Journeys through the Criminal Justice System for Suspects, Accused and Offenders with Learning Disabilities. A Graphic Representation

Transcription

1 Journeys through the Criminal Justice System for Suspects, Accused and Offenders with Learning Disabilities A Graphic Representation 0

2 Contents Introduction page 2 Methodology page 4 Stage One Getting into trouble (Again?) page 5 Stage Two Detention, arrest and charge page 9 Stage Three Police decision making page 13 Stage Four Interviews and appropriate adults page 14 Stage Five Trial/Court page 17 Stage Six Prison page 24 Stage Seven Disposals under the Criminal Procedures page 28 (Scotland) Act 1995/ Mental Health (Care and Treatment) (Scotland) Act Conclusion page 31 1

3 Introduction Over recent years, considerable energy has been invested into the issue of people with learning disabilities as offenders in the criminal justice system, whether by academia, policy makers, practitioners and voluntary sector organisations. This is in recognition of the particular barriers within both social care and the criminal justice system, which in interaction with a person s impairment, may cause them to be disadvantaged in comparison to other individuals within that system. In Scotland, the Scottish Government s recognition of the issue dates back to The same as you? policy and continues to be a focus in its successor The keys to life, which dedicates a chapter and several recommendations to it. It is clear that we are only just beginning to understand the scale and nature of the issue. This small piece of research is designed to set out the pathway through the criminal justice system which a person with learning disability might undergo, as well as identifying some of the tensions and difficulties which may affect their outcomes. It is unlikely that this research will be able to account for every circumstance and eventuality, given the diversity of individuals who may enter the system and the complexity of individual and organisational responses therein. 2

4 However, it is hoped that the pathway can be a useful guide to both people with learning disabilities, practitioners, policy makers, criminal justice, health and social care professionals. Furthermore, given the changes which are taking place within the system in Scotland, it should remain a living document. It should also trigger further and more narrowly focussed research and mapping into specific areas of the system which have been flagged up as problematic here. Perhaps too much emphasis has been placed on prevalence. While it is clearly helpful for service planning and budgeting to have some understanding of the cost of providing services, much academic research has become overly focussed on the idea of identifying the number or proportion of people with learning disabilities within a given part of the criminal justice system. This has been to the detriment of understanding which supports and interventions could be put in place for offenders with learning disabilities. It is not clear that, even once a given screening tool has flagged the potential for a person to have a learning disability, there are effective referral processes for diagnosis or appropriate supports, interventions or treatment programmes. People with learning disabilities are just one of a number of vulnerable groups who must be supported within the criminal justice system. Striking the right balance between punishment and rehabilitation is complex and resource intensive work and it is clear that all parts of the criminal justice system are constrained by resources. 3

5 Recommendations for further work include: Inclusive research which places the voices and experiences of people with learning disabilities at its heart. Without understanding the lived experiences of offenders with learning disabilities, there can be little doubt that our picture of this aspect of the criminal justice system is incomplete. An analysis of practice across different geographical areas, which the current report has not provided, and which is likely to mean that offenders in different areas are treated quite differently 4

6 Methodology In order to gain an understanding of the broad picture of the criminal justice system and the interaction of people with learning disabilities as suspects, accused or offenders within it, the following has been undertaken: A literature review into different areas of the criminal justice system in Scotland. Semi-structured interviews with key professionals working within different branches of the criminal justice system and with experts in the field, sampled purposively. The confidentiality of participants has been protected. Interview questions changed according to the role of the individual in question, but all interviewees were asked some common questions. It was hoped that a number of case studies would be completed that would help to illustrate the pathway, only one person who was approached agreed to take part. The findings from this case study are included in this report. 5

7 Interviews were undertaken with: Academia Criminal Justice Social Work Crown Office and Procurator Fiscal Service Judicial Institute for Scotland NHS Scotland including clinical psychology and psychiatry Police Scotland Scottish Appropriate Adult Network Scottish Court Service Scottish Prison Service Voluntary sector organisations The researcher was unable to gain access to some branches of the criminal justice system, but suggests that to do so would still be helpful. These are: Defence Solicitors and representatives of the judiciary. 6

8 Section 1 Getting into trouble (Again?) 7

9 Past factors This first stage of the journey describes some of the factors known to be associated with offending behaviours for people with learning disabilities. The graphic breaks down these factors into those which might have featured in a person s past and those which might be current in a person s life, and therefore potentially open to intervention and change. These can include: Experiencing sexual abuse as a child Having a history of many offences, often of different types Not wanting to engage with services Having grown up in care A history of contact with mental health services None of these factors is determinative. Just because someone has this kind of experience does not mean that they will become an offender 8

10 Current factors Research by Wheeler et al (2013) shows that there are social and environmental factors associated with offending behaviour by people with learning disabilities. These include: Family breakdown Experiencing abusive and exploitative friendships A lack of work or routine weekly activity Wheeler et al (2013) note that all of the above are open to intervention and that the fact that people may not have rich lives is likely to contribute to offending behaviour. Substance misuse may also play a role in offending behaviour by people with learning disabilities. 9

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12 Evidence from the literature suggests that support services are often aware of offending behaviours by people with learning disabilities. Wheeler et al (2013) suggest that while around a quarter of people known to support services have offended, only around a third of these individuals will have had any contact with the criminal justice system. McBrien and Murphy (2006) suggest from research that support workers may be reluctant to report offending behaviours to the police. This may be for a number of reasons, including: fear of having practice scrutinised belief that the person is better supported within a social care environment. This study also showed that support workers and police have differing views as to why crimes should be reported. In general support workers were concerned with the fact that offenders with learning disabilities were vulnerable and in need of support, whereas police felt that incidents should be reported because they were wrong or unlawful. 11

13 Section 2 Detention, Arrest and Charge. 12

14 Case Study Introduction X is a young man who lives in a small town in the West of Scotland. He has been in trouble with the police on a number of occasions and has had to attend court. He has been supported by Cornerstone s Partnership Project for a number of years. X can become easily anxious and agitated, this can lead to him displaying difficult and aggressive behaviour. He manages this by removing himself from the situation and taking a break, for example for a cigarette. Police Interaction Interaction with the police was identified as an area where having a learning disability was a barrier. How police officers approached X could either help to diffuse or enflame a situation. The police have not always explained clearly why they have stopped X and one was reported to have said he doesn t appear to have a disability. When X needs more time to answer or feels that he needs to take a break it is important for him that this can be accommodated. If the police are questioning him and don t accept that he has a disability they won t consider allowing him the extra time he needs. For X, sometimes the phrasing that police officers use can cause him to get confused and then frustrated which leads to him behaving in a way that causes the police officer to view his behaviour as challenging. X s mother has welfare guardianship for X under the Adults with Incapacity act. This has caused some difficulty with the police as X is not supposed to be questioned without his Mum being present. His Mum had raised this with the police when they came to the house to arrest X but the police did not know anything about guardianship and they didn t know what to do in this case. X s mother said It should be cut and dried that a person with guardianship should have an appropriate adult X has found that his behaviour can escalate a situation but that with police officers who he knows locally who know how best to engage with him he manages better not to behave in a way that can be viewed as challenging. 13

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17 Section 3 Police Decision Making 16

18 1 Section 4 Interviews and Appropriate Adults 1 Changes to the role of the appropriate adult have been made in the 2014 Act. 17

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21 Section 5 Trial and Court 20

22 Case Study Solicitors X said that his current solicitor is good at explaining things but the previous one wasn t good at all. This led to frustration and confusion on his part. It has been really difficult to find a solicitor who has an understanding of how guardianship operates in relation to criminal matters. Court Before having to appear in court the support worker from the criminal justice support service was able to organise a court visit in advance so that X could see around and be shown where he would wait and where his court appearance would take place. X said that getting to visit the court before his hearing was helpful for putting his mind at ease. After the visit he knew where things were and had an idea of how things worked, where he would have to sit etc. It was also helpful that his visit allowed clear explanations such as that his court appearance that day was not the actual trial and would not result in his punishment being decided. In court there are a number of things that can be very difficult for X. His solicitor is trying to have the case dealt with a low key manner if that is possible in order to alleviate some of the stress that will be caused and therefore also to reduce some of his behaviour that may be viewed as difficult. During one of his court appearances there was a particularly helpful police officer who helped to put X at ease with his friendly manner. Having his support worker from the partnership project with him was also found to be really helpful. Having someone there with him helped him to remain calm and therefore to manage his behaviour. 21

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24 The 2014 Act has made changes to the role of the Appropriate Adult. There was support for Appropriate Adults to be placed on a statutory footing but the government decided not to do this. 23

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27 Case study Criminal Justice Support service. For X, having this support helped a lot, it was helpful to have the moral support and someone who could explain the process that he was going through. The system is complicated with the pleading diet and the trial diet. X has his Mum in his life who is there to support him but both X and his Mum said it was really helpful to have the support of someone with experience of the system. X s Mum said; I can t imagine what it would be like for someone with no family and no other support, if they didn t have family, who would they contact? And if the family doesn t have experience of the system how could you support them? 26

28 Section 6 - Prison 27

29 The NHS now has the responsibility for prisoner health since new legislation came into place around the end of 2013 to the start of There are currently studies ongoing into profiling and screening tools. 28

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33 Section 7 Disposals under the Criminal Procedures (Scotland) Act 1995/Mental Health (Care and Treatment) (Scotland) Act

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35 People with learning disabilities are not included in Scottish Government delayed discharge statistics. Supporting people with learning disabilities to move down a level of security can be a frustrating and lengthy process. 34

36 Conclusion This report is designed to layout the path that people with learning disabilities may follow through the criminal justice system. There are points on this path when having a learning disability makes it more difficult to navigate. Staff or family who are supporting a person through the system may not have the information they need to make sure the person understands what is happening. Specialist services like the one highlighted in the case study in this report can be beneficial for people but they are not available for everyone. The graphics and pathway in this report are planned for inclusion in a suite of materials to support criminal justice professionals to engage with people with learning disabilities who they come into contact with. 35