Liaison and Diversion Service Autism and a Fair Criminal Justice Process May 2017 Speakers: Zoe Grace and Alida Dillon Outline 1. Where do we come from? 2. Who are we? 3. What do we do? 4. What is our purpose and aim? 6. Challenges 7. Mental disorder, learning disabilities, autism 8. The right to a fair trial 9. Special Measures and Reasonable Adjustments 10. Sentencing options and disposals
Questions any time WHERE DID WE COME FROM? Reed Review 1992: recommended the establishment of a liaison and diversion service for vulnerable suspects and defendants. The Bradley Report 2009 and 2015: recommended that all custody suites and criminal courts have access to liaison and diversion services. The Government: has made a commitment for all police custody suites and criminal courts in England to have liaison and diversion schemes in place by 2017/18. NHS England: commission the liaison and diversion services in England, using a common service specification which includes support to both children and adults who may have a wide range of mental health conditions, as well as learning disabilities, substance misuse and social vulnerabilities.
Who Are We? Dr Ahmed Zadeh, Consultant Psychiatrist Karen Weir, Operational Lead (AMHP) Zoe Grace Social Worker Jill Maddock RMN/RGN (Bail Hostel Link) Gillian Stanway, Social Worker AMHP
What do we do? We currently work from 7am to 5pm Monday to Friday in Luton and Kempston Custody; 9am to 5pm in Bedfordshire Magistrates Court (We have placed a bid for an extended service which will support a 7 day a week service in custody from 8am to 9pm, attend Saturday Magistrates Courts, have a base in Crown Court) We undertake a triage and assessment of adults referred to us or following a cell sweep (We hope to work with children shortly by supplementing a YOT out of hours service, and also see voluntary attendees) We try to see individuals at the earliest opportunity in the criminal justice system (ie in custody) But first contact is sometimes made in the Court Our Purpose
We accept referrals from a wide range of people, including police custody, court cells, solicitors, magistrates, district judges, family members, self-referrals We complete a triage and assessment and provide verbal feedback and written reports to custody and courts on the same day We inform the criminal justice system about the particular needs of individual defendants and, where appropriate, suggested sentencing options (eg Mental Health Treatment Requirement) Referrals are made to other relevant professionals and services such as community mental health services, GP registration, Housing, alcohol and substance misuse services, etc Our Aim To improve physical and mental health and wellbeing of alleged offenders Improve social integration
Support fair access to services Support a safe and fair criminal justice process and outcome Reduce the risk of re-offending or the risk of escalating offending behaviour Challenges It can be difficult to know if someone night have a mental health condition or if they are experiencing a degree of distress and discomfort due the their involvement in the criminal justice system There is still a lot of stigma associated with having a mental health condition, learning disability, autism; individuals might not want to tell anyone about it even when asked
What is Mental Disorder? The Mental Health Act 1983 (s.1) identifies a mental disorder as: "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind". This can include Learning Disabilities, Autism, Personality Disorder. Definition of Mentally Disordered Offender The Mental Health Act identifies mentally disordered offenders as: Those who come into contact with the Criminal Justice System because they have committed, or are suspected of committing, a criminal offence, and who may be acutely or
chronically mentally ill it also includes those in whom a degree of mental disturbance is recognised even though it may not be severe enough to bring it within the criteria laid down by the Mental Health Act 1983. Autism Statistics indicate there are around 700,000 people in the UK have autism; other data suggest 1 in every 100 people have autism or 2% of the population Together with their families this means that the lives of an estimated 2.8m people are affected by autism Not all people with autism have a diagnosis, so the number of people affected by autism is likely to be under-estimated It is recognised that people who have autism may have accompanying learning disabilities or mental health conditions The prevalence of people with autism who offend is not known; many
people with autism who come into the criminal justice system do not have a diagnosis of autism Learning Disability This is a lifelong condition and not an illness Around 2% of the population has a learning disability Someone can have mild, moderate or severe learning disabilities Most people with learning disabilities have greater health needs than the general population including epilepsy, physical and sensory disabilities, autism. It is estimated that between 5-10% of adults who offend have
learning disabilities This means that learning disabilities are more common in the offending population than in the general population Learning Disabilities and Autism in the Criminal Justice System The criminal justice system may be appropriate option for some people as it can serve as a deterrent and help understand consequences of actions. This route relies upon the various stages of the criminal justice system being able to meet the support needs of the person, to ensure they receive fair and equal treatment and have the same opportunities as other offenders. For some, the criminal justice system is not an appropriate option, ie if the persons condition means they cannot cope with the demands of the criminal justice system, then they should be assessed and diverted to a more appropriate setting that can address both care needs and offending behaviour.
The Liaison and Diversion Service looks to support and advise on a fair criminal justice outcome. COMMUNICATION AND AUTISM There are three main difficulties in relation to the criminal justice system: 1. Social Communication: individuals may avoid or struggle with verbal and non-verbal communication; they may be less able to read social cues and rules such as personal space; they may avoid eye contact or act strangely; they may struggle to understand the feelings and emotions of themselves and others; they may struggle as they may be less able to filter out background sensory information such as noise and light. 2. Social Interaction: individuals may take words and phrases literally; they can use formal and over-precise language; they may have poor listening skills and struggle to understand meaning behind tone and facial expression, leading to the individual appearing blunt or rude; they may cover their eyes or ears, may stare, look down or look away, and react to
stress with extreme anxiety. 3. Social Imagination: individuals may struggle to understand the consequences of their actions; they may struggle to understand a sequence of events and what might happen next; there may be a deficit of Theory of Mind, ie our ability to perceive the intentions of others, how they may think and feel and how that might relate to them, to put themselves in someone elses shoes. A Defendant with Autism 1. May struggle to understand what is being said or misinterpret what is said 2. Seem over-compliant 3. Be honest to the point of bluntness or rudeness 4. Seem overly anxious or agitated 5. Avoid eye contact or give too much eye contact 6. Provide far more detail than is required, or seem unable or unwilling to
move on from a certain aspect of that detail 7. Interpret what is said very literally 8. Not appear to understand the consequences of their actions or the emotional impact on others. Individuals who come to the attention of the police may resist arrest and become assaultative as their senses become overwhelmed; they may struggle to process emotions and feelings and be unable to tolerate being handcuffed or touched or manage a noisy and unfamiliar environment such as custody or a police van, etc. This can lead to further involvement in the criminal justice system, eg resisting arrest, criminal damage, assault, etc. The Right to a Fair Trial The right to a fair trial is enshrined in the criminal courts; it is protected by common law and Article 6 of the European Convention on Human Rights/the Human Rights Act 1998. There are five minimum rights:
1. To be informed properly and in detail of the nature and cause of the accusation against them 2. To have adequate time and facilities to prepare a defence 3. To defend themselves in person or through legal assistance of their own choosing, or be given legal assistance free if they do not have sufficient means to pay and when the interests of justice requires it 4. To examine, or to have examined, witnesses against them and to obtain the attendance and examination of witnesses on their behalf 5. To have free assistance of an interpreter if he or she cannot understand the language used in court. Case Law: SC v UK (2004) The European Court ruled in SC v UK (2004) that the right to have a fair trial had been breached because he had not had effective participation in the trial: effective participation in this context presupposes that the accused has a
broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witness and, if represented, to explain to his own lawyers his version of events, point out any statement with which he disagrees and make them aware of any facts which should be put forward in his defence. Fitness to Plead In police custody, it is the Health Care Professional and/or the Forensic Medical examiner who advise on fitness to plead and fitness to detain. Individuals who stand trial are required to be capable of contributing to the whole process of his or her trial, starting with entering a plea (British Psychological Society 2006:68).
The Pritchard criteria for determining fitness to plead dates back to 1836 and includes: 1. Capacity to plead with understanding 2. Ability to follow proceedings 3. Knowing that a juror can be challenged 4. Ability to question evidence 5. Ability to instruct counsel. Vulnerability, disability or communication difficulties do not necessarily mean that an individual is unfit to plead. The Law Commission consultation paper in 2010 reported the Pritchard Criteria set too high a threshold for finding the defendant unfit to plead, as well as being inconsistent in its application. This led to consideration of Reasonable Adjustments and Special Measures to support a fair criminal justice process. Communication in Court Courts are verbally mediated and the language in courts is often complex
with vocabulary that is not generally encountered outside of the court environment. Individuals with language and communication needs with have difficulties with communication and comprehension. They may find it hard to give a clear narrative account of what has happened, or properly sequence events, they may behave inappropriately during proceedings such as smiling or laughing when asked a question or given instructions. An inability to effectively participate may lead to feelings of frustration, anger or passive acceptance leading to a risk of impeding court proceedings and an unfair outcome. How Individuals May Present
Individuals might not understand words like remand, custody and bail Take longer to answer a questions or follow an instruction Respond inappropriately to questions or instructions Have difficulty engaging Say they understand but upon further assurance, they clearly dont understand Use words inappropriately
Respond inappropriately, eg gazing around the room, smiling, laughing, not paying attention Appear unduly anxious, distressed, angry, frustrated Use aggression to deflect hard conversations or to avoid admitting they do not understand Be disruptive Be quiet and appear compliant Appear withdrawn and say little in response to questions Supporting Communication and Comprehension in Court The Liaison and Diversion Service can assess language and communication needs and provide a report/advice to the judiciary. The Equality Act 2010 Reasonable Adjustments must be made for defendants with disabilities S.47 of the Police and Justice Act 2006 Special Measures can also be provided, including the use of an
Intermediary There is an inherent power for the judiciary to ensure support is made available to defendants according to their personal need, to help ensure their effective participation in court proceedings and to uphold their right to a fair trial. Judiciary and Court staff can consult guidance in the Consolidated Practice Guidance for the judiciary and court staff. What are Reasonable Adjustments? Vulnerability, disability or communication difficulties do not meant that the individual is unable to participate effectively in proceedings or enter a plea. The Equality Act 2010 requires public authorities, including courts, to seek to ensure that discrimination against disabled people does not occur. This can include Reasonable Adjustments to existing provisions in order to support effective participation in court proceedings. In court, Reasonable Adjustments can include:
o Accessible information, eg in an easy read format o Using the individuals name o Using clear language and short sentences to explain what will happen next o Avoiding jargon and legal terminology o Allowing extra thinking time so that information has time to be processed o Offering support to read and understand documents in court. Practice Directions The Court can also offer Practice Directions which can include: - Having the individual visit the courtroom beforehand - Ensure court documents are accessible, for example, in Easy Read format - Providing help to the individual to make notes of proceedings - Enlisting the support of the police to ensure the person is not exposed to intimidation, criticism or abuse - Having participants sitting at the same level - Ensuring the individual can hear properly
- Having members of family sit with the person or other supporting adults, being able to communicate with their legal representative - Having a timetable which accommodates the persons ability to concentrate, eg frequent and regular breaks - Removing of robes and wigs by the magistrates or judges - Restricting attendance in court - Having a live TV link. What are Special Measures? The courts have inherent powers to ensure the defendant has a fair trial. When all other efforts to support a fair trial have not been successful, the courts can use Special Measures (Coroners and Justice Act 2009) to appoint an Intermediary who can: - Assess the individuals communication skills - Help the individual follow court proceedings, the course of the trial and the case against him or her
- Assist the prosecutors and defence solicitors or barristers rephrase questions and help communicate their answers to the court The Police and Justice Act 2009 makes a Special Measures provision for vulnerable defendants to give oral evidence via a live television link. In Custody The Police and Criminal Evidence Act (PACE) Code C provides safeguards for mentally disordered suspects held in police custody. This includes requiring an Appropriate Adult to be present during interviews with the police They may be referred to see the Health Care Professional (physical health nurse) in custody They may been seen by the Forensic Medical Examiner who can comment on fitness to plead and fitness to detain The Liaison and Diversion Service may also see the individual. Following that meeting, we may provide a report to court requesting a specialist report to
inform the court of the individuals mental state and recommend a fair criminal justice outcome. In Court Unrepresented defendants can usually have access to a duty solicitor in the Magistrates Courts. The duty solicitor can give advice on the availability of legal advice and assistance, and assist the defendant in completing an application for Legal Aid. One reason for granting Legal Aid is that the accused person may be unable to understand the proceedings or to state his own cases. Section 11 of the Powers of the Criminal Courts (Sentencing) Act 2000 enables the court to adjourn or remand for medical reports for a defendant who has not yet been convicted but for whom there is a concern for his or her physical or mental condition. Section 35 of the Mental Health Act 1983 enables a Magistrates Court to remand a defendant to a specified and agreed hospital for assessment and to
enable a report to be prepared on his/her mental health condition. The offence must be considered punishable on conviction with imprisonment. Bail and Remand Liaison and Diversion Services are being used to assist in obtaining timely information about the individuals support needs, with a view to reducing the risk of a remand to prison as a place of safety. When a defendant is granted bail there are conditions attached such as residence at an approved premises (rather than prison). The Mental Health Act 1983 has a provision for remanding a mentally disordered defendant to hospital as an alternative to prison: - S.35 for a report which assesses the mental condition - S.36 (Crown Court) remanded for treatment pending trial or sentence. The shortage of bed availability on secure units means mentally disordered offenders can be remanded to prison in order to manage the risk to self and others. On these occasions, the Liaison and Diversion Service will refer to the
respective prison in-reach team to advise of presentation and risks. Sentencing When imposing a sentence, the courts must ensure the sentence is one of punishment, rehabilitation, reparation and public protection. Mental illness or disability can be a mitigating factor and sentencing should take into consideration the abilities and support needs of individual offenders. For example, if it is decided to issue a fine, the individual may need help with budgeting and managing their finances in order to pay the fine. Taking account of the needs of the offender avoids unreasonable or unrealistic expectations being imposed, eg offending behaviour programmes may need to be adapted to meet the learning needs of the offender. The courts can adjourn a case after conviction so that enquiries can be made to determine the most suitable method of dealing with the offender. This could involve obtaining a pre-sentence report from Probation, letters from employers or other relevant information; the courts can also adjourn for
medical reports to be obtained (which may lead to the imposition of S.37 or S.38). Pre-Sentence Report The court is required to obtain a Pre-Sentence Report (PSR) or a Specific Sentence Report before imposing a custodial or community sentence. This is to help determine if a community order and it requirements is a suitable sentence for a particular offender. The PSR should include: - an analysis of the offence - an assessment of the defendants risk to the community - the likelihood of re-offending - a proposal for sentencing. Probation may liaise with the Liaison and Diversion Service to request they assess and provide a report on mental state. The PSR can determine if further reports are required, such as a psychiatric
report. The psychiatric report may recommend the courts consider a Hospital Order such as S.37 and S.38 of the Mental Health Act. They may also recommend a Mental Health Treatment Requirement as a part of a Community Order; it may also recommend an Alcohol Treatment Requirement and Drug Rehabilitation Requirement. Disposals for Mentally Disordered Offenders If a defendant or offenders mental health condition seems moderate to severe, or an individual with a learning disability is displaying abnormally aggressive or seriously irresponsible behaviour, the court may need to consider whether the individual should be in hospital. This could be for a temporary admission for assessment and/or treatment, or it could be more long term. There are a number of sections of the Mental Health Act that can be used during court proceedings and as a sentencing option.
Disposals under the Mental Health Act Section 35: allows a Magistrates Court to remand a defendant to a specified hospital (with agreement of the hospital) to enable a report to be prepared on his/her mental condition. Section 36: is an interim hospital order which can be made at any time by the Crown Court to remand a defendant to hospital to see how they respond to treatment. Section 37: is a hospital order which permits the court to order the defendants admission to hospital if the mental disorder makes detention for medical treatment appropriate, and appropriate treatment is available. The order can be made by a Magistrates Court or the Crown Court following conviction for an imprisonable offence, or by a Magistrates Court without a conviction if the court is satisfied that the defendant committed the act/omission with which he/she was charged. A hospital order can be for up to six months duration in the first instance, but it can be renewed. Therefore unlike most criminal justice disposals, it is essentially indeterminate. Section 37: under a guardianship order, the defendant is placed under the responsibility of a local authority or a person approved by the local authority. Like a hospital order, this
can be made by a Magistrates Court or the Crown Court following conviction, or by a Magistrates Court without a conviction if the court is satisfied that the defendant committed the act/omission. Section 38: is an interim hospital order for assessment for response to treatment, which can be made by the Crown Court or a Magistrates Court after conviction, when the court needs more time to decide whether to impose a hospital order or to use an alternative disposal. Section 41: is a restriction order which can be imposed by the Crown Court alongside a hospital order, where this is deemed necessary by the court to protect the public from serious harm. The order places limits on the individuals discharge from hospital. Legislation The Autism Act 2009 is the first disability specific law in England It placed two duties on the Government to produce a strategy for adults with autism and statutory guidance to local authorities and health bodies on implementing the strategy (leading to Think Autism in 2014)
There is now an increased focus on the need for better awareness of autism in the criminal justice system, getting people diverted to diagnosis and to the right treatment, and reducing the risk of further offending behaviour. Local authorities have legal duties under the Care Act They must assess the care and support needs of adults (including those with autism) who may have such needs in prisons or other forms of detention in their local area, and meet those needs which are eligible They must work with prisons and other local authorities to ensure that individuals in custody with care and support needs have continuity of care when moving to another custodial setting or where they are being released from prison and back into the community. Reference list Bradley, K.(2009) Lord Bradleys review of people with mental health problems or learning disabilities in the criminal justice system, London, Department of Health.
The Bradley Report five years on (Centre for Mental Health 2014) NHS England (2015)Liaison and Diversion Standard Service Specification 2015 London, NHS England. Mental Health Act 1983 Code of Practice TSO, Norwich 2015 The Mental Health Act Manual Richard M Jones (2014), Sweet and Maxwell Positive Practice Positive Outcomes (DoH 2011)
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