1. 11 Mental health, learning disabilities & autism in the criminal courts Jenny Talbot, Prison Reform Trust 12 March 2014

2. What I will cover: Prevalence Vulnerable defendants: – Experiences – Liaison and diversion – Supporting vulnerable defendants Focus on communication New resource: mental health and learning disabilities in the criminal courts Questions. 2

3. Prevalence – England & Wales: A quarter of children who offend have very low IQs of less than 70 (Bailey et al, 2005) Generally acknowledged that 5 – 10% of adult offenders have learning disabilities (Department of Health) 43% of children on community orders have emotional and mental health needs; the prevalence is much higher in custody (Chitsabesan et al, 2006) In one probation area, 39% of adult offenders under supervision had a current mental illness; 49% had a past/life time mental illness; 72% had a dual diagnosis (Brooker et al, 2011) Around two-thirds of prisoners have a personality disorder (Centre for Mental Health, 2009) 35% of adult offenders have speaking and listening skills below level 1 (Davies et al, 2004) 60% of children who offend have communication difficulties (Bryan et al, 2007). 3

4. Prevalence – Scotland: Most studies undertaken in England and Wales Very large proportion have mental health problems, of which around 4.5% have severe problems (HM Inspectorate of Prisons, 2008) Under identification of people with learning disabilities and people on the autistic spectrum; a self report study found that few offenders had been formally assessed (Myers, 2004.) 4

5. Prevalence, autistic spectrum conditions: Individuals with ASC are over-represented in the criminal justice system (Browning and Caulfield, 2011; Cashin and Newman, 2009) There is no consensus on the prevalence of people with ASC who offend (Chaplin et al., 2013) The British Psychological Society: autism in the criminal justice system (Dr Katie Maras, University of Bath). 5

6. Learning disabilities – so what? Limited language ability, comprehension and communication skills: – Difficulty understanding certain words – Difficulty understanding and responding to questions – Difficulty reading body language and following social cues Limited memory capacity: – Difficulty recalling information – Take longer to process information – Difficulty ordering and sequencing Can be acquiescent and suggestible; under pressure, might try to appease others Frequently unable to read and write very well, or at all. 6

7. Vulnerability in court, Scotland: Vulnerable Witnesses (Scotland) Act 2004: – Children under 16 years of age – An adult whose evidence may be diminished as a result of mental disorder as defined by s328 Mental Health (Care and Treatment) (Scotland) Act 2003, which is: any mental illness, personality disorder or learning disability, however caused or manifested.Note: this definition is currently the subject of debate, precipitated by Criminal Justice (Scotland) Bill See also the Carloway Report (2011). 7

8. Vulnerability in court, E & W: All children are vulnerable and many are doubly so Vulnerable adults are people aged 18 years or over who may be unable to take care of themselves, or protect themselves from harm or exploitation. This may be because they have a mental health condition, or are disabled, or elderly and frail or have some form of illness. Often there are overlapping areas of vulnerability such as illness and being elderly. (Fairness in courts and tribunals, 2012). 8

9. Experiences in court: Film clip: learning disabilities and the criminal courts, six minutes: – http://www.mhldcc.org.uk/contents/4-learning- disability/d-how-to-recognise-when-a-defendant- might-have-a-learning-disability.aspx http://www.mhldcc.org.uk/contents/4-learning- disability/d-how-to-recognise-when-a-defendant- might-have-a-learning-disability.aspx 9

10. What defendants with LD said: I understand that I have done something wrong, but I'm still not quite sure what that is. You also feel small when you are in court. (Scotland, woman prisoner) If someone had explained in my language what things meant this would have helped, for example, lewd, libidinous, bail. I asked my mum but she didn’t understand either. (Scotland, woman prisoner) I couldn’t really hear. I couldn’t understand but I said ‘yes, whatever’ to anything because if I say, ‘I don’t know’ they look at me as if I’m thick. Sometimes they tell you two things at once. (possible borderline LD) I’m not good at speaking and they don’t listen. I needed more time to explain myself. Nobody told my mum I was going to gaol, she thought I was dead. I asked how they were going to tell my mum, but it took three months for anyone to contact her. I finally found someone to help me write a letter. (Scotland, possible LD). 10

11. Experiences of justice: Scottish Association for Mental Health, ‘Justice Involvement Event’, 2009: – Attitudinal barriers – Poor identification of mental health problems – Communication barriers – Courts are scary places… and the staff look right through you. They need training how to talk to people with mental health problems, mental health awareness. 11

12. Liaison and diversion services, Scotland: Court liaison services (local variations) Diversion from custody; four priority areas: – Alcohol and drugs misuse – Women – Persons with mental health or learning difficulties – Young people aged 16-17 years Falling numbers of diversions, although probably ‘not yet a trend’ (SCCJR, 2011) Reducing reoffending programme: agreement in 2013 to develop mental health training materials for Criminal Justice Social Workers. 12

13. Liaison and diversion services, E & W: Recommended in The Bradley Report (2009); accessible for every police custody suite and criminal court in England Target group: people with mental health problems, learning disabilities, autistic spectrum disorders (not exclusive), substance misuse, and children Cross ministerial commitment to deliver: Department of Health, Ministry of Justice and Home Office Initial commitment by end 2014; now 2017 101 pilot sites (from 2011);10 trial sites (from 2014), and a robust evaluation. 13

14. Liaison and diversion services, E & W: Population coverage: – 25% by March 2014 – 50% by March 2015 – 75% by March 2016 – 100% from March 2017 But, full business case approval required, autumn 2015 National model and service specification; local delivery. 14

15. Supporting vulnerable defendants, Scotland: Vulnerable Witnesses (Scotland) Act 2004 introduced ‘special measures’. These also apply (with certain modifications) to the accused, and include: – Television link – Supporter – Prior statement – Evidence taken by a commissioner Guidance pack on special measures (Scottish Government, 2008). 15

16. Supporting vulnerable defendants, E & W: Youth Justice and Criminal Evidence Act, 1999 – Vulnerable defendants excluded from ‘special measures’ Coroners and Justice Act, 2009 – provision for intermediaries for vulnerable defendants, but not implemented Case law, for example: – C v Sevenoaks Youth Court (2009) – R v Great Yarmouth Youth Court (2011) Guidance: – Equal Treatment Bench Book/Fairness in courts and tribunals – Criminal Practice Directions. 16

17. Supporting vulnerable defendants: Equality Act, 2010: ‘reasonable adjustments’ should be made to ensure that discrimination against people with disabilities does not occur (Scotland, England and Wales) For someone with a learning disability, the court environment and process is confusing and possibly frightening. The court environment could very easily, and with little extra cost, be made less intimidating… We found, however, that little attention had been paid to the needs of those with LD, for example through the availability of ‘easy read’ posters and leaflets to explain the court process (CJJI on the treatment of offenders with LD within the CJS, 2014). 17

18. Easy Read: Easy Read presents information using simple words and pictures making it easier to understand It is a ‘reasonable adjustment’, required by the Equality Act HMCTS: an easy read guide on how and where to pay your fine. 18

19. Focus on communication, E & W: The court is required to take every reasonable step to encourage and facilitate the participation of any person, including the defendant. This includes enabling a defendant to give their best evidence and to comprehend the trial proceedings and engage fully with his or her defence (CPDs, 2013) Effective communication is the bedrock of the legal process. It is vital that justice is both done and seen to be done (Judicial College, 2012) Film clip, six minutes: http://www.mhldcc.org.uk/contents/9-supporting- vulnerable-defendants-in-court/e-communication-in- court.aspx http://www.mhldcc.org.uk/contents/9-supporting- vulnerable-defendants-in-court/e-communication-in- court.aspx 19

20. Supporting communication and comprehension: Easy Read Non-specialist support, for example: – Use the defendants name; secure their attention – Simple language; short sentences; one piece of information per sentence – Don’t ask, ‘do you understand?’ Ask, ‘what have you understood?’ – No jargon, technical or legal terminology – Extra thinking time – Offer support with reading AND comprehension – Help with making notes of proceedings – Sitting next to their advocate, carer or family member – Check the defendant can hear what is being said – Breaks for explanations. 20

21. Specialist communication support, E & W: Film clip, two 2 minutes: http://www.mhldcc.org.uk/contents/9- supporting-vulnerable-defendants-in-court/e- communication-in-court/i-specialist- communication-support-–- intermediaries.aspx 21

22. Intermediaries for defendants, E & W: Guidance: – Guidance for HMCTS staff, revised January 2014 (including funding arrangements) – Consolidated Criminal Practice Directions, 3F – The Advocates Gateway, Toolkit 8; hyperlink to Advocates Gateway from www.mhldcc.org.ukwww.mhldcc.org.uk Liaison and diversion staff can help to determine need Court can use inherent powers to appoint Use of an intermediary should be considered early Intermediary for evidence only or for the whole trial No standard way of finding a defendant intermediary. 22

23. Mental health and learning disabilities in the criminal courts: Background to the resource: – Lord Bradley’s review into people with mental health problems or learning disabilities in the criminal justice system (2009) – Partnership between: Prison Reform Trust, Rethink Mental Illness, Justices’ Clerks’ Society, Magistrates’ Association, & the Judicial College. 23

24. Mental health and learning disabilities in the criminal courts: Topics covered: – Mental Health – Learning disability – Other disabilities and impairments – Co-morbidity and dial diagnosis – Fair trial and fitness to plead – Vulnerable defendants in court – Supporting vulnerable defendants – Bail and remand decisions – Liaison and diversion services – Sentencing – Breach – Mental Health Act Chapter summaries Hyperlinks to legislation and further reading Film clips to illuminate key points Case studies To follow: – ‘App’ – news page www.mhldcc.org.uk 24

25. Any questions? www.mhldcc.org.uk Thank you Jenny.talbot@prisonreformtrust.org.uk 25