Submission to the Ministry of Justice

The Ministry of Justice issued a call for evidence on neurodiversity in the criminal justice system. ND Labour submitted this on 15 January 2021.

SUBMISSION FROM NEURODIVERGENT LABOUR

Neurodivergent Labour (ND Labour) is a representative and campaigning organisation of neurodivergent Labour Party members. All members quoted in this submission are autistic, dyslexic or otherwise neurologically atypical.

We note that the questions you pose appear to address practitioners in the justice system, so it is not possible for us to answer them in the format given. However, as your call for evidence invites submissions from a wider cohort of groups, we are submitting this for your consideration.

BIAS IN THE JUSTICE SYSTEM 

We believe that the police, the courts, and prisons are systemically biased against neurodivergent people. Dyslexic, autistic and other neurodivergent people can find the justice system very difficult to navigate, and are often wrongly, harshly or unfairly judged. 

The case of Osime Brown, from arrest to conviction and sentence, highlights a series of systemic biases against neurodivergent and disabled people as well demonstrating the intersectionality of disability and race within the justice system. We call for a full-scale inquiry into this case and the experience of neurodivergent people within the justice system, in order for lessons to be learned and radical changes made.

We call for 

• further support for neurodivergent individuals within the justice system, firmly based on real-life evidence and exemplars, with genuine consultation with representative organisations of neurodivergent people
• neurodiversity training for all justice staff
• access for neurodivergent people to police officers, lawyers and court officials who have had a high level of this training
• the restoration of Legal Aid in full

ACCESSIBILITY FOR ALL 

Your questions focus on identifying neurodivergent people and providing appropriate adjustments for them. While we appreciate that this is very important, we believe that it is equally important to take measures to make the justice system as accessible as possible for all. Doing so will make the system more neurodiversity-friendly without individuals necessarily having to be identified. This is particularly important as many individuals are unaware of their neurodivergence, due to general lack of available information, and given that parents until recently experienced societal stigma and a lack of support when attempting to access such a diagnosis for their child. This stigma persists today and many are also ashamed to reveal their status and ask for support.

We therefore advocate systematic improvements to be applied across the justice system, regardless of whether a neurodivergent service user (or worker) has been identified. These improvements will include:

• All printed materials to be in dyslexia-friendly layout: https://cdn.bdadyslexia.org.uk/documents/Advice/style-guide/Dyslexia_Style_Guide_2018-final-1.pdf
• Interviews to be conducted in a straightforward, non-aggressive way, in plain language, without jargon or figures of speech, and with no questions designed to trap or incriminate the person being interviewed
• During interviews or testimony, adequate time given for the person to process and reply to questions, with no assumption of guilt based on how long they take to do this; irrelevant personal behaviours eg. pacing, rocking, avoiding eye contact, not to be interpreted as guilt
• All venues eg. courts, interview rooms, to have a benign sensory environment, including:
  • full-spectrum, adjustable lighting
  • no background noise
  • minimal smell
  • a choice of types of seating

INTERACTION WITH THE POLICE

While some neurodivergent people and their families have received useful support from the police, there have been several reported cases of police brutality against autistic people.

An ND Labour member writes, “I am autistic and both of my children are too. My youngest son can experience high levels of distress and on three separate occasions, police have been requested to ‘assist him’ (not by me). On each occasion I gave the police clear information regarding how best to communicate with him and on each occasion he was mistreated (in my opinion). Restraints were used (multiple adult officers), restraint and transfer under S136 (discharged as soon as psychiatrist assessed), and tasers were aimed but not deployed. Each situation warranted patience, calm and time for him to de-escalate naturally. The police and their approach ensured that each incident was lengthy. Their approach has caused my son additional anxiety and caused him to fear for his life. I think the handling by police of each situation was also affected by their assumptions regarding me as a single mother and autistic woman. Specifically that there was no adult male in the house to ‘control him’. This was directly communicated to me. My son was aged 11 and 12 when the above incidents occurred.”

We call on the justice system throughout its institutions to minimise the use of restraint techniques against prisoners, especially those who are disabled and / or neurodivergent.

Another ND Labour member writes, “When my (autistic) son was a teenager, he had frequent, violent meltdowns at home. When this took place out of office hours, our only option was to call the police, as no mental health workers were available. Mostly, the police conducted themselves appropriately, although sometimes they did not show the level of understanding we would wish. But my main concern is that the police are being brought into situations that would be much better dealt with by a trained mental health worker who can deescalate the situation.”

Another member wrote to ND Labour about occasions on which care staff who had not received adequate training calling the police to deal with difficult situations, leading to escalation of the incident.

We call for adequate resourcing of mental health and social care services so that appropriate, trained professionals can deal with situations rather than the police.

CRIMINALISATION OF NEURODIVERGENT BEHAVIOURS

Too often, neurodivergent people find ourselves ‘in trouble with the law’ as a result of behaviours directly related to our neurodivergence, even where these behaviours are not harmful.

An ND Labour member writes: “I do experience meltdowns and it is a concern to me that there is a possibility that if conditions combine I could find myself on the wrong side of the law with my actions misinterpreted.”

Another ND Labour member also noted that he “currently experiences meltdowns with simple anxiety triggers such as losing keys or a shop shutting before finishing the shopping list. These are exacerbated by the pressures and expectations of modern society which appear to sharpen the effects of his neurodivergence.”

Another member wrote to ND Labour about an incident where the police were called when she was distressed, but did not refer to available information about her neurodivergent condition and as a result, were unnecessarily physical and intimidating in their interaction with her, which led to arrest and detention.

We call for:

• an end to the criminalisation of non-harmful neurodivergent behaviours
• support rather than punishment if an intolerable environment causes a neurodivergent person to behave in a disruptive way, and understanding of what those intolerable environments look and feel like
• that police and justice officials consult available information about a person’s neurodivergent condition – including the person’s own reports – when interacting with them, and act appropriately.

EXPERIENCE IN CUSTODY

An ND Labour member writes, “I told the police that they could contact my mental health team, social services and my supportive family, but my mum was not contacted until 9pm, by which time I had spent five hours in police custody, and my mental health team and social services were not contacted until the following morning. Despite arriving at the custody suite at 4pm, I was not offered anything to eat until the following morning, and only offered a drink once the night shift started. An officer was verbally abusive to me, calling me a bitch, a nasty piece of work and mouthy, as well as claiming that I couldn’t be that badly brain damaged or I would be in hospital as opposed to supported living … The duty sergeant came to read a statement from her colleague about why I was there. When she mentioned that I had thrown my coffee, I explained that her colleague had grabbed my neck, and also pushed my head into the wall. The duty sergeant’s response was “I’d have done a lot worse if you’d thrown coffee at me,” which made me feel threatened. I was not read my legal rights and was not given the opportunity to speak to a family member or a solicitor until the following morning. I was also denied a mental health assessment until the following morning. Having been handcuffed upon arrest, my wrists were visibly hurt when my mum arrived the following day. I had also been deprived of sanitary products, and when I was given medication, I became suspicious that it was not my correct medication, despite being rushed to take it and therefore unable to inspect it, as I had been given only one tablet, rather than my usual four. The cell I was in did not have running water so that I could wash my hands after using the toilet. My alarm was disabled on several occasions.

The following morning, a different officer was on shift and dealt with me, as well as speaking to my mum (who came to act as my appropriate adult) and looking through the aforementioned reports about my brain damage. Having taken in this information, she didn’t see the need to interview me, but was asked to carry out an interview anyway, which I stayed silent throughout.”

We call for an inquiry into how neurodivergent people are treated while in custody, and standards to be enforced that prevent appalling treatment like that described above.”

WHEN NEURODIVERGENT PEOPLE ARE VICTIMS OF CRIME

There are concerns around the way that the police respond to reports of disability hate crime and that despite an increase in reported incidents, there has been a fall in the number of prosecutions. (https://www.leonardcheshire.org/…/reports-violent…) 

We recall the tragic case of Steven Simpson, a gay, autistic teenager who was killed at his own flatwarming party, which the Crown Prosecution Service (CPS) refused to recognise as a disability hate crime.

Therefore ND Labour calls for:

• specific disability hate crime training for all employees of the police and Crown Prosecution Service to ensure early identification of potential disability hate crime
• development of pro-active not reactive strategies on disability hate crime
• neurodiversity training for all employees of the CPS and police

REPORTING CRIME

An ND Labour member writes: “I get frustrated and this often leads to heated exchanges with police call centre staff or officers when I report matters. They often feel they are trivial, wasting police time, not realising the impact they have on people with autism. Neurodivergent people have difficulties with phone communication and it is amazing how much better the calls go when the call handler has experience of autism or has received awareness training. There is also the perspective issue of what constitutes an emergency and when to use the 999 number, not helped by the long queue times for the 101 number. The on-line crime reporting procedure going by the Hampshire police site are also poorly designed.”

ND Labour therefore calls for an overhaul of the systems available to victims (and witnesses) to report crime, to make them more accessible to neurodivergent people.

Another ND Labour member writes, “I reported a crime earlier this year. It was during the pandemic and I was assaulted by two girls on a train and bullied for being autistic, which was a horrible experience. At the end of the event I called the police, mostly to deter them from following me or to catch the girls as they got off the train. While nothing happened immediately, my crime got reported and it is still being followed up on now. My experience with the police has been pretty good: everyone on the phone has been very kind and understanding which definitely eased my anxiety, though having to accept lots of calls from unknown people wasn’t very good with my conditions.”

We would therefore recommend that when a neurodivergent person is a victim of crime, the method of communication is agreed with them at the outset. This may include there being a specified person who communicates with them, and using the method (eg. email, phone, letter, etc) that they prefer.

ATTENDING COURT

An ND Labour member writes, “Physically going to court was very confusing and anxiety-inducing and really upset me. The whole experience was unclear and very little guidance was given on what was happening.”

We are aware of many neurodivergent people with similar experiences. The case of Osime Brown highlights the barriers that a neurodivergent person may face in getting their case across in court. 

We emphasise that the measures mentioned in previous sections will assist with this. 

EXCESSIVE USE OF PRISON SENTENCES

The neurodivergent population in prisons is starkly disproportional to the general population. One piece of research shows that 9% of prison inmates meet the criteria for autism using autism quotient scale, 25% meet the ADHD diagnostic, and 9% meet screening criteria for learning difficulties [Young and Gonzalez et al, 2017] A study at one British prison identified 53% of prisoners as dyslexic. [Dyslexia Behind Bars, 2012]

Extensive research that demonstrates that custodial sentences do not reduce the incidence of violent offences. We believe that it is possible to keep society safe without locking vast sections of the population behind bars, and call for the use of custodial sentences to be minimised, and replaced as far as safe and practical with community-based rehabilitation of offenders.

Too many people are in custody who would be better off receiving support. We call for support and rehabilitation for offenders with ADHD and/or other neurodivergent conditions.

MEDIA REPORTING OF CRIME

An ND Labour member writes: “The news reporting of some incidents could lead to the labelling of neurodivergent people as a risk to the public. There was a van driven at pedestrians in Canada and the Tate Modern incident in the UK. In both cases it was highlighted the perpetrator was autistic, giving the impression this was a reason for the crime. Research seems to suggest autistic people are less likely to carry out such crimes.”

Obviously the press is responsible for the way it presents news. However, when the police or other sections of the justice system gives information to the media, it is important that it takes care over the language and emphasis it uses. Ask yourself: When was the last time you announced to the press that a neurotypical person had been charged with a violent crime?

EQUALITY LAW

Equality law requires public services not to discriminate against disabled people, including to make reasonable adjustments for us when we use this service, in this case, the justice system. As a public service, the justice system is also required by the Public Sector Equality Duty to proactively tackle inequality.

However, equality law also requires us to prove that we are disabled – in terms of things that we cannot do – in order to claim legal protection against discrimination and gain support. This adds an extra hurdle to neurodivergent people in enforcing our rights and objecting to discrimination.

We therefore propose that:

• neurodivergence be made a protected characteristic under the Equality Act, with the same legal protections as disability.
• the Public Sector Equality Duty is enforced and extended