Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Mencap (LA 43)

Contents

· People with a learning disability in the criminal justice system

· Accessible information:

o Duty to give reasons for and to explain effect of sentence

o Sentencing of offenders: programme requirement

· Employment in prisons: deductions etc from payments to prisoners

· Conditional Cautions: involvement of prosecutors

· Youth Cautions

· Attorney General’s References: ‘Unduly lenient’ sentencing

· Appendix A: Mencap’s interest in criminal justice – Raising Your Game programme delivery and Stand by me hate crime campaigning

About Mencap

Mencap supports the 1.5 million people with a learning disability in the UK and their families and carers. A learning disability is caused by the way the brain develops before, during or shortly after birth. It is always life - long and affects someone's intellectual and social development .

Mencap fights to change laws and improve services and access to education, employment and leisure facilities, supporting thousands of people with a learning disability to live their lives the way they want.

Mencap is also one of the largest providers of services, information and advice for people with a learning disability across England , Northern Ireland and Wales . See www.mencap.org.uk for more information.

About Learning Disability

A learning disability is caused by the way the brain develops before, during or shortly after birth. It is always lifelong and affects someone's intellectual and social development. It used to be called mental handicap but this term is outdated and offensive. Learning disability is NOT a mental illness. The term learning difficulty is often incorrectly used interchangeably with learning disability.

People with a learning disability and the criminal justice system

As both victims and perpetrators of crime, people with a learning disability experience a justice system that is often confusing, complicated and unable to support their needs.

As a victim they may lack the confidence to report crime or be unable, through a lack of support, to give evidence that can help to secure convictions. Where convictions are secured, the victim may have difficulty in understanding the purpose or type of sentence, leaving them dissatisfied with the outcome.

As perpetrators, people with a learning disability are often directed into inappropriate sentences, into prisons that are unable to provide the health and social care support required. The current systems of probation and community sentences also lack the required support or reasonable adjustments that can increase both the speed and effectiveness of rehabilitation programmes. Almost a quarter of prisoners under 18 years old have a learning disability or difficulty, with a 78% re-offence rate among those at risk. [1] We believe this shows how a better understanding of how to work with offenders who have a learning disability would be help to reduce rates of offending overall.

The effect of this is a system that fails to engage offenders in punitive or rehabilitative structures whilst also diminishing the confidence victims have in the system. Mencap believes therefore that there is a need to examine the treatment of offenders in the context of wider shortcomings in the justice system in the way it identifies and supports people with a learning disability.

Accessible information

Suggested Amendment – Duty to give reasons for and to explain effect of sentence

· Clause 54 (3):

delete "ordinary language" and insert "in an accessible way that may include, but will not be limited to simple use of language, Braille and Easy read"

Between 20-30% of offenders have a learning disability, yet the 1.5 million people with a learning disability make up just 2.5% of the UK’s overall population. As well as causing problems with communication and learning, a learning disability will affect offenders’ ability to cope with the criminal justice system. [2]

Someone with a learning disability may find it difficult to understand not only the sentence they receive but the purpose of the court or why they are appearing in court in the first place. That is not to say that people lack capacity but merely that they will require additional support to stand trial.

Case Study - In one example, one young person understood that he was to be sentenced but did not understand the implications of this in terms of him not being able to see his parents following the trial. Situations like this add to the distress of the court proceedings and make the sentencing process more difficult to understand.

Making sentencing easier to understand for people with a learning disability

This requires judges, court staff, prosecutors and defending counsel to be aware of and make use of support both to ensure a defendant can understand the process and procedures of the court as well as the sentence being passed down.

The appropriate reasonable adjustments should therefore be applied, particularly around the language that is used to describe a sentence so that individuals with a learning disability in the court are fully aware of the implications of their sentence. Clause 54 makes reference to the need to use "ordinary language" in the court when explaining details of a sentence, but Mencap would like to see this extended to include all forms of accessible communication so that the individual is fully aware of the nature and detail of what has been said.

Suggested Amendment – Sentencing of offenders: programme requirement

· Before Clause 59 (1):

insert new clause "A public body imposing an order as laid out in this section shall have a duty to take all reasonable steps to ensure that the terms and requirements of the order are understood by the recipient of that order"

This use of accessible communication also applies to requirements under community orders and suspended sentence orders. It is essential that the expectation of someone to fulfil any programme requirements should be contingent on reasonable steps being taken to ensure that any individuals undertaking the programme understand what is being required of them.

People with a learning disability may require increased support to enable them to meet the terms of any order. For example, young people accessing Mencap’s Raising Your Game project have said that they have difficulty understanding where they had to be at which times. This corroborates the findings of the British Institute for Brain injured Children- that people with a learning disability or autistic spectrum disorders do not always understand the terms of their order. [3]

Case Study – Good practice

Mencap is pleased that the government is exploring options such as text message reminders about curfews. However, welcome innovations such as this do need to be considered alongside the accessibility of the technology. Many people with a learning disability do not use mobile phones, especially for SMS messaging as the keyboard is too small to be useful or due to poor literacy skills [1] . Mencap does support innovations to assist people to adhere to community orders or suspended sentence orders, but to work effectively this must be undertaken in consultation with people with a learning disability to ensure accessibility.

Importance of additional support provision for people with a learning disability in the criminal justice system

Mencap would like to emphasise that the additional support required for people with a learning disability should not exclude them from being given sentences that include adherence to community orders. The focus should instead be on ensuring that the additional support is available. These orders should therefore be designed around the support available to an individual. Additional support should be provided if necessary and consultation held to ensure that the terms of the order are appropriate to the level of support. Failure to do this may result in the individual failing to meet the requirements of the programme not because they are deliberately disobeying the conditions set out, but because they are not aware of what conditions they are supposed to be obeying.

If reasonable adjustments are not taken to increase comprehension of people with a learning disability, there is a risk that these individuals will be disproportionately affected by any sanctions that result from not adhering to the specific conditions.

Employment in prisons

Suggested Amendments – Employment in prisons: deductions etc from payments to prisoners

· After Clause 103 (2) (b) insert:

"(c) the availability of support to both carry out employment"

"(d) to understand the terms of employment in prison"

· After Article 103 (4) (b) insert:

"(c) the availability of support to both carry out employment"

"(d) to understand the terms of employment in prison"

In principle Mencap agrees that one function of prison must be to rehabilitate offenders, therefore reducing the likelihood of them returning to crime upon their release. Helping people to develop skills they can use outside of prison seems like a logical step to achieving this.

However, Mencap has concerns around the implementation of plans to turn prison into a hard work and meaningful activity.

Barriers to employment for people with a learning disability

Only 6.4% of people with a learning disability known to social services are in any form of paid employment. This is due to a number of factors such as employer prejudice, lack of accessible workplaces and flexible working hours and increased support needs. Many people with a learning disability undertaking employment in prisons will need support and reasonable adjustments to enable them to do certain work. If people with a learning disability are to be integrated into work inside prisons then appropriate support must be made available. This support must be assessed on an individual basis.

Mencap is concerned that, in the absence of this support, many people with a learning disability will be unable to participate in the working ethos of prisons the government seeks to implement. This may leave them isolated and unable to integrate into prison life, making them more vulnerable to targeted harassment and abuse. Furthermore, where such programmes are a condition for early release and parole, the lack of support will exclude people with a learning disability from such opportunities and therefore punish them more severely than other offenders.

In addition to this, with the potential for financial penalties to be associated with failure to carry out the necessary employment activities, people with a learning disability stand to be disproportionately affected.

The correct provision of support is therefore necessary to ensure that people are both able to carry out the terms of their employment in prison as well as to ensure that these terms are properly understood so that the individual is aware of what is required of them.

Conditional Cautions

Suggested Amendment – Cautions: conditional cautions: involvement of prosecutors

· After Clause 107 (3) inset new subsection:

"In Section 23(4) (requirement to explain the effect of the caution), for "explains the effect of the conditional caution to the offender" substitute "takes all reasonable steps to ensure the conditions of and effects of the conditional caution are understood by the offender"

As is the case in a court setting, people with a learning disability may require additional support to understand the conditions and the consequences of conditional cautions so that they are able to adhere to them.

The key to ensuring people with a learning disability are treated appropriately at all stages of the criminal justice system is identifying them as requiring additional support at the earliest opportunity.

Early identification to meet the needs of people with a learning disability

One route for achieving this could be the use of a learning disability screening tool that is being developed and trialled by the Department of Health. This consists of a short series of questions that can be asked when a person is first taken into custody. The questions will identify if someone is likely to have a learning disability and officers will be able to ensure that appropriate support is available.

This will mean that if someone is identified as having a learning disability in police custody, the knowledge will be retained and communicated to the courts and ultimately to the prison and probation services. The government can help to remove barriers to sharing this information by making the screening of offenders for learning disability a mandatory part of the custody and subsequent transfer process. Such a move would force recipient agencies to consider not just whether someone has a learning disability but also ensure that policies and procedures around reasonable adjustments are in place.

By identifying and meeting the additional needs of people with a learning disability at an early stage in the process, there is a greater chance of these individuals receiving the support they require to reduce the risk of re-offending or of meeting the conditions resulting from their current sentence.

Youth Cautions

Suggested Amendments –

· Clause 109, Amendment 66ZA "Youth Cautions" (3)

delete "ordinary language" and insert "in an accessible way that may include, but will not be limited to simple use of language, Braille and Easy read"

· Clause 109 , Amendment to 66ZA "Youth Cautions" (3):

after "(b) where that person is under the age of 17, the appropriate adult" insert "(c) where a person requires support to communicate or understand the process"

23% of young offenders have a learning disability which is a clear indicator that current approaches to tackling youth offending amongst young people with a learning disability are not working.

As mentioned above, early intervention is the key to overcoming this, but it is also necessary to ensure that people with a learning disability understand the full implications of their actions from an early age. The British Institute of Learning Disabilities (BILD) estimates that up to 90% of people with a learning disability have communication difficulties. [4] Therefore a focus on the ways in which to overcome these potential barriers could help to improve the articulation of any wrongdoing, thus avoiding misunderstanding and increasing the awareness of the individual as to the consequences of their actions from an early age.

Clause 109 Amendment 66ZA "Youth Cautions" (3) again refers to a need to provide information – this time in the context of youth cautions – in "ordinary language" but, in order to overcome the communication barriers that often exist between young people with a learning disability and law enforcers, this must go further to include the most appropriate and accessible forms of communication, such as easy read.

Attorney General’s References: Reference of sentence of Crown Court appearing to be unduly lenient

Mencap is concerned about inconsistent approaches to sentencing. In terms of disability hate crime, we see strong but appropriate sentences as an effective deterrent for crimes and a way of reducing offending rates. Robust sentences send a message to the perpetrators of crime and to people with similar attitudes that society will not tolerate their behaviour. We do not intend to call for custodial sentences in all cases but feel that sentences should be robust enough to act as a deterrent.

Case Study - In October last year, three men who brutally attacked and tortured a young man with Asperger’s syndrome (a form of autism) were prosecuted for actual bodily harm. Over a three day period, they kicked and stamped on his head, repeatedly punched him in the chest, beat him with a tennis racket and then threw him down a steep embankment. He was also pelted with dog faeces, had his limbs scratched with sandpaper and was forced to drink vodka and gin until he passed out. His assailants – Messrs Bolton, Marshall and Griffin – received just 80 hours of community service for these crimes. Mencap considers this and other sentences of this type insufficient and "Unduly Lenient".

Adding d isability as a protected characteristic in relation to ‘ unduly lenient’ sentencing

The Attorney General has the power under the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006, to review the sentences of crimes which he considers "Unduly Lenient". This only applies to particular types of offences, including those crimes against the person that are racially or religiously aggravated.

The Criminal Justice Act 2003 provides for increased sentences when crimes are racially aggravated (section 145) or motivated by hostility towards disability or sexual orientation (section 146). We therefore feel that the lack of provision to review sentences in disability (or, indeed, sexual-orientation) motivated offences as set out for racially aggravated offences in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 is inconsistent and discriminatory.

We believe there is a very strong case, both morally and legally, for the powers to amend the 2006 Order to extend the power of the Attorney General to review cases that are aggravated by hostility towards disability. These steps would also make the sentencing procedure more transparent as the public could see potential safeguards against unduly lenient sentences and feel confident that sentencing is working more effectively to protect the public.

Appendix A – about Mencap’s interest in criminal justice

Raising Your Game - Raising Your Game is a Mencap delivered project for young people aged between 14 and 25 with a learning disability or communication difficulty. Some have been in trouble with the police and some are at risk of getting in trouble. Young people with a learning disability or communication difficulty are at a higher risk of offending because they are not getting the right support in life. With Raising Your Game we are helping them to get their voices heard by big organisations. We want all young people with a learning disability to get the support they need.

Raising Your Game is funded by the Big Lottery Fund and will be delivered by Mencap in partnership with I CAN and Nacro. The project launched in 2009 with six pilots in Avon and Somerset, East Kent, Greater Manchester, Hertfordshire, Leeds and the West Midlands.

For more information visit: http://raisingyourgame.mencap.org.uk/

Stand by me - Crime where the victim is targeted because of their disability leaves victims afraid to engage in everyday activity. The crime can range from bullying and harassment, through assault, kidnap, rape and murder. A disability hate crime, as outlined in c146. Criminal Justice Act 2003, is a criminal offence motivated by hatred or prejudice towards a person either before or after the offence has occurred because of their actual or perceived disability. In all cases evidence shows that crimes motivated by hostility have a greater psychological impact on the victim than other sorts of crime.

Mencap has concerns regarding the response by the Police and other statutory agencies to recognise bullying and harassment as serious incidents. Such incidents are frequently treated as anti social behaviour or "low level" "hate incidents." Mencap is concerned this approach does not always recognise the severe impact on victims of such incidents or the evidential progression of harassment to more serious forms of targeted crime and violence. This has been a feature of several cases such as the Fiona Pilkington case (2007).

· In the three years ending March 2010, 1,200 defendants were prosecuted for disability hate crime. This compares to almost 50,000 for racist crimes. (CPS, October 2010, Hate crime and crimes against older people report.)

· 9 out of 10 people with a learning disability have experienced bullying/crime.

· 32% of people with learning disabilities experienced this on a daily or weekly basis (Mencap, 200, Living in Fear)

July 2011