Criminal Justice System
People with learning disabilities come into contact with the Scottish criminal justice system as:
- People accused or suspected of a crime
- People convicted of a crime.
People with learning disabilities are more likely than other people to become victims of crime because of:
- Limited ability to identify risky situations
- Lack of understanding of the motivation of others
- Communication difficulties
- Poor social understanding
- More prone to being tricked, deceived or exploited by others.
- Being targeted as 'easy victims' who will not report crimes to the authorities.
- Being more likely to live in high crime neighbourhoods.
The Offences (Aggravation by Prejudice) (Scotland) Act 2009 was introduced which means that any criminal offence committed against a person or property that is motivated by hostility towards someone based on their disability is a hate crime.
The Scottish Government believes that there is no excuse for any form of hate crime: it is simply not acceptable and it will not be tolerated. When it does happen, we want the justice system to deal with such crimes effectively so that victims have the confidence to report it, secure in the knowledge that they will receive a good level of service from the police and other agencies.
'Hidden in plain sight' is a report of an inquiry into disability-related harassment published by the Equality and Human Rights Commission in 2011. The report said that harassment is a commonplace experience for disabled people, but a culture of disbelief and systemic institutional failures are preventing it from being tackled effectively. As well as reporting on the extent of harassment, the report makes recommendations to public authorities to help them deal with the problems uncovered, such as, all individuals and organisations should know how to recognise report and respond to disability-related harassment.
Joint working between agencies, such as health, social work, housing, education and criminal justice services, is needed to help keep people with learning disabilities safe and provide the support they need.
The Scottish Government published a series of easy read booklets in March 2011 for people with learning disabilities and the criminal justice system116. These booklets were intended to give people with learning disabilities enough information to be better able to exercise their rights and responsibilities within Scotland's criminal justice system. A resource for professionals was also produced.
Advocacy services can be very helpful to individuals with learning disabilities who are involved in the criminal justice system and will help them to speak up for their rights in that context. More information on advocacy can be found at www.siaa.org.uk/content/view/14/27/
Police Scotland has also recently published its equality strategy117.
Victims and witnesses
In 2010-11, 35% of those people reported as having learning disabilities reported that they had been a victim of crime - this compares with a Scottish average of 18%.
Where there is a significant risk that the quality of their evidence will be diminished by reason of mental disorder, as defined in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (i.e. "any mental illness, personality disorder, learning disability however caused or manifested"), witnesses (and victims who are witnesses) are considered to be vulnerable and are entitled, at the discretion of the court, to use special measures to assist them give their evidence. The special measures are a live television link, a screen, a supporter, giving evidence in chief in the form of a prior statement and taking evidence by commissioner.
The Victims and Witnesses Bill was introduced to the Scottish Parliament on 6 February 2013. It makes a number of changes to improve the way in which vulnerable witnesses are identified and supported when required to give evidence. One of these changes is to give Scottish Ministers an Order-making power which will allow limited pilots to be carried out of new special measures, to allow these to be tested and evaluated before deciding whether they should be rolled out across Scotland.
The impetus behind this is that there are no special measures at present which offer support specifically to those with communication needs. The Scottish Government consider that such measures could be of use to some vulnerable witnesses. Intermediaries and witness profiling are two promising measures which have been suggested to date - there may well be more. Intermediaries may be useful in ensuring that witnesses with communication support needs can understand questions put to them and can communicate their answers effectively, and witness profiling would allow an assessment of the individual's potential to be a credible and competent witness to be presented to the court before any trial. The Scottish Government intend to study these in more detail to see whether there is merit in piloting either or both of these measures. All of the provisions in the Bill are intended to apply equally to all victims and witnesses, including those with learning disabilities.
More generally, the Scottish Government is working to improve the process of witness citation. The aim is to make the process easier to understand for all, including those with learning disabilities. The aim is to introduce measures that improve the likelihood of cases going ahead and to reduce the number of times that people are called to court.
Accused or suspected of committing a crime
People with learning disabilities who are accused or suspected of committing a crime will often require extra support to help them understand the criminal justice system and to ensure that the treatment they receive within that system is fair and equal to other people in the same situation.
It is important that professionals working in the criminal justice sector are aware of the steps that they can take to ensure that a person with learning disabilities can access suitable mechanisms to provide the additional support that they need. This can assist in explaining and understanding the criminal justice system and what is happening to the individual, as well as assisting the relevant agency to get the information required.
A guide explaining the role of the various agencies was produced in 2011 entitled 'People with Learning Disabilities and the Criminal Justice System'. This provides useful information for police, lawyers, court staff, social workers and prison staff to assist them to deal effectively with people with learning disabilities, of people who they suspect may have learning disabilities.
More work is needed to ensure that this guide is readily available to practitioners and that they are supported to implement its findings.
Criminal Justice (Scotland) Bill
The Criminal Justice (Scotland) Bill, planned for introduction to the Scottish Parliament in 2013, will implement the recommendations of Lord Carloway in his expert Review of Criminal Law and Practice (2011). Under the changes recommended by Lord Carloway, the revised criminal justice system will start from a simplified, unitary system of arrest, on reasonable grounds for suspicion, and detention. An arrest will trigger a set of rights for the suspect securing access to a lawyer, with particular protections for child suspects and vulnerable adults. These protections will ensure that the specific needs of vulnerable individuals are met, including those with learning disabilities, and that such individuals are fully supported and able to participate in the investigation.
Fundamental to ensuring people are fully supported in the criminal justice system in Scotland is the service delivered by Appropriate Adults. The current non-statutory role of an Appropriate Adult is to facilitate communication during police procedures between the police and adult suspects, accused, victims, and witnesses (aged 16 or over) who have a mental disorder or learning disability. Appropriate Adults are specifically recruited for their experience (professional or otherwise) in working with mentally disordered people, and their communication skills. They are often social workers or health professionals (although they do not fulfil the Appropriate Adult role in that professional capacity). Appropriate Adults are expected to successfully complete nationally recognised training and follow the Scottish Appropriate Adult Network National Guidance.
Lord Carloway's Review made recommendations in relation to individuals who have permanent or semi-permanent vulnerabilities that affect their fitness to be interviewed, when arrested and detained as a suspect by the police. Individuals with learning disabilities may be assessed as vulnerable. In brief, the provisions will provide a succinct and accessible statutory definition of a vulnerable adult suspect (aged 18 or over). The provisions will also define the role of an Appropriate Adult in supporting such suspects, thereby establishing in statute the existing role currently delivered by the non-statutory service.
Another recommendation from the Review, is that a 'Letter of Rights' be introduced without delay. The Letter of Rights will provide all suspects held in police custody with written information on their procedural rights under the European Convention on Human Rights, as provided for in domestic legislation. The Scottish Government has held informal discussions with third sector and voluntary organisations, including advocacy organisations for people with learning disabilities, to determine how best to make such a document accessible to people with learning disabilities. The Government plans to continue working with these organisations to design and introduce an easy-read version of the Letter of Rights in Scotland, which will enhance accessibility to important information on an individual's rights and ensure those with learning disabilities are able to participate effectively in the criminal justice system and are fully aware of the support services available.
The Scottish Government recognises young people in the Justice system as one of the key groups of young people who need more choices and chances to keep them engaged in learning and supported to make positive life choices. Building on early identification and tracking of 'at risk' children and young people - an ongoing priority for local More Choices More Chances Partnerships - partners should be aware of the circumstances and needs of these young people; be alert to specific issues likely to impact on their post-16 transition; and put in place the provision required to enable them to participate and progress. For these young people, needs-led targeted assessment and planning must start early, often at the transition from primary to secondary school; and should bring in wider services as appropriate, in keeping with the GIRFEC principles.
Partners will recognise that some groups of young people have additional support needs and/or personal circumstances which present significant barriers to learning and employment. Some young people have particularly complex additional support needs and may not, therefore, be able to take up employment. In such cases, partners should work together locally - with the young person and their parents or carers - to ensure the young person can engage in appropriate progressive activity. Inevitably, some young people might take longer to progress and local partners may wish to extend their offer of learning or training accordingly.
That with immediate effect, justice organisations should ensure they develop easy read and other accessible information resources for all literature they produce that is available to the public.
That a national criminal justice action group to be established in 2013, consisting of professionals in this field and working in partnership with people with learning disabilities, to identify challenges and promote opportunities and influence change and to provide support for people with learning disabilities in the criminal justice system.
That by the end of 2014 all relevant organisations to review and implement recommendations of 'No-One Knows - Prisoners with Learning Difficulties and Learning Disabilities, Scotland' where they have not already.
That all professionals involved in the criminal justice system have access to the 2011 guide 'People with Learning Disabilities and the Criminal Justice System' and consider how they can best support people with learning disabilities in that context.
The newly constituted Equalities sub - group of the Justice Board, representing all policy and operational interests in Justice, will oversee progress in implementing these recommendations.
There is an increasing focus on people with learning disabilities entering the Criminal Justice System in Scotland. There is a range of factors that contribute to offending behaviours in people with learning disabilities including substance misuse, communication disorders and challenging behaviours relating to co-existing pervasive developmental disabilities, such as Attention Deficit Hyperactivity Disorder, Feotal Alcohol Spectrum Disorder and Autistic Spectrum Disorder. There is clear international evidence of the co-existing complex health needs experienced by people with learning disabilities which include both mental and physical challenges.
As the population of people with learning disabilities increases, with a rise in the number of young people with developmental disorders and the associated health needs and complex behaviour presentations, there is a need to understand and analyse the nature and extent of the health and support needs of people with learning disabilities within the criminal justice system to ensure that their distinct needs are recognised and addressed. Offender rehabilitation programmes need to be reviewed and amended so that these are responsive to their specific needs thereby aiming to minimise reoffending and victimisation.
That research will be undertaken across the Criminal Justice System in Scotland by Scottish Consortium for Learning Disability and NHS Greater Glasgow and Clyde to understand and analyse the nature and extent of the health needs of people with learning disabilities within the criminal justice system to support the development of appropriate responses that address the distinct health and rehabilitation needs.
Email: Julie Crawford
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