Learning Disabilities, Autism and Neurodivergence Bill: consultation

Section 10: Justice

What do we mean by Justice?

The intention is that this section will cover both the civil justice system (including the civil courts and tribunals) and the criminal justice system. Where necessary, it is clarified which proposals would just extend to the criminal justice system and which would apply to both the criminal and civil systems.

Some justice agencies, such as the Scottish Prison Service, are not involved in the civil justice system. In addition, there is no accused person in the civil justice system and there are some hearings in the civil justice system (e.g. child welfare hearings) where evidence is not taken.

A word about Youth Justice

Most of what appears in the rest of this section relates to people aged 18 and over. Scotland is already doing a lot to address issues for younger people in the justice system.^[246] This includes a rights respecting approach that aligns with the UNCRC.^[247] For example, we have:

• A youth justice vision and priorities^[248] including:
  • all children being able to access services to address trauma, abuse, neglect and communication needs
  • Early intervention and support including trauma informed approaches
  • Better data and evidence
• Recommendations from The Promise on justice, including through provisions outlined within the Children (Care and Justice) (Scotland) Bill^[249]
• Standards for youth justice
• A youth justice Improvement Board
• A secure care pathway and standards

Under the Youth Justice Improvement Board^[250] an implementation group looking at addressing the priorities within the Youth Justice vision around children's rights has been established. This includes looking at the speech, language and communication needs of children. The standards for youth justice also include supporting children to understand their needs and behaviours.

Some areas across Scotland are looking to develop youth courts. This includes consideration of the language used in court and recognising and addressing speech, language and communication needs.

The Scottish Children's reporter developed a disability toolkit in 2021^[251] for use by practitioners that allows for the identification of additional needs in the children's hearing system.

We provided funding to secure centres in 2022/23 to allow secure providers to support children with neurodivergent needs. The latest published social work statistics showed that in 2021/22^[252] there were 67 residents in secure care and 31% of young people in secure care had a known disability.

The Health and Education Chamber of the First Tier Tribunal deals with cases relating to additional support needs for children, and has considered these needs in the design of the Chamber. It has:

• Developed the Needs to Learn First-Tier Tribunal for Scotland (Health and Education Chamber) website for children to access information about how to make claims and references and what to expect as the case goes on;
• Developed a My Voice! Form for children to put across their views in relation to their case;
• Developed an accessible, purpose-built suite of hearing rooms for additional support needs cases to help children participate in their hearings, alongside visual guides for children to prepare them for visiting the suite; and
• Developed cards to help children participate in their hearings (for example, stop/go cards).

What We Heard

Currently there is a lack of reliable data for neurodivergent people and people with learning disabilities who have contact with the justice system.

People with adverse childhood experiences (ACEs) can be more likely to have contact with the criminal justice system as victims, witnesses or perpetrators of crime and this can include neurodivergent people and people with learning disabilities who have experienced trauma. People with less understanding of legal issues find it much harder to access the services and information they need to resolve their issues. Those who say their lives are limited greatly by disability are particularly vulnerable.

Clan Childlaw published an animation from children and young people called Alright^[253] about their experiences of legal representation, what they want from lawyers and from care and justice settings.

The SOLD (supporting offenders with learning disabilities) network^[254] aims to reduce offending and improve support for offenders with significant communication needs. The network is funded by the Scottish Government and led in partnership by People First, ARC Scotland and the National Autistic Society. SOLD members have reported that they often feel confused and anxious as they cannot understand what is going on. SOLD reports that there is a lot of anecdotal evidence in terms of the increased likelihood of neurodivergent people and people with learning disabilities coming into contact with the criminal justice system.

Offenders data^[255]

• A report by the Children's Commissioner in 2012^[256] showed communication disorders among young offenders of 60-90%;
• A Scottish Prison Service pilot carried out in 2016 showed 39% of prisoners with a learning disability or difficulty.
• The 2019 SPS prisoner survey found that within the prisoner responses (30% of prisoners on the survey date responded), prevalence rates were reported as including Autism (4%), ADHD/ADD (8%), Dyslexia (7%), Dyspraxia (1%) as well as high rates of depression (39%) and anxiety/panic disorders (29%)]
• The Coates review into education in prison (England) stated that one-third of prisoners self-identified as having a learning difficulty and/or disability in 2014/15 (Coates, 2016)

A review of neurodivergence in the criminal justice system in July 2021 in England and Wales by Inspectorate Services^[257] found:

• 5–7% of those referred to liaison and diversion services have an autistic spectrum condition (ASC).
• Within prisons the prevalence of autistic 'traits' or 'indicators' could be around three times as high (16% and 19% respectively).
• Around a quarter of prisoners were thought to meet the ADHD diagnostic criteria (Young et al, 2018).

The review found evidence of good local partnerships and heard about many simple adjustments that could be made but these were patchy, inconsistent and uncoordinated. More effective assessment of need, adaptation of services and better training of staff was needed to support those with neurodivergent conditions, wherever they are in the criminal justice system. The report made six recommendations, including the introduction of a common screening tool; collection of screening data; use of simple adjustments including on communications; and, awareness raising and specialist training which should be mandatory for frontline staff. The UK Government is taking forward this work and reporting on it regularly.

A report by the Equality and Human Rights Commission - Inclusive Justice: a system designed for all^[258], looked at the experiences of adult accused people with a cognitive impairment, mental health condition, or neuro-diverse condition in the criminal justice system in England, Wales and Scotland to determine if people could participate effectively. Key findings were around a lack of understanding due to inaccessible information and lack of knowledge, a lack of reliable data on the prevalence of vulnerable people entering the system and a lack of a reliable method of identifying vulnerabilities. Recommendations made included:

• Address gaps in the collection, monitoring and analysis of disability data for defendants and accused people.
• The Scottish Government should agree a long-term aim of a health-led screening and assessment process to identify needs.
• The Scottish Government should create a system to ensure appropriate collection and sharing of information on identified needs and recommended adjustments across health, social work and justice.
• There should be improved training including within initial professional qualification training for law students and as a mandatory element of continuing professional development for those working in criminal law.

What did LEAP think?

• There should be a requirement on the Scottish Prison Service to report publicly on people with learning disabilities and neurodivergent people currently held in prison.
• Training in relation to disabilities, learning disabilities and neurodivergence for Police Scotland and all public bodies in the Justice system should be mandatory.
• Data should be published on the number of neurodivergent people and people with learning disabilities employed by public bodies in the system.
• We should change the meaning of "mental disorder" within mental health legislation so that it doesn't include autistic people and people with learning disabilities. This issue is discussed at another section of this consultation.

Where do we want to get to?

• Neurodivergent people and people with learning disabilities are better identified at any key point of contact within the civil and criminal justice system, and information is passed on to other relevant partners.
• People with learning disabilities and neurodivergent people are given access to accessible and inclusive information throughout the civil and criminal justice system.
• Neurodivergent people and people with learning disabilities who need additional support have confidence that this will be identified. Access to an Appropriate Adult and advocacy support will always be considered.
• That partners in the civil and criminal justice system have a better understanding of the impact of learning disabilities and neurodivergence on an individual.
• People are diverted from the criminal justice system where it is appropriate, and any underlying needs are addressed in an effective way.
• People working in the civil and criminal justice system have confidence, based on training, that they can effectively identify and work with neurodivergent people and people with learning disabilities.

What Happens Now?

We published our vision for justice in Scotland in 2022,^[259] a vision for a just, safe and resilient Scotland that is person centred and trauma informed. Elements of this strategy are important for neurodivergent people and people with learning disabilities and there is an emphasis on prevention and improving mental and physical wellbeing, including:

• a new trauma framework for staff;
• an Equally Safe two year delivery plan;
• Work with partners to Keep The Promise;^[260]
• A new health and wellbeing strategy for prisons.

Our National Strategy for Community Justice was published in June 2022^[261] and has a focus on four national aims relating to diversion and early intervention; the provision of robust and high quality interventions; responsive services which meet the needs of individuals; and strong leadership and partnership working. A delivery plan was published in June 2023 to ensure implementation and drive towards actions at a national, as well as local level. This sits alongside the vision for youth justice^[262].

The Public Sector Equality Duty (PSED), as discussed in the introduction, requires certain public bodies, including the Scottish Government and Scottish Courts and Tribunals Service to have due regard to the need to (among other things) eliminate discrimination across the protected characteristics in the exercise of their functions, including disability.

The SOLD network and the National Autistic Society (NAS) have produced helpful materials, including:

• A guide for defence solicitors representing clients with communication support needs^[263];
• A guide for support workers^[264]; and,
• Easy read guides including on arrest and going to court^[265].
• Guides for parents and carers and autistic adults; and
• Guide for police officers and professionals.

The SOLD User group is made up of adults with a learning disability who have been involved in the criminal justice system.The groupsupports people with communication support needs, including learning disability. In April 2022 there was a national conference called 'I wish I could be back in prison: Community based support for offenders with communication support needs.' This focused on how people with a learning disability are at increased risk of offending if support to achieve equal access to protective factors (such as good housing, employment, education, meaningful relationships) is not provided. SOLD members have delivered training to several agencies across the justice system.

Human Rights Bill

As part of the Human Rights Bill consultation, we sought views on strengthening access to justice (both non-court and court) for rights-holders, which could include people with learning disabilities and neurodivergent people, where their rights have been potentially infringed under the Bill by a public authority. The proposals we are currently considering in relation to judicial access to justice are mostly relevant in the civil court system and seek to lessen the burden on individuals seeking justice through courts and to recognise judicial remedies as an important part of making sure the Bill has a positive impact for rights-holders.

Data

There is a lack of data available to tell us what happens to neurodivergent people and people with learning disabilities in both the civil and criminal justice systems.

Currently there are issues with needs being identified if they come into contact with the criminal justice system. The current practice of identification relies on individual police officers' ability to recognise neurodivergence or a learning disability. This determines whether their condition and its impact is recorded in the Standard Prosecution Report sent to the Crown Office and Procurator Fiscal Service (COPFS). This in turn limits the information available to inform the use of suitable interventions and support which enables neurodivergent people and people with learning disabilities to fairly engage with the justice system.

Appropriate Adults

Appropriate Adults is a statutory scheme of communication support available to vulnerable people over 16 years old suspected of committing an offence, victims and witnesses as part of police procedures. An Appropriate Adult should be requested by a police officer where the person appears, due to mental disorder, to be unable to sufficiently understand what is happening or communicate effectively with police. The role of an Appropriate Adult is to help the person understand what is happening, and facilitate effective communication between the person and police. Local authorities are responsible for ensuring that Appropriate Adults are available.

The criteria are set out in law in the Criminal Justice (Scotland) Act 2016 and the Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019. The definition of mental disorder for these purposes is drawn from the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Mental Health Act"). Mental disorder currently includes people with a learning disability and autistic people. However, the police will also request an Appropriate Adult where they identify that anyone has a communication need.

In court, special measures can be requested for witnesses who are vulnerable by way of mental disorder (in the meaning of the Mental Health Act). One of these special measures includes having a supporter in court. The supporter is there to support the vulnerable witness when giving their evidence.

A vulnerability assessment is carried out by the police in custody but this covers many aspects of mental and physical health and has only one question related to communication which focuses on difficulty reading and writing.

It may be difficult for the police to always identify the need for an Appropriate Adult for neurodivergent people and people with learning disabilities

We provide guidance to local authorities on the provision of Appropriate Adults^[266]. Following a review of the guidance and in collaboration with partners, we expect to publish an updated version in 2024.

There is a recommendation in the Scottish Mental Health Law Review^[267] that intermediaries should be introduced to the justice system, subject to review and assessment of the Appropriate Adult service and independent advocacy. Cross-government work is now underway to assess the implications of this and the other recommendations in the report.

Advocacy

An independent advocate is in addition to and different from an Appropriate Adult and can also be provided.

Although advocacy is available to people with learning disabilities and autistic people under the Mental Health Act, anecdotal evidence suggests that it is often not available and professionals working in the civil and criminal justice systems don't have enough knowledge about its availability or how it should work alongside the Appropriate Adult system in criminal justice.

Diversion from Prosecution (DfP)

DfP is a process by which prosecutors working for the Crown Office and Procurator Fiscal Service (COPFS) can refer a case to the appropriate Local Authority, and partner agencies, as a means of addressing the underlying causes of alleged offending when this is deemed the most appropriate course of action. It can be considered in any case where the person reported to COPFS has an identifiable need and where it is assessed that DfP is the most appropriate outcome in the public interest. It is for prosecutors to make the decision on whether diversion is appropriate.

It is the responsibility of the Police to submit relevant information in relation to the alleged offence(s) together with any information on accused/victim/witness disability including a learning disability, where known, to COPFS in the form of the Standard Prosecution Report. If prosecutors consider that DfP is appropriate, they may refer a person to the local authority for a DfP assessment. In most cases, a report is returned to COPFS and a prosecutor will determine whether to proceed with the DfP, or whether alternative prosecutorial action (if any) is appropriate. If DfP goes ahead this will usually be for about 3 months, but this is not a fixed period and may be extended. National Guidelines on Diversion from Prosecution were published in April 2020 and are currently under review.

Referral to the Children's Reporter

The Lord Advocate issues guidelines to the Chief Constable regarding the reporting to Procurators Fiscal of offences alleged to have been committed by children. It is the responsibility of the police, following the Lord Advocate's Guidelines, to decide to whom an offence shall be reported. A case is "jointly reported" where it is reported by the police to the Procurator Fiscal and the Children's Reporter in terms of the Lord Advocate's Guidelines. Although the decision regarding the jointly reported case is for the Procurator Fiscal, such a decision shall not be taken until the Children's Reporter has provided relevant information and views regarding the most appropriate decision.

When the outcome of the consideration of a jointly reported case is that the child will be referred to the Children's Reporter in relation to the offence, that decision cannot be reconsidered. The Scottish Children's Reporter Administration (SCRA) will take forward the referral, taking into account the particular needs and circumstances of the child. The children's hearings system is not a justice system, but one based in welfare needs. SCRA has developed a bank of resources to help neurodivergent children and those with learning disabilities through the hearings system.

Victims and witnesses in court

The Criminal Procedure (Scotland) Act 1995 (as amended by the Vulnerable Witnesses (Scotland) Act 2004 and the Victims and Witnesses (Scotland) Act 2014) makes provision in relation to special measures for vulnerable witnesses. Where there is a significant risk that the quality of evidence given by a person will be diminished because of mental disorder, the witness is deemed to be vulnerable and may be entitled to special measures when they give evidence. Examples of special measures include giving evidence by TV link or evidence being recorded in advance.

Under the Vulnerable Witnesses (Scotland) Act 2004, as amended by the Victims and Witnesses (Scotland) Act 2014, special measures may also be available in civil cases as well as in criminal justice cases.

Forensic Mental Health Inpatient services

We are aware that people in Forensic Mental Health in-patient services who have a learning disability or are neurodivergent, have specific and sometimes highly complex needs.

The Independent review into the Delivery of Forensic Mental Health Services^[268] made a number of recommendations to address the specific needs of these populations of people. We issued a response^[269] in October 2021.

We agree that collaboration between forensic and general mental health services is required to put the needs of people with learning disabilities and neurodivergent people at the forefront. We consider that alignment with the ongoing work to implement the recommendations of the Coming Home report ^[270] is crucial to achieve the best outcomes for people with learning disabilities, as discussed in another section of this consultation.

There is currently ongoing work to improve strategic planning and governance of forensic mental services and specific populations will be considered as part of this and any future service delivery based on needs assessment.

The State Hospital

People are only detained in the State Hospital for as long as they require care and treatment. A diagnosis of autism or a learning disability in itself is not a cause for detention in the State Hospital, as discussed in another section in this consultation relating to mental health and capacity law.

What can we do about it?

Data and identification of Neurodivergence and learning disabilities

Good data is necessary to understand how many neurodivergent people and people with learning disabilities are going through the different parts of the civil and criminal justice system and if this is proportionate to the rest of the population. A routine and reliable procedure for better identifying neurodivergence and learning disabilities on arrest, or those in police custody or in prisons, would significantly improve our understanding of the prevalence of people entering the criminal justice system and within the prison population.

Better data and identification allows planning for the provision of the right supports, analysis of offending behaviour, and the impact of interventions.

The second priority action of the National Strategy for Community Justice is to: "Improve the identification of underlying needs and the delivery of support following arrest by ensuring the provision of person-centred care within police custody and building upon referral opportunities to services including substance use and mental health services."

Public Health Scotland is working in collaboration with the Scottish Prison Service and prison NHS teams to deliver a health and wellbeing surveillance system that links a variety of prison and health data sets to inform on disease burden and outcomes for the prison population in Scotland. Mental health is a key area of interest and there are plans to scope out future analyses on the prevalence of neurodivergent conditions, learning disabilities and FASD.

This is dependent on access to prison primary care and mental health data of sufficient quality and would rely on clinical diagnosis being available.

Together with COSLA, we are committed to developing a nationally consistent, integrated and accessible electronic social care and health record as part of the new National Care Service. The integrated record will support people to tell their story once and ensure that staff have the right information at the right time to deliver the right care including when individuals enter custody settings.

Diversion from Prosecution (DfP)

A Joint Review of Diversion from Prosecution was carried out by HM Inspectorate of Prosecution in Scotland, HM Inspectorate of Constabulary in Scotland, HM Inspectorate of Prisons for Scotland and the Care Inspectorate, with a report published in February 2023^[271]. The review made 34 recommendations and found a need to:

• improve the quality of information submitted by the police to COPFS to assist appropriate decision making by prosecutors;
• improve communication between all parties;
• ensure the processes for managing diversion across agencies are as effective and efficient as possible; and,
• increase the take-up of diversion by accused persons. While diversion is voluntary, more could be done to tackle the level of non-engagement in the diversion assessment process.

The review also noted that:

"There were also examples of people being assessed as unsuitable due to their mental health or learning disability. The suitability assessment did not make clear if this was reflective of the capacity of the accused person to engage in the intervention, the availability of an appropriate intervention or simply the presence of these issues. Depending on the reason, this may call into question the equity of access to diversion from prosecution for those with particular protected characteristics."

Victims and Witnesses

We are progressing a range of measures to improve the experiences of victims and witnesses in the justice system. This includes legislation and is set out as follows.

Victims, Witnesses, and Justice Reform (Scotland) Bill

We have introduced the Victims, Witnesses and Justice Reform (Scotland) Bill (VWJR), which is currently at Stage 1 in the Scottish Parliament^[272].

The Bill aims to put victims and witnesses of crime at the heart of the justice system. The Bill has been informed by the work of the Victims Taskforce^[273] and the victim and survivor advisory board to the Taskforce, and Lady Dorrian's Review on Improving the Management of Sexual Offence Cases^[274]. Key parts of the Bill include

• establishing a Victims and Witnesses Commissioner;
• establishing a sexual offences court as a court distinct from existing court structures, which will enable complainers to give their best evidence while minimising potential for re-traumatisation;
• criminal justice agencies being required to have regard to trauma informed practice and this being embedded including through standards, rules and procedures; and,
• enhancing special measures in civil cases.

A Victims and Witnesses Commissioner is proposed as an independent voice for victims and witnesses, to champion their views and encourage Government and criminal justice agencies to put victims' rights at the heart of the justice system. The Commissioner will have a duty to monitor compliance with standards of service and the Victim's Code for Scotland, and to promote best practice, but will not have a power to intervene in particular cases.

Independent review of the Victim Notification Scheme

The Victim Notification Scheme (VNS) provides eligible victims with information about the release of an offender or patient in the forensic mental health system, and with the chance to make representations as part of decisions on release. We commissioned an independent review of the scheme in 2022; the review's report^[275] (including an easy read version^[276]) was published in May 2023. We are considering the terms of the review's report on the Victim Notification Scheme in collaboration with partners, and intend to publish a formal reply as soon as possible.

People at Heart

The First Word are a specialist communications agency who have been commissioned to improve victim experience of the criminal justice system - by ensuring communications with them are clear, person centred and trauma informed. They have created People at Heart, a person-centred, trauma-informed approach to communication that puts the needs of people affected by crime first. The First Word have worked with criminal justice agencies to rewrite communications, and have also created guidance, provided online training and developed digital learning for the justice agencies.

Training

Scotland has developed a trauma-informed knowledge and skills justice framework designed to help organisations commission the right training for their staff. The Framework was endorsed by the Victims Taskforce and was launched on 3 May 2023.

The framework will help justice organisations identify what their staff need to know to respond to victims and witnesses in a trauma-informed way and will inform the development of consistent training in trauma-informed practice. The next phase of work is the development and implementation of a training programme for all organisations involved in the criminal justice system.

The Learning Disability Queens Nurses developed the "Think COULD"^[277] animation. Its primary objective is to raise awareness about the diverse needs of individuals with learning disabilities, emphasising the fact that they may mask their condition, have reduced understanding of their actions, or have additional support needs. Interested individuals, organisations, and professionals working across sectors, particularly in justice are encouraged to access and share the animation widely, promoting greater awareness and understanding of the needs of people with a learning disability within the justice system.

It is acknowledged that criminal justice partners may also have been providing their own specific training on neurodivergence and learning difficulties.

Judicial training is a matter for the Judicial Institute and the Lord President, and is not a matter for the Scottish Government. However, since 2021, at the request of the Judicial Institute of Scotland, People First Scotland has delivered two training sessions a year to the Justices of the Peace (JPs). The Institute is planning on formally incorporating SOLD training to their training programme for JPs.

Prisons

We are working with SPS and NHS partners to improve health and social care within prisons. Screening for healthcare conditions takes place within 24 hours of entry to prison. On admission, as with all other conditions, any condition under the umbrella of neurodivergence would only be recorded on the basis of self-disclosure. There is scope to increase the opportunity for screening for people with neurodivergence and learning disabilities by including this as a specific consideration in the initial screening. Alongside development of clear referral pathways this would increase opportunities for people to access necessary support and services.

SPS staff are responsible for conducting a Core Screen within 72 hours of admission. The Core Screen is the initial contact for all people in custody. This provides a starting point for a full risk and needs assessment plus, identifying any immediate needs that require referrals to service providers and in order to have the best possible plan of action in place. This is especially important for very short-term prisoners. The Core Screen, in addition to wider sentence management processes, is currently under review. Currently, neurodivergence and learning disabilities may be captured if self-disclosed. People are then invited to participate in a screening process conducted by Fife College, who provide learning provision across all SPS sites.

If during this process the assessor identifies any behaviours, presentation or capacities that are indicative of a neurodivergent condition, a further referral can be made to apply a profiling tool called Do-IT. The referral process is open to all staff, not just SPS uniformed staff, and anyone may make a referral if they believe someone needs additional support. Do-It, is not a diagnostic tool, but it gives a broad indication of where an individual may need support and identifies a support package to mirror that need. The consideration of support needs is managed in a multidisciplinary context, with clear pathways should identified support or formal diagnosis be required through NHS colleagues or educational psychology.

The Scottish Health Check for Adults with Learning Disabilities

The Annual Health Checks for People with Learning Disabilities (Scotland) Directions 2023 ("the Directions")^[278], place a duty on Health Boards to ensure that an annual health check is offered to all people in Scotland aged 16 and over who have learning disabilities. The Scottish Health Check for Adults with Learning Disabilities (set out in Annex A of the Directions) must be used in carrying out the annual health check.

Health Checks are delivered by a registered nurse or registered medical practitioner and everyone eligible should be offered their first check by 31 March 2024. Health checks should be offered to people with learning disabilities in forensic and prison health care.

What can the LDAN Bill do?

There are many developments happening across the civil and criminal justice system that have the potential to be very positive for neurodivergent people and people with learning disabilities. Some of those changes are broad and are not specifically adapted for neurodivergence or learning disabilities, but trauma focused work is a key theme that can be built upon for these groups.

We think that there is merit in exploring the extent to which the Bill could seek to improve the position for a neurodivergent person or person with learning disabilities interacting with the justice system in the following ways.

Proposal 1: Strategies and a co-ordinated approach

We could consider bringing together a single national strategy that deals with neurodivergence and learning disabilities in the civil and criminal justice systems. There are many complex interactions between different parts of the justice system that would benefit from this approach and allow a clear set of priorities to be developed reflecting the other proposals below.

Proposal 2: Data and the identification of neurodivergent people and people with learning disabilities in the justice system

Improving data is a key proposal in this consultation and this includes access to better data within the civil and criminal justice systems.

Alongside this is a critical requirement to ensure that neurodivergent individuals and people with learning disabilities and their needs can be appropriately identified at key points of contact with the justice system. This is to ensure that:

• The right kind of communication is used and it is adapted for neurodivergent people and people with learning disabilities;
• Any additional impact of a situation, for example admittance to custody is understood and appropriate adjustments made such as to the physical custody environment;
• Additional supports are provided, such as an Appropriate Adult in criminal justice and access to independent advocacy;
• Appropriate information is fed into key decision points in the justice system to help provide more accurate future data.

At present the onus in the criminal justice system is often on individual police officers to recognise and flag up any additional needs. This might happen on arrest or on admittance to a custody suite. We want to consider how best to ensure that neurodivergence and learning disabilities are better identified at relevant points and by relevant staff.

One way that this could happen in practice would be to identify individual needs, including communication needs, on arrest or admittance to custody. In custody, questions could be added to the vulnerability assessment that is used. Better identification would allow the information to be included within the Standard Prosecution Report that is sent to the COPFS. We might also wish to ensure that the Vulnerable Person's Database is a reliable source of information and used effectively in all cases.

The Bill could potentially place a duty on public bodies such as the Police, COPFS, and the Scottish Prison Service to seek to identify neurodivergence and learning disabilities when people are coming into contact with the criminal justice system. This could apply at key points such as:

• When a victim or witness comes forward
• When someone is arrested and brought into custody
• When someone is sentenced
• When someone is admitted to prison to begin a sentence

This is not about diagnosis - it is about identifying the need for support.

It may also be possible to investigate whether a common screening tool across criminal justice agencies could help.

Proposal 3: inclusive communication

Inclusive communication is critical for neurodivergent people and people with learning disabilities and we have set out broad proposals around this in the overarching themes section.

Those in contact with the criminal and civil justice systems need to be able to fully understand the information they are being given whether they are a victim, witness, party or potential offender. If information is not accessible this can result in people being either unaware of their rights or unaware that they are at risk of breaching standard or special bail conditions. This also places additional costs on the criminal and civil justice systems that could potentially be avoided. Sometimes advocacy will be needed to support people to understand information and we have set out our approach to this in the overarching themes section. We also think there is a need to make more people working in the criminal and civil justice systems aware of the need for and provision of advocacy.

The approach we have set out earlier in this paper on inclusive communications proposes:

• Better access to easy-read versions of public facing communications and documents made by public authorities. This could include a broad duty to make them available on request and an automatic duty to provide them in certain circumstances. For example, a duty on the Police, the Scottish Courts and Tribunal Service and the Scottish Prison Service to provide information to people accused or convicted of a crime in an accessible way, including standard bail conditions.
• Provide for neurodivergent people and people with learning disabilities request access to alternative means of communication where the offered means of communication will not work for them. This could mean being able to ask for an online meeting rather than face to face or a telephone call instead of a letter.

Proposal 4: Mandatory Training

Proposals in relation to mandatory training are set out in the overarching themes section. We propose that the Bill provides for training on neurodivergence and learning disabilities to become mandatory for health and social care staff, and we are seeking views on whether this should be extended to other public bodies.

We could therefore consider extending the requirement for mandatory training to police, prison, COPFS and relevant courts and tribunals staff.

Training is a way to ensure that there is better understanding of neurodivergence and what it means and that people who are neurodivergent and people with learning disabilities coming into contact with the civil and criminal justice systems are dealt with appropriately whether they are a victim, party, witness or accused.

We think that mandatory training for staff in the civil and criminal justice systems is a key element to support better identification of needs, better support and improved communications. We know that not all staff will need this but public facing staff would, and we could consider how to define this in the Bill.

We could look at mandatory training for both new and existing staff, and could utilise, for example, the existing police and prisons colleges.

Proposal 5: Advocacy

Proposals are set out in the overarching themes section in relation to advocacy. There is currently work going on across the Scottish Government to consider a consistent approach to advocacy and this includes neurodivergent people and people with learning disabilities. We do not want to take anything forward separately on advocacy that is not informed by this work. If necessary, and if this work is not concluded, we could consider the Bill conferring a power that would enable the Scottish Ministers to make any necessary regulations on independent advocacy for neurodivergent people and people with learning disabilities, should this be required.

In addition, mandatory training could include information 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)

We know that for some neurodivergent people and people with learning disabilities preventative support to address offending behaviour can make a difference. Other proposals in this paper seek to ensure that neurodivergent people and people with learning disabilities have their identifiable needs addressed more effectively in future.

As with other people, neurodivergent people and people with learning disabilities may benefit from the use of DfP where they are alleged to have committed offences.

The 2023 review of DfP highlighted a range of areas for improvement. However, there is little evidence of how DfP is applied to neurodivergent people and people with learning disabilities. Better identification within the justice system and training for staff to understand how to do this could help. A requirement to identify needs should allow better information to be provided by the Police to COPFS in the Standard Prosecution Report (SPR). The SPR is the basis on which COPFS can make a decision about DfP. This will also help local authorities when they complete their DfP assessment as they would need to take this into account.

Training and awareness raising provided to professionals working in COPFS on neurodivergence and learning disabilities, how it impacts on people's lives, and how it can have an influence on offending behaviour, could help with increasing consistency of decisions around DfP for these groups. This training could include the role of support in reducing the likelihood of re-offending.