twice in the past.

I was one of these people who used to ‘buy’ my friends, and I got involved with the wrong crowd because I haven’t got a good sense of judgement of people. The first time I was arrested I was scared, because I didn’t know why – I was just standing outside a house waiting for my friends. The next thing I know is I get a tap on the shoulder and asked what I was doing, and they said the house had been burgled and I got arrested.

Because I was not at the premises, they dropped it to ‘aiding and abetting’ as they thought I was a look-out. I wasn’t the look out, I didn’t even know my friends were doing it. I told the police but it was my word against theirs.

I told the police that I had a disability and they asked if I wanted anyone notified and I said my social worker. I was under the learning disability team and my social worker tried to explain everything because I didn’t understand. I didn’t know what ‘aiding and abetting’ was and some of the legal jargon.

It took a few weeks before I went to court, and if I didn’t have my social worker there to support me it would have worked out a lot worse I think. I was sort of scared going to the magistrates’ court, but what made me more scared was when they gave us probation for 12 months and the social worker and solicitor told me I was that close to going to prison!

The next time I got arrested was when I befriended a drug baron and he took over my flat and turned it into a smack den. My neighbour told the police and they raided the flat, arrested me and threw me in the back of a police van. But I felt relieved when I was at the police station, I got de-arrested and they had had a tip off I was being bullied by the drug baron.

Mam got me involved with KeyRing and now my life is brilliant and I’ve got good friends. I spend a lot of time training solicitors, prison officers and probation workers and talk about my experiences. I’m a good public speaker and I like helping people and keeping them out of prison.

The Professionals’ View

PX HMCPSI“The findings in the report were deeply concerning, but I don’t think any were insurmountable. There is acceptance in the criminal justice system that this is a real and genuine problem. We’ve highlighted the problems and now there needs to be joined up working. There is no reason we shouldn’t be a beacon of excellence in Britain.”
– Michael Fuller, Chief Inspector, Her Majesty’s Crown Prosecution Service Inspectorate

PX 11868965193_958e5b6ff8_o“People with learning disabilities who come into contact with police or courts should have access to the same NHS services and treatments as anyone else. That’s why we’re investing £25 million in liaison and diversion services at police services and courts across the country. These will help identify vulnerable people in police stations or involved in courts and make sure they get the help and support they need.”
– Norman Lamb, Care and Support Minister

PX photo“My general ongoing perception, recently fuelled by one of my current cases, is that the police are uninterested in adding learning or mental health issues to the context of their investigations. I am utterly unsurprised that in two thirds of cases the CPS were not provided with requisite information. I am, however, happy to say there have been recent incremental improvements at the way referrals are made at the Oxford Magistrates Court. NHS Liaison and Diversion team were are able to make referrals in respect of those who we believe would benefit.”
– Stuart Matthews, Director and Solicitor-Advocate at Reeds Solicitors

One Comment »

  1. Jo Bowles July 4, 2014 at 3:15 pm - Reply

    As a RNLD ,this news is long waited for. People with Learning disabilities who commit crimes, however small are either “let off because of the LD” or bullied in prisons due to their lack of understanding and the sheer desire to “Fit in”. Their vulnerability has been over looked for far too long!

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