Response to consultation: ‘Punishment and Reform: effective communitysentences’As a group that includes family carers and people who work with people with learningdisabilities we are very pleased to have an opportunity to comment on these proposals.OverviewResearch shows that:• 23% of young offenders have very low IQs of less than 70 (Harrington and Bailey, 2005)• 60% have communication difficulties that will affect their ability to understand certain words and to express themselves (Bryan, 2004)• 20-30% of all offenders have learning disabilities or difficulties that impair their ability to cope with the criminal justice system (Loucks, 2007).There is growing evidence of an increasing number of prisoners with fetal alcoholspectrum disorders – particularly young people, who are at great risk of becoming‘revolving door’ prisoners (Meier, 2008; Carpenter, 2010). Diversity within the populationof offenders with learning disabilities (for example, the different risks to and experiences ofwomen, ethnic minorities, older people and people with different sexual identities) and theimpact of multiple disadvantage is under-researched.The challenges faced by prisoners with learning disabilities were thoroughly described bythe Prison Reform Trust’s ‘No One Knows’ project (Talbot, 2008). Smith’s work in Leeds(2011) showed that it was common for offenders with learning disabilities to have receivedmultiple short sentences, without adequate support or clear pathways to tackle housing,employment, relationship and behavioural problems.Our own work with criminal justice agencies shows that some key systemic problemsremain, notably:• failure to identify offenders who may have learning disabilities: the Learning Disability Screening Questionnaire (LDSQ) is being rolled out across the adult prison estate following the recent pilot conducted by the Department of Health, but reliable identification is required much earlier in the system (e.g. in police custody) to enable earlier intervention. No such tool has yet been agreed for the youth justice system (although the authors of the LDSQ have recently published an equivalent for young people – CAIDS-Q)• failure to implement ‘reasonable adjustments’ to processes, policies and systems (under the Equality Act) consistently to reduce disability discrimination at all stages, from initial contacts with police through to resettlement from prison. For example, a reasonable adjustment for a prisoner who cannot read because of his learning disability would be to offer alternative ways of requesting a health appointment. There are good examples, but they are not systemic• linked to this, a failure to think through and deliver the types of support required to enable offenders with learning disabilities to address their offending behaviours and build the resources (accommodation, employment, relationships) that are known to reduce the likelihood of re-offending. The support should include access to treatment programmes and offending behaviour programmes that have been adapted appropriately, together with tailored support from services that specialise in working with offenders – backed up by specialist services such as community learning disability teams.
Prisoners with learning disabilities are at increased risk of mental health problemscompared to the rest of the prison population: for example, the Prison Reform Trustestimated rates of clinically significant anxiety and depression as being at least twice ashigh (Talbot, 2008). So attention to any mental ill health is undoubtedly required. However,conceptualising their sentencing options purely in terms of treating mental ill health isinadequate. People with learning disabilities typically have difficulties with cognitive andsocial skills that require support rather than treatment. For example, difficulties withunderstanding time, questions and instructions are all likely to jeopardise a person’s abilityto comply with the requirements of a community sentence. Extra support will be requiredto ensure that offenders with learning disabilities are not unfairly excluded from communityoptions. As it is common for people with learning disabilities to have mental healthproblems (see above) and/or autistic spectrum disorders, such support needs to becarefully tailored to each individual’s needs.Tough and effective punishmentWe welcome the proposed focus on developing the use of community sentencing – shortprison sentences do not have a good track record in terms of reducing re-offending. Wedo not want offenders with learning disabilities to be excluded from punishment (wherethey have capacity to understand and participate effectively in the judicial process).Neither do we want people with learning disabilities to be diverted into health services as a‘default’ option. Clearly this may be appropriate for someone who requires treatment for amental health problem, but it should not simply be an alternative form of custody in whicha person may in fact serve a longer sentence.It will be vital to success that courts have confidence in community options – they must besatisfied that the implications of an offender’s learning disability will be understood andappropriate ‘reasonable adjustments’ offered. Courts will require good systems to identifyoffenders with learning disabilities, understand the implications of their disabilities andstructure effective sentence requirements with appropriate support – this will require anintegrated approach to offender management. For example, extra support may berequired to ensure that the offender:• has understood the offence they have committed• understands what they must or must not do to comply• is in fact able to comply (e.g. is able to tell the time, find their way to a specified destination and carry out specified activities)• understands the consequences of breach.A report from the Revolving Doors Agency (2012), as part of the Big Diversion Project inthe North East, noted there was a risk of sentences being imposed with which the offendercould not comply.In addition those who are supporting the offender (e.g. family carers, social care staff)need to understand the terms of the sentence and the consequences of breach: we haveheard of examples where this was not the case, with the result that the offender wasdiscouraged from complying. Extra support may also be needed to help an offender withlearning disabilities to avoid continued exploitation by so-called ‘mates’ where this hasbeen a factor in their offending behaviour.This will require co-operation between criminal justice agencies and health and social careservices locally to ensure that community sentencing is developed in tandem with theavailability of support and access to appropriate behaviour programmes and treatmentoptions. One of us is working with the National Offender Management Service and the
Department of Health on a project to improve access to one of the offending behaviourprogrammes, to make it inclusive of offenders with learning disabilities. We believe thereis scope to apply this type of adaptation more widely – there is currently a shortage ofstructured programmes aimed at this group. Services that are geared up to working withoffenders in community settings are not necessarily skilled in working with people withlearning disabilities and making the types of reasonable adjustment required; learningdisability services are not necessarily skilled at working with offenders. Joint work isneeded, especially as not all offenders with learning disabilities will meet the eligibilitycriteria for specialist learning disability services.We strongly agree with the proposal to tailor the terms of community orders to the specificcircumstances of the offender. We note that it may be possible to make exceptions foroffenders who may not be capable of certain aspects of a sentence, but would stronglyencourage the approach of offering adequate support to increase their capability ratherthan, for example, deciding that a person with learning disabilities is unable to work.We recognise that options such as Intensive Community Punishment and the types ofsupport and reasonable adjustments we have advocated can be resource intensive –however, this needs to be compared with the waste of resource represented by ‘revolvingdoor’ short custodial sentences. If an ‘average’ year in prison costs around £40,000, andrepeated costs from other elements of the pathway are added (police and courts), aconsiderable amount of money could be spent on community based alternatives – tobetter effect.Reparation and restorationRestorative justiceWe think that restorative justice approaches have much to offer offenders with learningdisabilities and could play a very valuable role in enabling so-called ‘low level’ offenders tounderstand the impact of their actions and address their offending behaviour. We believemany offenders with learning disabilities would find the experience of restorative justiceprocesses a more powerful learning experience (more personal, understandable andconcrete) than more traditional forms of punishment. Again, they will need support withthis – in understanding and complying with what is required and in learning from theexperience so as to reduce the likelihood of re-offending. Guidance and training will needto be explicit about ways of supporting offenders with learning disabilities to take part, sothat their victims have an equal chance of benefiting.In addition, if participation in pre-sentence restorative justice is to be taken into account insentencing (implying that failure to participate could result in a more punitive sentence),failure to support offenders with learning disabilities to participate would be discriminatory.VictimsAs noted above, restorative justice should be equally available to victims of offenders withlearning disabilities and this implies that such offenders should be supported toparticipate.We welcome the increased focus on Victim Personal Statements. People with learningdisabilities report very high incidence of bullying, harassment and hate crime. The impactof such behaviour on individuals and their families is often under-estimated (sometimeswith fatal results, as in the case of Fiona Pilkington and her disabled daughter). Theopportunity to make a statement that will be taken into account in determining the
seriousness of an offence will be helpful. The recent ‘Loneliness + Cruelty’ report fromLemos & Crane and the Foundation for People with Learning Disabilities (2012) showedthat over 90% of the people interviewed had experienced harassment, abuse or relatedcrime. “Many want reparation: for the cruelty to stop and for perpetrators to understandthe impact of their behaviour and to apologise for the hurt caused”. As in other aspects ofcontact with the criminal justice system, victims with learning disabilities will require goodsupport to make use of this opportunity.Rehabilitation and reformWe welcome specific attention to the needs of women offenders, recognising that manyhave multiple and complex problems including mental health problems, substance misuse,and histories of abuse. We argue that similar attention needs to be paid to offenders withlearning disabilities, who are equally likely to have a similar complex mix of issues, inorder to ensure that they are included equitably in proposals for alternatives to custody.We strongly agree that offenders with learning disabilities need a robust plan and aconsistent relationship with a supervisor. A colleague describes this as a ‘watchful eye’ – arelationship that incorporates both support (to understand what is required and to comply)and monitoring/controlling. Many offenders with learning disabilities receive shortsentences and do not therefore benefit from probation supervision on release; anapproach like this could improve their chances of not re-offending. We note the recentreport from HMI Probation (2012), which commented that electronic tagging was not usedstrategically enough as one element in robust offender management.‘Circles of support’ offer a useful model. A circle is a group of people (usually unpaid, butpossibly including paid workers) who offer support to a person to help them achieve theirgoals. Purposeful creation of such circles may be particularly important for people withchaotic or broken relationships, and for young people who have been in the care system.Research has demonstrated the value of the supported employment model, which focuseson getting people into work and supporting them in it (e.g. via job coaches) rather thanperpetuating the ‘revolving door’ of training that never leads to employment. Many peoplewith learning disabilities have difficulty with transferring learning from one setting intoanother, which makes the supported employment approach particularly appropriate. Itsvalue has also been demonstrated clearly for people with mental health problems.However, securing these potential benefits will require investment in support to ensurethat offenders with learning disabilities are not excluded, nor set up to fail. Work Choiceand the Work Programme will need to take this learning into account if they are to providesuccessfully for offenders with learning disabilities (including young offenders).Housing and health care are also key components of the systemic approach required toensure that community alternatives to custody are effective. Again, we believe there is aneed to bring together those with expertise in working with offenders and those withexpertise in working with people with learning disabilities. Mental health, alcohol and drugtreatment programmes need to make reasonable adjustments to include people withlearning disabilities. For example, practice guidance is available on making cognitivebehavioural therapy accessible to people with learning disabilities, but this is still notwidely available.Although payment by results is not a consultation point in the paper, we would like to pointout that there is a risk that roll-out of payment by results approaches to a wider range of
services could result in providers ‘cherry picking’ and avoiding offenders who need moresupport. Clearly this could be discriminatory and we hope that development of suchschemes will ensure that offenders with learning disabilities are not disadvantaged.ConclusionA recent study showed (Wheeler et al., 2012) that key factors distinguishing offendersfrom non-offenders in a population of people with learning disabilities were:• broken social and emotional relationships and victimisation• lack of occupation or structured activities• isolation.We believe that community sentencing and restorative justice have great potential to beeffective for people with learning disabilities. It will require investment to ensure they canwork for this population – attending to the factors listed above and to the reasonableadjustments likely to be required - but this is still likely to be cheaper than recurrent prisonsentences.Alison Giraud-Saunders22.6.12On behalf of a group of family carers and organisations and individuals working withpeople with learning disabilities:Dave Barras, Chief Executive, Positive Support in Tees CICSamantha Clark, Chief Executive, Inclusion NorthJanet Cobb, Facilitator, UK Forensic & Learning Disabilities NetworkAlison Giraud-Saunders, independent consultantRob Greig, Chief Executive, NDTiBill Love, NDTiRachel Mason, family carerFiona Ritchie, Associate Director, Worcestershire Health & Care NHS TrustSteve Scown, Chief Executive, DimensionsSteve Strong, NDTiSue Turner, NDTi/Improving Health & LivesCally Ward, family carerContact details for correspondence:Alison Giraud-SaundersE: firstname.lastname@example.orgM: 07721 843290