Learning Disabilities, Autism and Neurodivergence Bill: consultation analysis

Section 10: Justice

Introduction

The consultation document set out proposals which were relevant to both the criminal and civil justice systems, as follows

• Proposal 1: Strategies and a Co-ordinated Approach - to bring together a single national strategy that deals with neurodivergence and learning disabilities in the civil and criminal justice systems.
• Proposal 2: Data and the Identification of people with learning disabilities and neurodivergent people in the justice system.
• Proposal 3: Inclusive Communication - to support all those in contact with the criminal and civil justice systems to be able to fully understand the information they are being given.
• Proposal 4: Mandatory Training - extend the requirement for mandatory training to police, prison, COPFS and relevant courts and tribunals staff.
• Proposal 5: Advocacy - develop a consistent approach to advocacy which includes people with learning disabilities and neurodivergent people (to be informed by ongoing work in this area). Also include information in mandatory training about the role and availability of advocacy in the civil and criminal justice systems as well as information about the Appropriate Adults scheme.
• Proposal 6: Diversion from Prosecution (DfP) - Better identification within the justice system and training for staff to understand how to do this.

The proposals focused on and sought feedback related to the adult justice system, i.e. on those aged 18 and over. However, the consultation document noted that separate work had and was being done in the child justice sector and highlighted progress in this respect.

Main Findings

Overall, 343 respondents provided feedback in relation to the proposals on justice, with around two thirds of these expressing support for all proposals and/or a preference for them to be implemented together. It was felt that all proposals were needed, and together they would provide the fairest and most accessible system:

“All of these proposals belong together and should be applied together, if the aim is to ensure that neurodivergent people are treated appropriately within the justice system.” (Neurodivergent Individual)

In addition to covering the police, the Crown Office and Procurator Fiscal Service (COPFS), the Scottish Court and Tribunals Service (SCTS), and the Scottish Prison Service (SPS), a range of other organisations/professionals were identified as needing to be included within the remit of the proposals (particularly those related to accessible communication and training). This included:

• The judiciary;
• Lawyers/solicitors;
• Justice social work teams;
• Community justice providers/professionals;
• Commissioned services including GeoAmey and third sector providers/ partners;
• Police (and any other) call handlers;
• NHS and other health and social care related staff involved within the justice system;
• Forensic medical service clinicians;
• Scottish Legal Aid Board (SLAB);
• Victim Support Service; and
• Victim Information and Advice (VIA).

All individual proposals were also reasonably well supported, either on their own, or more commonly in combination. All proposals elicited more support than disagreement.

Proposal 1: Strategies and Co-ordinated Approach

Those who provided feedback on the creation of a justice strategy to provide a co-ordinated approach were largely supportive. On the whole, respondents felt that a national strategy would provide an overarching framework, ensuring a joined up system with equal/consistent provision across the country. It was also felt that this would support the implementation of all the other proposals and ensure that people’s needs were taken into account:

“We support this approach, as the creation of a single national strategy that would deal with neurodivergence and learning disabilities in the civil and criminal justice systems, could enable co-ordinated and informed interventions. This approach will stop the fragmented and complex interactions between different parts of the justice system which can reduce heightened levels of risk for this cohort and enable them to receive more co-ordinated communication, support, and fairer access to the civil and justice service provisions.” (Local Authority)

A few also noted that such a strategy would help to reinforce, emphasise and provide a structure to implementing and meeting existing requirements.

Similar caveats and concerns to those outlined at Part 2 regarding statutory strategies were raised, however. In particular, it was said that any justice strategy should be informed by or co-designed with people with lived experience, and that it will be important to learn lessons in relation to the ‘implementation gap’ experienced by other legislation, policies and strategies, and that mechanisms must be implemented to ensure that any strategies would be delivered on the ground.

Proposal 2: Data and Identification

Those who noted support for Proposal 2 tended to discuss the need for identification rather than data. Respondents felt it was important to identify people with learning disabilities and neurodivergent people as this would then inform all ongoing contact/interactions, consideration of the situation, and treatment of the individual (including the ability to avoid situations escalating and incurring additional charges) - i.e. this would act as a trigger for all of the other justice based proposals. It was noted that needs would continue to be unmet if people could not/were not identified. It was highlighted that such identification would ensure that appropriate and accessible communication methods could be provided, that adjustments could be made and appropriate support offered/provided, and that relevant information would be considered by all parties considering the case so that appropriate actions and disposals could be explored:

“An effective common screening tool utilised across justice agencies would ensure continuity and a streamlined approach. A screening tool would further ensure that front line justice staff are able to seek to identify any communication support needs of people with neurodivergence and learning disabilities at the soonest opportunity, to ensure the correct communication supports are put in place to support that person’s understanding to ensure they are aware of their rights and potential outcomes.” (Advocacy Service)

A few respondents highlighted that, in many cases families and carers can have an important role to play in ensuring justice organisations and professionals are aware of a person’s learning disability or neurodivergence (diagnosed or not) and how this might manifest in their behaviours, understanding, communication needs, masking behaviours, etc. It was stressed that families must be listened to in such circumstances.

It was also suggested that information about an individual’s needs and/or learning disability or neurodivergent status should be shared in order to provide a joined up system - although justice organisations noted that changes may be required to current IT systems to facilitate such data sharing.

However, there were caveats to the support for this proposal. A few noted that, while it was important for the police to identify communication issues, learning disabilities and neurodivergence at the earliest opportunity, and for this information to be shared via the Standard Prosecution Reports (SPR), this should not be seen as the only time that these issues could/should be identified. It was highlighted that people with learning disabilities, autistic people and neurodivergent people may not disclose their condition or needs at the first point of contact. Therefore, it was felt that identification should be an ongoing process with ongoing reviews built into the system, and for each agency involved to have a responsibility to identify any potential issues.

A few stressed that any assessments should be voluntary with individuals not subject to these without their consent. Others stressed that any assessment should be about identifying needs rather than seeking to diagnose a person. Indeed, the problem with securing a diagnosis, either once in the justice system or more generally was again highlighted as an issue which would limit the impact of the Bill and any justice based strategy if it required a diagnosis for someone to access support within the justice system.

In addition, several respondents (both individuals and organisations) were concerned about how realistic it would be to create an effective common screening tool due to the considerable number and differences of conditions and the likely level of knowledge and training of the staff administering and interpreting it. It was highlighted that a common screening tool did not currently exist, and that the range of existing screening tools tended to be over-inclusive (resulting in people being wrongly identified as having learning disabilities or neurodivergence). It was stressed that full assessments needed to be conducted to accurately identify and diagnose learning disabilities, autism and neurodivergent conditions, but the current lack of resources and lengthy waiting lists for diagnosis were again highlighted. Others, however, indicated that they were developing screening tools or would welcome involvement in the development of such a tool:

“I don't agree with 'common screening tool'. There isn't really such a thing that could be used to identify 'neurodivergent' people as a whole, and I don't see how it would work. Simple screening tools are also unreliable, especially when assessed by lay people.” (Neurodivergent Individual)

A few were also concerned about the practicalities and how realistic it would be to try and identify individuals’ needs, particularly those of accused persons at the first point of contact when the person may not be cooperating with the police. Risks of passing on inaccurate information throughout the system were also flagged.

Respondents who did discuss data tended to focus on the need for more research, data and statistics around the prevalence and over-representation of people with learning disabilities and neurodivergent people in the criminal justice system (both as accused persons and as victims). It was also stressed that accurate data needed to be recorded in order to identify levels of unmet need within the system, while others were keen to see intersectional data collected, in order to support the development of targeted and specialist interventions, support and services.

Justice organisations and others involved in the justice system stressed that the need to identify individuals would necessitate significant and ongoing staff training. In addition, the collection and retention of additional data may require updates to IT systems, additional resources, incur additional costs, and would need to be compliant with Data Protection and GDPR laws.

Proposal 3: Inclusive Communication

The provision of inclusive communication was considered vital throughout the justice system, for those accused of crimes and for victims and witnesses, as well as the families and carers of all those involved. It was stressed that inclusive communication needed to extend beyond Easy Read versions of written information, and should also include support to understand verbal information (including via an advocate, social worker, or other support worker), and cover a wide range of different formats, including for those who were non-verbal, those whose first language was not English, those who needed audio or video communication, and those who used alternative languages such as BSL or Makaton, to offer face-to-face, telephone and video meetings or interviews, etc. Accessible communication was said to be necessary to ensure the person understands their rights and can ensure these are upheld, can understand and participate in the process, can be understood and heard within the process, that they understand any court orders or bail conditions, when they need to appear in court appearances, and that they understand any offers of Diversion from Prosecution. It was noted that serious consequences were often experienced when people in the justice system do not understand and cannot access information:

“We have learned from experience that neurodivergent people and people with learning disabilities are often unfairly disadvantaged because written information is not accessible to them. The inaccessibility of letters means people miss out on opportunities for Diversion from Prosecution (DfP). The inaccessibility of bail conditions and licence conditions, mean people are at increased risk of breaching their Orders and ending up in custody, either on remand or otherwise. All of these outcomes mean an increased cost in terms of court time, prison time, and legal aid.” (LDAN Support/Representative Organisation - Mixed Conditions)

Consistent with comments elsewhere in the consultation, one of the main caveats to support and a key reason among those who disagreed with this proposal, was that some individuals may not identify themselves as having additional communication needs or ask for alternative communication formats or styles. Rather, it was argued that accessible communication should be the norm rather than only being provided on request.

A few respondents also stressed that accessibility needed to go beyond simply communicating information. It was noted that systems needed to be more accessible, particularly to support people with learning disabilities and neurodivergent people to report crimes.

Proposal 4: Training

Training was perhaps seen as the single most important proposal at this section. It was considered vital for justice professionals and staff, and was seen as integral to both identification and communication. Several noted the potential for people with learning disabilities and neurodivergent people to nod or agree due to being overwhelmed, stressed and not understanding the information or questions put to them. Similarly, respondents highlighted that some autistic and neurodivergent people will avoid eye contact or become non-verbal which can lead to officials thinking they are lying, while others can be triggered or experience sensory or emotional overload resulting in them reacting in unexpected ways (sometimes with aggressive outbursts which can then result in additional harm and charges). As such, it was considered important for professionals to be trained to understand and identify these risks, and to deal with them appropriately.

While mandatory training throughout the justice system was welcomed, many respondents specifically highlighted the need for training for the police and call handlers. Several described negative encounters they had had with the police, covering both being an accused person and as victims and witnesses:

“Definitely better training for police is needed. I got stopped during lockdown for accidentally [speeding] and they managed to make the process as stressful as possible, even though I told them I was autistic… They just looked at me blankly when I said I was autistic, they didn't even acknowledge what I had just said and just ignored it and carried on. There are lots of things they could have done at that point to make it less traumatic for me, but I don't think they understood anything about autism or what they could do differently for me so they just decided not to engage with what I had said.” (Neurodivergent Individual)

Other groups identified as requiring suitable training were jurors and Appropriate Adults.

There was a suggestion that, in addition to training for all staff, it might be sensible to establish ‘champions’ or ‘specialist’ staff to ensure there was always a designated trained and experienced person available, rather than relying on all staff being able to recall their training.

Several respondents were keen that training should be designed/co-designed and delivered by those with lived experience and DPOs. Several also called for training to be both intersectional and trauma informed.

Similar to the argument above that identification should focus on needs rather than diagnosis, respondents also stressed that training should adopt a similar approach. Staff must be taught about hidden disabilities and needs, as well as developing an understanding that not all individuals will have a formal diagnosis or know what specific condition they have.

Proposal 5: Advocacy

Several respondents highlighted their support for the use of advocacy in the justice system, with most discussing the supportive nature of advocacy generally or for this to be provided to all people with learning disabilities and neurodivergent people. It was noted that advocacy can support communication needs and ensures that the person’s voice is heard within the process, with independent advocacy noted to be truly impartial and not influenced by other requirements or parties:

“Agree with all the proposals but of them all proposal 5 is most important. Unless we can be sure that understanding is taking place, there can be no equality of treatment. Easy read versions of complicated text cannot realistically ensure this. Access to advocacy should be essential for those with a learning disability or autism.” (On behalf of a LDAN person, and Family/Friend/Carer)

It was also stressed that equal provision and access to independent advocacy was needed across the country, and should not vary by area, sheriffdom or court. However, a few respondents highlighted the currently “patchy” provision and the need to improve this going forward.

Some respondents interpreted this proposal as being about training and awareness raising of advocacy services (and the use of Appropriate Adults), rather than about their actual provision or services. This was again largely welcomed, with a few respondents noting that advocacy was not always well understood within the justice sector. It was suggested that mandatory training should seek to include information on this.

It was suggested that independent advocacy should be covered within any mandatory staff training in order to raise awareness and understanding among justice professionals, and that this should be co-designed with independent advocacy organisations and advocacy partners. Similarly, it was suggested that advocates should also receive specialist training (and have access to specialist resources and guidance) in learning disabilities, autism and neurodivergence, to ensure they can suitably and robustly support such individuals through the justice processes. It was also suggested that accessible information about independent advocacy and Appropriate Adults should be made available to increase awareness among individuals themselves.

Only two respondents discussed the proposal to develop a system wide advocacy approach for all individuals (with or without learning disabilities and neurodivergence) which will be informed by wider work. One was keen to see the outcome of the work while the other did not understand why it was necessary to wait.

Feedback about Appropriate Adults was more mixed. Some respondents stressed the need for accused persons to have an Appropriate Adult present, for services to be aware of the need for this and to be proactive in provision. Others, however, were less supportive of the use of Appropriate Adults as they felt this was insufficient and ineffective.

Proposal 6: Diversion from Prosecution (DfP)

Slightly more mixed responses were provided in relation to Diversion from Prosecution (DfP). Some respondents were generally supportive of the consideration and use of DfP for accused people with learning disabilities and neurodivergent people. It was felt this could be used in appropriate circumstances and would be more successful in reducing reoffending rates and addressing offending behaviour as it could provide better support and education:

“Diversion from prosecution is well placed to contribute to positive outcomes for people at risk of offending, their families/carers and communities. It is also cost effective. The support offered by justice social work and their partners is often creative and bespoke, reflecting the unique needs of the person. This support also offers important opportunities to connect people to local sources of support in order to support desistance and reduce the likelihood of further offending.” (Other National Public Body/National Agency)

It was also felt that DfP may be a more suitable option for people with learning disabilities and neurodivergent people where their condition had been a factor in their offending.

It was suggested, however, that the typical three months that diversion programmes run for may need to be extended for people with learning disabilities and neurodivergent people, and that greater flexibility and tailored support may need to be provided. Caution was also required to ensure that individuals were suitable for diversion programmes, and could be adequately supported, accommodated and managed within the community. It was stressed that not all people with learning disabilities or neurodivergent people would be suitable for diversion into community programmes, and that where they are, detailed understanding of a person’s needs would be required, both to manage risks and to provide the best rehabilitative support.

A few respondents interpreted this proposal as being about training for COPFS and other justice staff to better understand learning disabilities, autism and neurodivergence in order to better inform their decision making and consideration of DfP. Again, this was mostly supported. It was highlighted that both well trained justice professionals and accessible communication were required to ensure that individuals were offered DfP where appropriate and were able to understand and accept such offers. It was suggested that the current information sent to accused persons was inaccessible for those with learning disabilities meaning they cannot take the offer of DfP unless they have support to understand the letter and process.

Some individuals were, however, cautious of the proposals around DfP. A few interpreted this as an intent to divert more, most or all cases with an accused who had learning disabilities or neurodivergence (regardless of the offence or circumstances), which they felt was inappropriate, could be considered as leniency, and would not be considered as delivering justice:

“I think it would need to take in account all circumstances, not just that the person is neurodivergent or has learning difficulties. Whilst appreciating that some may have more limited capacity to understand the crime committed, this should not be a 'catch all' for DfP - victims of crime already feel the CJS [the criminal justice system] is weighed in favour of the perpetrator of the crime and this could be seen as just another 'excuse' for someone to be excluded due to their neurodiversity or learning difficulties.” (Member of the Public)

It was also felt that any policy which increased the potential for diversion for people with learning disabilities and neurodivergent people could be exploited and abused by neurotypical persons, particularly if a formal diagnosis was not required.

A few were also concerned that DfP could be seen as removing responsibility from the accused person, and/or creating a two tier system.

A few individuals indicated that they did not understand the proposals in relation to DfP and sought greater clarity about what this is, when it might be used, etc.

Use of the Mental Health Act in Justice

While the Mental Health Act’s use within the justice sector to determine how a person with learning disabilities or autistic person will be treated is not the same as Diversion from Prosecution, several respondents discussed it in relation to diversion, while others considered this as a separate but important issue.

Almost all respondents who discussed this issue raised concerns in relation to diverting accused persons away from court and into hospital settings using provisions in the Mental Health Act. It was noted that they can be found guilty (or are treated as such) without a trial or the evidence being examined, can lose their legal capacity, are detained without a fair hearing in court, and can often be detained in a hospital setting for longer than the sentence they would have received from a conviction in court, and sometimes indefinitely. It was argued that this was unjust and inappropriate, and needed to be changed:

“Inclusion under the Mental Health Act means that people with a learning disability can be denied the right to a fair trial. The Court can decide that we cannot follow the court proceedings or instruct a solicitor to defend us in court. Instead, there is a ‘finding of fact’ which simply finds us guilty of the offence without considering evidence. We can then be locked away, detained or restricted in the mental health system for an unlimited time, sometimes for the rest of our lives. How can it be fair that we are detained for longer than someone who is accused of the same crime who does not have a learning disability?” (LDAN Support/Representative Organisation - Learning Disabilities)

Other Comments and Considerations

It was felt that more preventative work was needed to stop people coming into contact with the criminal justice system in the first place. This included earlier diagnosis and post-diagnostic support and more effective early intervention strategies and support. It was also suggested that ongoing support was needed at the end of any sentence to avoid reoffending:

“Many of the people in prisons are reported neurodivergent. We need to do more before criminality happens.” (Neurodivergent Individual and Family/Friend/Carer)

Several respondents with learning disabilities and/or neurodivergent respondents also reported a reluctance or nervousness about reporting incidents to the police. This was due to the risk they would not be believed, because the process was perceived as not being accessible or as too difficult and stressful, and/or due to the lack of support and understanding from justice professionals.

In addition, a wide range of other issues or areas for further consideration were identified by respondents, although each was typically noted by relatively small numbers. Those highlighted by at least a few respondents each included:

• All approaches should be trauma informed throughout;
• Reasonable adjustments need to be made consistently for people with learning disabilities and neurodivergent people throughout the justice system, and costs for these need to be included within legal aid;
• That speech and language therapists and occupational therapists could support the development of any guidance in relation to communications, adjustments to processes, environments and sensory requirements and training;
• Greater consideration of, and measures need to be included for people with learning disabilities and neurodivergent people in specific areas, including civil and family law; youth justice; victims and witnesses; those who work in the justice system; those with PMLD and their families; and families generally;
• Consider the creation and use of specialist courts;
• Consider the introduction or use of a range of different professionals, including intermediaries in court; access to a learning disability nurse at first point of contact; and providing a criminal justice social worker or support worker to provide information and support throughout the justice process; and
• Conduct a review of historical convictions where neurodivergence or learning disability has been a factor in order to identify and overturn miscarriages of justice.

Finally, a few respondents felt that the proposals lacked detail and sought greater information about how each would work in practice, how and who would implement them, how they would be funded and resourced, etc. Others indicated that they did not have enough/any knowledge or experience in this area to comment.