By Dr. Hugh Asher
I recently completed a three-year project delivering learning disability and autism awareness to staff across the Criminal Justice System for the charity KeyRing. During this time, I delivered a one-day training course to over 1600 front-line staff in the Criminal Justice System (CJS). The training was co-delivered each time with a member of the Working for Justice (WfJ) group, all of whom have a learning disability or autistic spectrum condition and first-hand experience of the criminal justice system. I really enjoyed delivering the project as it combined training, research and practitioner skills and I learned a great deal myself as a consequence of delivering the project.
People with multiple or overlapping needs are comparatively common in the criminal justice system and it is generally accepted that about 20-30% of offenders have a learning disability or difficulty that interferes with their ability to cope with the criminal justice system (Loucks, 2007). Prevalence rates for Autistic Spectrum Conditions (ASCs) are less well defined but are thought to be higher than the 1-2% of people in the general population who are autistic (Allely, 2015a). HMYOI Feltham was the first prison to gain Autism Accreditation in 2015, and in 2016 they identified that 4.5% of their population had a diagnosis of autism, received either before prison or in the prison (Hughes, 2017).
Having a learning disability or autism can be influential in many ways within criminal justice system that all need to be acknowledged and responded to. There may be reasons related to a person’s condition that are relevant with regard to their entry into the criminal justice system, whether this is a person with autism who breaks the law trying to engage in their ‘specific interest’, a person with a learning disability who experiences ‘mate crime’ and is taken advantage of to take part in a burglary, made to store stolen good or who has their flat used by a drug dealer to sell drugs (known as ‘cuckooing’). Others may become involved with the CJS as a consequence of not understanding social norms. This is not to say that such people are never guilty of breaking the law, but that my experience is that they often become involved knowingly or unwittingly in other peoples’ offending in ways in which their vulnerability is relevant.
At both the police interview stage and in court, people with autism or learning disabilities may be disadvantaged or vulnerable as a consequence of their condition. Deference to authority or acquiescence can mean that people may give the answer they think is wanted, rather than the truthful answer. Many people with autism or learning disabilities have communication difficulties that make it harder for them to understand and process what they are asked, resulting in them taking a long time to answer questions, or to formulate and communicate their responses to questions. Poor communication skills can also result in them giving odd or inappropriate responses because they do not understand the question, but are afraid to say so, for example: Magistrate: “Do you feel contrite about your actions?”, Defendant: “No.”. The ‘Black and White’ thinking patterns often exhibited by people with autism can mean that they do not appreciate the relevance of mitigating circumstances and may fail to adequately defend themselves.
When working as an sessional Appropriate Adult supporting young people and vulnerable adults, I personally felt that many detainees I supported did not fully understand the potential implications of giving a ‘no comment interview’, a topic that I have written about here. I have previously been concerned on occasions that some people were punished for other peoples’ failures, or for failures in the system. The case of Sally is an example of this.
The Case of Sally
‘Sally’ (a pseudonym) was a 16-year-old that I supported in police custody as her Appropriate Adult. In many ways Sally was triply vulnerable – her age, she was a ‘looked after child’, and she had autism, although she would be considered to be quite ‘high functioning’. Sally’s case illustrates how failure to support people with autism appropriately and to meet their needs, and then poor responses to the resulting behaviour, can result in a criminal record for the individual.
Sally was 16 years old and was living in a children’s home when she was arrested on suspicion of criminal damage. She admitted to breaking a chest of drawers in her room in the children’s home during an autistic meltdown. However, she said that her care plan, designed to minimise such occurrences, was not followed. According to the National Autistic Society a meltdown is ‘an intense response to overwhelming situations. It happens when someone becomes completely overwhelmed by their current situation and temporarily loses behavioural control. This loss of control can be expressed verbally (e.g. shouting, screaming, crying), physically (e.g. kicking, lashing out, biting) or in both ways’.
Someone else with autism described it as follows:
“When you have a meltdown, it’s as if the world is ending. Everything is too much and you feel like an overwhelming darkness has engulfed your very being. Irrepressible anger that may seem completely irrational to an outsider … Smashing, ripping and throwing might be involved in an angry meltdown, as well as self-injurious behaviours to display outwardly the pain they’re experiencing internally.”
Sally was advised by her solicitor to plead guilty to a charge of criminal damage and offer to pay for the damage to the chest of drawers which she did. Consequently, she now has a criminal record. From my perspective, the incident could be viewed as resulting from poor support and adherence to pre-existing care plans by the staff at the children’s home. It also raised issues for me of capacity and culpability. Mitigation under the Mental Health Act is rarely extended similarly to autism – and my perception was that Sally was not culpable in this instance, however, the role of an Appropriate Adult is not to provide legal advice or commentary. Although frustrating for me, I am now in the position to try and change the support and advice that autistic (and other vulnerable) people receive in the CJS through the wider work that I am doing, and through being invited to write posts such as this.
There is scope within the CJS for improved communication between agencies that would ensure that vulnerable adults’ needs were more adequately met. For example, the first Joint Chief Inspectors Report on The Treatment of People with Learning Disabilities in the CJS identified that in only a third of cases where advice was sought by Police from the Crown Prosecution Service (CPS) following an interview where an Appropriate Adult was supporting a vulnerable adult, was any mention of their vulnerability mentioned in the submission to the CPS. Therefore, in two-thirds of such cases, the CPS are making decisions without all the relevant information.
Similarly, information known to the Police is not always shared with courts, information known to courts is not always shared with prisons or community offender management services. Beyond this, there is a lack of parity between different sections of the CJS. The Police and Criminal Evidence Act Code C stipulates that vulnerable adults must have appropriate support whilst in police custody, particularly during interview. However, for those vulnerable adults whose cases progress to court, there is no such support statutorily available in Magistrate’s or Crown Court (although vulnerable witnesses are entitled to ‘Special Measures’ to ensure that they can provide the best evidence they are capable of). Although this inequality cannot be rectified as easily through the delivering of staff training, I hope that drawing attention to such differences in the treatment defendant and witnesses, and in different parts of the CJS may ultimately lead to better parity.
As people with autism or learning disabilities progress further into the justice system, the difficulties that they experience can continue to increase. Simon Baron-Cohen once said that putting someone with autism in prison and expecting them to cope was like pushing someone with physical disabilities who is in a wheelchair into a swimming pool and expecting them to swim (Allely, 2015b). Whilst for some people with autism, the well-defined regime of the prison may be reassuring, for others it is very hard to understand the (sometimes unwritten) rules and regulations of prison. People with cognitive impairments often struggle to complete Offender Behaviour Programmes (OBPs) as it is common for accredited programmes to stipulate that an IQ of 80 or less (potentially about 25% of the adult prison population) is an exclusion criterion. For people on indeterminate sentences who have to satisfy a parole board that they should be released, problems completing sentence-planned programme targets, combined with a lack of language to express remorse and to describe how the risk they pose has been reduced, can mean that they are in prison substantially longer.
There are many benefits to Criminal Justice Services and agencies of an improvement in the awareness and understanding of the needs of vulnerable adults, and in ensuring that corresponding responses that meet their needs are in place. At a legal level, it would ensure that the Public Sector Equality Duty, a key measure in the Equality Act 2010, is being met. On an ethical level it would ensure parity of treatment between people involved in the CJS. On a financial level, I believe that investment in training and development across the CJS will provide savings further down the line:
- If vulnerable detainees, such as those with autism or learning disabilities, are identified in police custody, and then provided with appropriate support to put their case forward in police interviews, then their cases are less likely to progress to court unnecessarily.
- Adequate support in court, combined with appropriately knowledgeable court staff would reduce the chances of unfair treatment or miscarriages of justice. The large cost of people being sent to prison unnecessarily would then be reduced, and I believe that this alone would offset the cost of awareness raising.
- Where vulnerability is taken into account and suitable responses taken into consideration, then those who are genuinely guilty of offenses could receive appropriate support and interventions that would effectively reduce their potential for committing further offences – and where prison or a community sentence involving OBPs is most appropriate, that those programmes meet the needs of those to whom they are delivered. Where prison or a community sentence is not the most appropriate response, that there are suitable alternatives into which people can be diverted.
- Communication difficulties combined with poor emotional management can mean that some people with more complex support needs are more likely to express anger as a consequence of frustration that they are not well equipped to deal with. Especially in prisons, the ability to recognise this and defuse situations before they escalate would be preferable for all involved than a reactive response involving control and restraint (C&R), people being held in segregation units and governors spending time on adjudications.
Given the proportion of people in the CJS who are vulnerable, I usually suggest to staff undertaking the training that they take a reactive approach to identifying vulnerability, actively looking for clusters of signs that people may have additional needs, rather than waiting to be told. Especially in prison, where people fear bullying and exploitation, those with autism or learning disabilities may try very hard to ‘mask’ or ‘cloak’ their problems, often not realising that this can make the situation more problematic for them. Beyond this, increasing knowledge and skills can help people to feel more confident and competent in dealing with more complex needs and circumstances in their job roles. The majority of staff I have encountered are eager to provide the best service and support that they can, it is why they do their job.
The benefits to vulnerable adults of greater awareness of the indicators of additional needs and staff having the skills and knowledge to provide effective support are wide ranging. Being enabled to communicate effectively with people who understand your needs can make what is for anyone a very stressful experience comparatively less stressful. Ensuring that you are treated fairly and that you feel a sense of ‘Procedural Justice’ is important for anyone who comes in contact with the CJS. Feeling that others understand your needs can increase the likelihood of self-identification as having additional needs and of getting those needs met, rather than trying to hide them and having them unmet.
Benefits of our Training Approach
In terms of co-delivery of learning disability and autism awareness training with people who are experts by experience, I identified many benefits to this approach. Criminal Justice workers attending the training often reflected in the evaluation forms that this was the most beneficial component of the training. My co-trainers in turn became more self-confident and empowered by people listening to their first-hand experiences and this made them feel that their perceptions and experiences were valued by others. For many it was also a great power balancer. One co-trainer commented that after spending years in prison, listening to prison staff tell him what they thought he ought to do, here he was delivering training to them, and they were now the ones now needing to listen to him. The Working for Justice group as a whole have also had input into numerous evaluations of government policy, a variety of academic studies and have taken part in many research studies. Again, this is empowering for them, builds self-esteem and hopefully results in policies and procedures that meet the needs of those like them.
Whilst I was regularly asked whether I thought it would be better to spend money on the victims of crime, rather than the perpetrators, I believe that for many people with autism and learning disabilities in the Criminal Justice System, the distinction between offender and victim is often blurred. Awareness of additional needs amongst people in the CJS system is slowly increasing, particularly in relation to the prevalence and influence of autism, and I hope that this continues. However, given the prevalence of such additional needs, I feel that the level of training currently provided in how to support people with more complex or overlapping needs, especially to new staff, is insufficient and I believe that it would be universally beneficial to all involved if there was a greater focus on this.
Hugh currently works as a freelance trainer and consultant, and as a project manager across the Criminal Justice System (CJS) in England, Wales and Scotland. He has over 15 years’ experience of working in the CJS as a practitioner and as a researcher in prisons and police custody with drug users, young people and vulnerable adults. He is currently undertaking a short project with the Listener Schemes in Scottish Prisons for the Samaritans.
Allely, C. S. (2015a) Autism spectrum disorders in the criminal justice system: police interviewing, the courtroom and the prison environment available at http://usir.salford.ac.uk/38698/1/Allely%20%282015%29.pdf
Allely, C. S., (2015b) Experiences of prison inmates with autism spectrum disorders and the knowledge and understanding of the spectrum amongst prison staff: a review, Journal of Intellectual Disabilities and Offending Behaviour, Vol. 6 Issue: 2, pp.55-67,
Hughes, C. (2017) What Happens to Autistic People in Prison? available at http://www.thinkingautismguide.com/2017/04/what-happens-to-autistic-people-in.html
Loucks, N. (2007) No One Knows – Offenders with learning difficulties and learning disabilities, Prison Reform Trust available at http://www.prisonreformtrust.org.uk/uploads/documents/noknl.pdf
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