People with learning disabilities in the CJS Glynis Murphy Tizard Centre, Kent University [email protected] Outline Prevalence of ‘offending’ in pwld Vulnerabilities in the CJS with regard to understanding rights, being interviewed, making decisions, going to court Recent policy – Bradley et seq Assessment, treatment and support Conclusions Eugenics era (1900 on) Massive anxiety here and in USA that ‘unfit’ people were in some way ‘polluting the stock’ In UK led to institutions; in USA to involuntary sterilisation laws Publicity around e.g. Kallikak family (Goddard, 1912) Terman (1916): ‘No investigator denies the fearful role played by mental deficiency in …crime, vice & delinquency… not all criminals are feeble-minded but all feeble-minded are at least potential criminals’ Early studies Woodward 1955: Reviewed over 300 studies of crime and learning disabilities (1910 - 1950 in USA Before 1920: On average 51% of convicted criminals reported to have learning disabilities; by 1928: this was 20%; by 1950 this was 4% - why? Walker & McCabe: 90% sample of all hospital orders made by courts under MHA 1959 in 1 year (‘63-’64) in England Of 969 men: one third were detained under ‘subnormality’ & those with LD (1/3) had committed 2/3s of the sex offences and one half of the arson offences – so we can conclude??? Cohort studies of prevalence Farrington & West studies: 411 boys born in 1953. ‘Working class’, S. London. Followed up for 32 years. Over a third convicted by 32 yrs. Convictions related to cognitive ability, school achievement, large families, poor parenting, etc Hodgins 1992 & 1996: Follow-up of 2 cohorts (15,117 born 1953 in Sweden & >324,000 in Denmark) showed risk ratios for convictions : 3 to 7 times higher for men & 4 to 6 times higher for women with LD. Both defined ID by service use – special schools in Sweden & hospital admissions in Denmark. So we conclude???? Community-based studies McBrien et al. (2003) looked at community- based population in city (200k population ) Total on LD register n=1326 (all the people known to services with LD) Found that: 3% had had a CJS conviction 9% had had a CJS contact as suspect 26% had CB of offending type How does this compare to the general population? Police station stage & court stage Cambridge study (Lyall et al ’95) 251 people screened at custody stage; 4% had attended special schools About half went to Court London study (Gudjonsson et al., 93) 156 people screened at custody stage;15% needed an Appropriate Adult (4% got one); 9% had intellectual disabilities (short IQ test used) Court studies Few studies in UK, apart from one in Berkshire (found no over-representation) In Australia, Hayes found 14% -21% acc to area Prison & probation in UK Prison: Murphy et al (1995): - Screened 157 men S London prison - 33 men said they had LD or had been to special school - On testing no one had LD (but lots in borderline range) Similar results from Birmingham et al 96 (screened 569 men one prison) & Brooke et al, 96 (screened 750 men on remand in 13 prisons/YOIs) Recently Mottram: 7% with LD in NW prisons in UK (HASI) & Murphy et al (in press) found 7% of the 3000 men admitted to 3 English prisons screened positive for LD on the LDSQ Probation: Murphy & Mason: about 6% of people on probation in Kent had LD ( 2 studies) Conclusions so far People with LD do appear in the CJS They may be over-represented, at least in some countries, at some stages in CJS In UK: - in community: about 3% of pwld have conviction; 9% have had contact with CJS as suspects - of those questioned by police as suspects 4-9% have an LD - very low numbers in prisons we think (but need care how measured) - very low numbers in hospitals, detained under MHA - about 6% of those on probation have an LD Who are the suspects? Usually people with mild or moderate LD (actus reus; mens rea) Usually young men (around 15-20% women) Often have mental health needs Often have autism spectrum disorders Often from very deprived and chaotic family backgrounds May not be in touch with services for pwLD Tend to be ‘bounced’ from LD to MH to forensic services & back Poor services: often restrictive (do we need govmt push to develop these?) Overlap of LD, mental health needs, CB and offending People with mental health needs People with learning disabilities Offending CB Vulnerability of suspects with LD in the CJS Inadequate understanding of caution and legal rights Susceptibility to acquiescence, compliance, interrogative suggestibility and confabulation Lack of knowledge relevant to decision- making in police interviews - we will look at each of these in more detail Understanding of rights at police station (Clare & Gudjonsson) ON ARREST: Caution Advised of right to legal advice, person informed, consult Codes of Practice Given Notice to Detained Persons UNDERSTANDING THE “NOTICE”: General population – understood 68% of sentences Learning disabled – understood 11% of sentences Understanding of rights at police station (cont’d) UNDERSTANDING THE (OLD) CAUTION: 80% of general population understood 8% of people with learning disabilities understood UNDERSTANDING RIGHT TO SOLICITOR: 53% of general population understood 17% of people with learning disabilities understood Current caution (introduced 1995 under CJPOA, 1994) ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say will be given in evidence’ Clare & Gudjonsson found that even some policemen don’t understand this! Problems on interview (Clare & Gudjonsson1995) People with intellectual disabilities on questioning (compared to people without disabilities) are: nearly 4 times as likely to acquiesce (answer questions in the affirmative regardless of content) nearly twice as likely to be suggestible (be led by questions and shift answers when pressed) twice as likely to confabulate (fabricate or distort material to fill in gaps in memory Decision-making in police station (Clare & Gudjonsson, 95) Film of false confession to murder showed: General population believed - Man would go to prison (95%) - would not be believed if retracted confession - needed legal advice (90%) Learning disabled group - man would go home (38% - may be believed if he retracted confession (25%) - would not need legal advice (48%) PACE - Police Code C – what is in the revised Codes of Practice (2014) ‘If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, or mentally incapable of understanding the significance of questions or their replies that person shall be treated as mentally disordered or otherwise mentally vulnerable for the purposes of this Code’. Latest Code of Practice also says: ‘An ‘easy read’ illustrated version (of Notice) should also be provided if available’. Tasks of ‘Appropriate Adult’ in an interview • To advise the person being interviewed • To observe that the interview is being conducted properly and fairly • To facilitate communication with the person being interviewed Codes of Practice C (1995) – and v similar in revised Code 2014 AA studies: Bean & Nemitz (1994) Looked at 20,000 custody records across East Midlands area and interviews with custody officers. AA called or used for 38 adult suspects who were thought to be ‘mentally disordered’ (mental health problems or learning disabilities) - would expect 1400 (7% of suspects) Further 1% identified as ‘mentally disordered’ but did not get AA Long waiting times for AA: 1-18 hours (average 3 hours) AA studies Bean & Nemitz (contd): Police often seemed unclear about role of AA for adults – thought to be only ‘welfare’. Rights apparently rarely given again in presence of AA. Medford et al (2000): London study - showed still AA under-provided (less than 50%) Pearse & Gudjonsson (1996): most AAs don’t speak! Court: Risks to people with LD in court in CJS Not being represented by a lawyer (30% in Hayes, 1993) Not being identified as having an LD (eg 78% of ID suspects in Brown & Courtless, 1971; 53% in McAfee & Gural, 1988) Not understanding court language, eg. not even understanding the phrase ‘not guilty’ (22% in Smith, 1993 ) Not surviving cross examination (Kebbell et al., 2001) More risks to people with LD in CJS On probation - Not understanding contracts/warning letters (Mason, ‘00) - Not being able to enrol on treatment programmes In prison - Often not eligible for specialist / treatment programmes (Brown & Courtless, 1971; Hall, 1992; Linhorst et al, 2002; Talbot 2008) - Risk of abuse/bullying (Ellis & Luckasson, ’85; Talbot 2008) - Risk of execution in some countries – in US the Atkins decision means people with LD should not be executed but……..in Texas? Risks to people with LD in the CJS in hospital Usually under court order (MHA in UK; USA usually capacity to stand trial; in other countries ‘secure care’ eg Australia, NZ, Norway) Risk of being detained for very lengthy periods (McGarry, 1971, in USA; Grubin, 1991, in UK; Dell & Robertson) Risk of being subject to abusive practices Difficulty of proving they are no longer high risk Not receiving treatment relevant to their difficulties Being very long way from home & relatives The No One Knows programme (Talbot 2008) Big research programme based at Prison Reform Trust Looked at what prison staff knew about prisoners with learning disabilities & learning difficulties (v little) & what was happening in