Criminal Justice System: Adults with Autism

Barry Sheerman Excerpts

Tuesday 30th January 2018 Westminster Hall

[Kevin Brennan (Cardiff West) (Lab)]

I beg to move,

That this House has considered the treatment of adults with autism by the criminal justice system.

It is a great pleasure to serve under your chairmanship, Sir Edward. I am pleased to have secured this debate on a crucial topic that affects the lives of many adults with autism and the families who support them. The debate is about adults with autism and what happens when they come into contact with the criminal justice system.

It is understandable that a lot of focus in this place and elsewhere is given to children with autism—that is right given the need for educational and other support for them, their parents and their families—but autism does not cease to be an issue when someone turns 18 and becomes an adult. Many of the services that might be available for children with autism fall away when they become adults. Parents get older and it is often more difficult for them to cope. Adults with autism face a complex world outside of full-time education where the behaviours and traits associated with autism are often poorly understood, misinterpreted or even sometimes mistaken for criminality. I will say some more about that in due course.

First, I acknowledge the work of the all-party parliamentary group on autism, which has been supported by the National Autistic Society and many other campaigners. That work has resulted in recent positive developments in the criminal justice system for adults with autism. I congratulate the APPG on successfully securing the support of the former prisons Minister, the hon. Member for South West Bedfordshire (Andrew Selous). He wrote to all prisons in England and Wales encouraging them to undertake autism accreditation. Pleasingly, one prison has already been accredited. According to the APPG website, seven more are undergoing that process, but, with well over 100 prisons in England and Wales, there is a long way to go in making further progress.

Recent cases featured in the press, such as that of a young man called Marcus Potter, show that the use of the prison system can exacerbate the condition of those with autism, rather than act in the public interest. The system can cause deep distress and problems. In this case, a young man with an autism diagnosis from the age of three got into trouble for his compulsive filming of the local police. The judge decided to release him from prison, opting for a care plan and probation instead. The judge concluded:

“The worst place for you is where you are”.

There is a lot of work to be done in relation to adults with autism and prisons. There may be Members who want to say something about that in this debate.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Just on that point, I have the privilege of chairing the Westminster Commission on Autism. I do not know whether my hon. Friend saw its recent report on the barriers to healthcare. All these institutions, whether they are in criminal justice, health or whatever, have to give special consideration to people on the autism spectrum. Those environments can be very hostile because of the nature of that challenge.

[Kevin Brennan]

I congratulate my hon. Friend on the work he is doing on that commission and the work he has done around health. One of the complexities with such a debate on autism relates to the Department that should be answering. I do not think I am giving away any state secrets by saying that I received a phone call from the Government asking, “Which Department do you think should reply to your debate?” I do not blame the Government for that—having been a Minister, I understand how Government works—but one of the key problems is the difficulty in ensuring that services are joined up across the Department of Health and Social Care, the Ministry of Justice, the Attorney General’s Office, the Home Office, the Department for Work and Pensions and the Department for Education. All those things play into each other. Even though today’s debate is specifically about the criminal justice system, it is inevitable that other issues play into it.

[Kevin Brennan]

I think that is an excellent suggestion. In my experience in government, to get Departments working together and to make progress we have to bring Ministers together, not just officials. Those Ministers have to understand and be passionately committed to making the change. It is possible to make significant change simply by ensuring that Ministers are brought together. When I was a Minister, I attempted a joint project with another Minister, and the only way we could get it done was by ensuring that we met regularly. We told our officials, “You will do this, even though it is not currently in the Department’s culture. We are both telling you to do it, and you will work together to do it.” The hon. Lady’s suggestion is excellent, and I hope that the Minister will take it on board. Even if he cannot commit to doing it this afternoon, I hope he will commit to taking it away and discussing it with his colleagues.

[Mr Sheerman]

Is it not the case that all the institutions have to provide training on people on the autism spectrum? I do not know whether the hon. Gentleman heard reference in the debate last week to Alex Henry. He is an autistic young man. A boy who was with him stabbed someone, and Alex Henry is now in prison for 19 years. He was an easily led young man on the autism spectrum. People on the autism spectrum tend to be quite easily led and are very impressionable. The criminal justice system should be sensitive to the needs of autistic people.

[Kevin Brennan]

I agree with my hon. Friend. I will come on to talk a little about ensuring that joined-up understanding. The criminal justice system needs to be able to identify and understand the vulnerabilities of people with autism when they come into contact with the criminal justice system.

I was talking about a young man who had been sent to prison. I pointed out that there is a lot of work to be done on adults with autism and prisons. I will not talk further about that today—other Members may want to speak about it—because I want to focus on the earlier stages of the criminal justice system and in particular issues relating to safeguarding and arrest. People with autism can often exhibit specific behaviours that others categorise as unusual, such as stimming, which is a repetitive physical movement that helps reinstate a sense of calm. It is a particular trait of people with autism, and it is rarely understood by others. Indeed, most people I speak to have never even heard of stimming and do not know what it is.

Behaviours that are seen to be unusual can sometimes be misinterpreted as antisocial or, even worse, criminal. Indeed, it has been suggested that those who are the highest functioning on the autism spectrum can often bear the brunt of such misinterpretations as their condition is not otherwise obviously visible. They are not always extended the benefit of the doubt. I hope the Minister will outline his views and what is being done to try to prevent people with autism from being mistakenly criminalised by that misinterpretation of that particular trait. What steps are being taken to ensure that the behaviour of those on the autistic spectrum is not misinterpreted by police and the judiciary?

When adults on the autistic spectrum come under suspicion of criminal behaviour, safeguarding becomes crucial. I want to refer to the case of a constituent of mine, who wishes to remain anonymous for obvious reasons. The safeguards in the criminal justice system did not protect him as they should have under current policy and practice. Owing to his understandable desire not to be named publicly, I will not go too far into the detailed circumstances that led to the arrest of my constituent on two different occasions. I know that Ministers are aware of the details of the case through previous meetings and correspondence. Suffice it to say that his stimming was misinterpreted while travelling in crowded conditions on public transport, and that is what led to his arrest.

My constituent declared his autism before he was arrested, which should have triggered a different pathway from a normal arrest, but he was not diverted or safeguarded at the point of contact as he should have been. On the first occasion, no appropriate adult was called, his parents were not contacted as they should have been, and he was not assessed as fit for interview. A caution was issued against him, which was later quashed due to those lapses in procedure. Unfortunately, he was arrested again three years later, and his vulnerability and protected characteristics were not properly recognised by the police or the health professional who assessed him. In other words, the reasonable adjustments that are required by law were not made during detention or subsequently, and that case was dropped without charge.

In January 2009, Lord Bradley, who is of course a former Member of this House and pays very close attention to these kinds of proceedings, published his review of people with mental health problems or learning disabilities in the criminal justice system. His report set out a policy of liaison and diversion for people with these kinds of issues away from police custody, for assessment by clinicians prior to arrest and custody. I want to be perfectly clear that diversion does not mean not having to answer the allegations; it means that behaviours associated with autism are properly contextualised, that both the accused and the evidence are properly protected, and that an appropriate adult is present. Lord Bradley specified in his report:

“Studies into the use of Appropriate Adults have concluded that provision of the Appropriate Adult is very inconsistent. Firstly, the needs of a defendant have to be identified, which are often missed. Even when a need for an Appropriate Adult is identified there is currently a shortage of individuals who can perform the role effectively.”

My contention is that if Lord Bradley’s recommendations had been properly followed when my constituent was arrested in 2011 and 2014, the trauma that he and his family suffered could have been avoided. My constituents are not the only ones who have had such misunderstandings with the police. The National Autistic Society has said:

“our charity still hears regularly from autistic people and families who say that responding police did not understand autism and did not respond appropriately. This causes unnecessary distress to the individual and to police attending.”

[Mr Sheerman]

Will my hon. Friend give way?

[Kevin Brennan]

I will in one second. In driving home my point—before my hon. Friend helps me to do so—I want to ask the Minister to go back and look at Lord Bradley’s proposals and ensure that they are being fully implemented across the system. I will now, with great pleasure, give way to my hon. Friend.

[Mr Sheerman]

My hon. Friend is making such a good speech, which has stimulated me to remind him that the court system very often derides professional opinion about the facts of autism. Professor Baron-Cohen of the University of Cambridge is probably the best-known expert on autism in the country. In the recent case of Lauri Love, who is in danger of being sent to the United States where he will almost certainly be in danger of committing suicide, the professor’s evidence was dismissed out of hand. In fact, he was attacked as an expert when he was in court. Does my hon. Friend agree that professionals who know about autism have been disregarded in a number of cases?

[Kevin Brennan]

My hon. Friend describes a very distressing phenomenon. Professor Baron-Cohen is one of the world’s experts in this area, and the idea that his evidence would not be taken seriously in an instance such as the one that he describes is obviously highly concerning. I hope that the Minister will consider that, and whether legislation might be required to ensure that the Lord Bradley’s recommendations are followed across the system.

The issues that I am raising today were borne out in a study by the University of Bath, published in 2016. A survey of almost 400 police officers found that only 42% of officers—so a minority of officers—were satisfied with how they had worked with individuals on the autism spectrum. Some 37% of officers had received specific training on how to work with individuals on the autism spectrum, but many found that even that training was not tailored to their specific roles within the police force. In addition, organisation and time constraints were cited as specific barriers, so what assessment has the Minister made of the effects of the continuing cuts to police budgets on the training that is offered to police officers and staff working with adults on the autistic spectrum, and what will he do following the debate to ensure that safeguarding policies are properly put into action across the board?

The National Autistic Society has a free resource aimed at police officers and staff, which offers a guide to working with people on the autistic spectrum. I hope that the Minister will be able to join me in publicly encouraging police services in Wales to use that resource, which is appropriate for Scotland and Northern Ireland as well, and to seriously consider its guidance.

As I said, the allegations against my constituent resulted in a caution that was quashed and in the second instance they were dropped. However, to his great distress, those erroneous allegations remain on police databases. At the time of his arrest, my constituent was living and working across the border in England, not in Cardiff, but the discovery that the allegations against him were kept on police databases, despite the police having acknowledged that they were inaccurate, caused him very severe psychiatric harm, as was confirmed by two separate psychiatric reports. As a result, my constituent ended up giving up his job, flat and independence to return home and live with his parents in Cardiff. We cannot want to see such an outcome for an adult with autism who has established independence and a productive role in society in the workplace. It shows the life-changing effects that a lack of safeguarding can end up having.

The allegations remain on police records. The chief executive of the relevant NHS trust invited both the police and the Independent Police Complaints Commission to send representatives to two meetings to discuss how they could help to protect my constituent from further psychiatric harm. I am sad to say that they did not attend either meeting. Even though extensive and complex complaints have been made to the relevant agencies, those made to the police and the Independent Police Complaints Commission remain unresolved. My constituent and his family have grave concerns about the governance and compliance with required standards demonstrated in the handling of their complaints.

There is no evidence that the police service involved recognised my constituent’s continuing vulnerability, or put in place plans to respond appropriately and safely in the event of further contact with him. In my view, therefore, they neglected to protect him from future risk of harm. Before the first incident, and subsequently, he was studying for a degree and travelling daily on public transport. Before the second incident, he was working full time, but his experiences and, in particular, the failure to remove or amend the allegations resulted, as was predicted by the senior medical consultants who assessed him, in serious impairment of his health and development, with a significant increase in his anxiety and impact on his functioning. As a result, he lost his employment, moved back home and is no longer able to travel independently on public transport.

In pursuing his case, my constituent and his parents have unearthed many worrying inconsistencies. For example, he was originally told by the police that the case against him was not pursued on public interest grounds, whereas the Solicitor General later confirmed that it had been dropped through a lack of evidence. Those are two very different reasons not to prosecute.

Hon. Members will recall the Commons debate on 30 November last year on mental health and suicide in the autism community, in which reference was made to recent research findings that autistic people are nine times more likely to kill themselves than the average population. For people on the autistic spectrum, contact with the criminal justice system can often come at moments of heightened anxiety. As such, it is crucial that all parties are fully informed and trained to find a solution that does not cause undue distress or, in the case of my constituent, severe psychiatric harm.

I urge the Minister to listen to today’s debate and the suggestions from hon. Members. I urge him to speak with his colleagues in the Government to find a way to work in a more joined-up fashion in a ministerial-led initiative, to make sure that what happened to my constituent does not happen to him again, or to others, and to ensure that this country has a reputation across the world for the highest standards in dealing with the issues faced by adults with autism.

--- Later in debate ---

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

It is a great pleasure to serve under your chairmanship again, Sir Edward. I offer my sincere congratulations to the hon. Member for Cardiff West (Kevin Brennan)—not just on securing the debate but on how he presented the subject. I had the great pleasure of shadowing him when he adorned the last Labour Government as Minister for the Third Sector, and the sincerity and thoughtfulness of his approach to this sensitive subject today is entirely characteristic of him. I also congratulate other hon. Members who contributed to the debate.

I am entirely with the relatively new hon. Member for Caithness, Sutherland and Easter Ross (Jamie Stone): I have sat through enough rubbish debates in this place to know a good one. The good debates are the ones we leave having learned something. I shall be frank: the subject on which I am asked to speak today is not one of which I have a deeply rooted, strong understanding. I shall leave the Chamber better informed. A good debate should also be a catalyst for action by Ministers, and further probing. Ministers are trained to try to exude an aura of all-knowingness, which the hon. Member for Cardiff West knows to be a total fallacy.

I shall try to reassure the hon. Gentleman, and other hon. Members who spoke, that there is recognition of one big central point. Since I became an MP in 2005, this country, society and Parliament have made undeniable progress in our understanding and awareness—the central word—of autism, autistic people’s needs, and the consequences of what the hon. Member for Huddersfield (Mr Sheerman) described as an often hostile environment. Despite that progress, however, the clear message from the debate, through individual anecdotes and voices from all parts of the United Kingdom, is that there is still insufficient awareness and understanding.

My hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont) made clear his view that there is still much to be done in Scotland, as there is elsewhere, but we have heard from all parts of the UK in the debate, which creates a powerful message. The fact that there is insufficient awareness and understanding can sometimes lead to unreasonable judgments and decisions, which in turn can lead to trauma. That can mean extremely traumatic experiences for not just the individual involved but their family. The hon. Member for Cardiff West respected the desire for anonymity in the case he raised, but the debate springs from his experience of trying to serve a constituent, so I begin with the acknowledgement, with which I think everyone agrees, that there is clearly some way to go.

The hon. Gentleman, drawing on his experience as a Minister, clearly understood that there are a number of Ministers who could have represented the Government in the debate. It was his fate to get the Home Office, so inevitably what I shall say will focus primarily on the first point of contact in the criminal justice system. However, I give him and other hon. Members an undertaking that, based on what I have heard, I will speak directly to the new Prisons Minister, my hon. Friend the Member for Penrith and The Border (Rory Stewart), to test his understanding and his appetite to follow up on specific requests—not least the desire to encourage other prisons to follow the example of the one in the constituency of my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk, and to continue down the path of accreditation.

We need to recognise that autism is believed to affect about 1% of the population, which makes it highly likely that police officers will encounter people with autism in the course of their duties. It would not be appropriate for me to comment on the specifics of the case that the hon. Member for Cardiff West raised, but it is quite clear from his account, and the fact that charges were dropped, that mistakes were made in that process, and that the experience has had a profound effect on the individual and the family. I am sure that the House would want to associate itself with the regret expressed for that outcome.

However, I hope that the hon. Gentleman will acknowledge as a general point that police officers are often called on to make decisions in difficult circumstances. They have a difficult job and often have to act swiftly to protect individuals or the public more generally. He knows that: we all do. They also have a duty to investigate alleged offences, especially where there are alleged victims. Given the nature of autism, brilliantly articulated in the debate, it is also possible that at times the actions of some individuals with the condition may be mistaken for unco-operative or even aggressive behaviour. Again, I do not infer that that was necessarily the case in the specific instance that the hon. Gentleman referred to, but it is clearly a risk, and it happens.

[Mr Sheerman]

We are all on a learning curve today. Back in the mists of time, I was Roy Hattersley’s deputy as a shadow Police and Prisons Minister, so we all have our learning curve. Does the Minister agree that the real change that has happened recently, for all sorts of reasons, has been a great improvement in the joining up of children’s services, running across all services? As my hon. Friend the Member for Cardiff West said, we have got much better when it comes to children. It is with adults that we seem to have difficulty.

[Mr Hurd]

The hon. Gentleman makes a reasonable point. We have made considerable progress and the hon. Member for Cardiff West was at pains to point out at the beginning of his remarks that he wanted to focus on adults, because clearly that is where some stubborn and significant problems continue to reside in terms of awareness, understanding, decisions, judgments and treatment. We cannot be complacent. I hope that I can reassure the House that we will take all possible steps to improve the general understanding and responses appropriate within the criminal justice agencies.

The hon. Member for Cardiff West pressed me on training, and I will speak a little to that. He is no doubt aware that the Government have published a national strategy on autism—I think he referred to the “Think Autism” strategy; that was refreshed in January 2016. It sets out a programme of work across Government sectors to improve preventive action and support to those living with autism, to assist them to lead fulfilling and independent lives wherever possible. It included recommendations for further improvements in the services and support available across the health, education employment and criminal justice sectors.

The hon. Gentleman cited cuts to the police, but the budget of the College of Policing has not been cut, because of our strong commitment to the training and development of police officers. As part of the strategy, the college has committed to developing a new module of the authorised professional practice for the police service. That was included in the revised guidance on mental health and vulnerability, published in October 2016.

The guidance is the primary reference source for police on legal obligations and the appropriate response to incidents involving people with mental ill health, autism, learning disabilities and other vulnerabilities. It provides indicators for police staff about when there may be health or mental health issues underlying apparent behaviour. That can and should lead to better and more appropriate decision making. Guidance is backed by training modules for all staff who may come into contact with vulnerable people. In addition, the National Autistic Society—I join others in congratulating it, the APPG and the Westminster Commission on Autism on their work—has published a national guide for police officers and staff, which has been distributed to all forces. In many areas there is close liaison between police forces and local autism support groups.

I give this undertaking to the hon. Member for Cardiff West. The College of Policing, which is the agency we rely on for the development of police standards and training, is under the new leadership of Mike Cunningham. I undertake to write to Mike following this debate to set out some of the concerns expressed here and to seek reassurance from the college that those are understood and absorbed and that it attributes sufficient weight and importance to this issue.

--- Later in debate ---

[Mr Hurd]

I agree with the hon. Lady. My experience of talking to police officers—this is the universal theme—is that they want to do the job properly. They do a very difficult job and need the tools to help them in that job.

Our fundamental challenge is the one expressed in this debate: that levels of awareness and understanding are too low. Our responsibility is to help police officers do what is natural to them—to do their job properly and safeguard the vulnerable where they can, but to play their part in executing swift justice as well. Clearly, the process of education, understanding and awareness building has to continue and does not end. I undertake to seek reassurances from the new leadership of the college that they understand that.

The police and other agencies continue to explore innovative solutions to help support those in the community with autism with daily interactions or official contact. In some areas, autism alert cards are available to be carried by those who are autistic. Locally developed systems may include additional information about the person and contact details of family members or other carers. In other areas, similar results are achieved through autism apps held on mobile telephones. Apps can include information such as carer details and the user’s coping mechanisms, as well as useful links to external support sites. So technology can be our friend, but there is no substitute for the training and guidance we talked about.

I will say a word about police detention, because that has been a difficult and emotive subject. If the police encounter a person who appears to be mentally disordered and in immediate need of care and control, it is open to them to exercise powers under section 136 of the Mental Health Act 1983 to take such a person to a place of safety for a mental health assessment. Use of such powers might be appropriate in the case of a person with autism, depending on individual circumstances, and might be preferred over an arrest, again depending on precise circumstances. New legislative provisions, however, provide that police officers should consult a mental health professional before exercising such powers, where that is practicable. That is intended to ensure that the most appropriate decisions are made in each case, in particular where the person may already be in contact with local health or social support services.

If an offence is alleged to have been committed, however, or the person needs to be dealt with through the criminal justice system, notwithstanding any underlying health factors, an arrest may be necessary and appropriate. Under the Police and Criminal Evidence Act 1984, codes set out the safeguards that need to be in place for any individual in custody, with particular provisions in respect of the most vulnerable.

Forces are expected to have available easy-read documents using simple language and pictures to show what will happen while those people are in custody. The hon. Member for Cardiff West talked about the need for appropriate adults in situations where such provision might not have been in place. We are clear that an appropriate adult is required to be present in cases involving children or vulnerable adults, including those with autism, during procedures such as being given information on rights, detention reviews, interviews and taking of any evidence. He rightly pressed me about the Government’s response to Lord Bradley’s report—I assure the hon. Gentleman that we have taken the report very seriously, and there is a programme of action on the various recommendations.

The hon. Gentleman may be aware that liaison and diversion schemes now operate in police stations and courts across some 80% of England. Work continues on how best to ensure that appropriate adults are available when required. A working group of the PACE strategy board has been developing an approach to improving provision throughout the country. That involved partnership work between police and crime commissioners and local authorities. The work is expected to be completed and published soon.

[Mr Sheerman]

We are coming to a very sensitive part of the Minister’s speech. I am sure he will turn to the international dimension. Has he any update for us on the Lauri Love case? Many of us in Parliament are fighting to save that young man from being taken to the United States, to a hostile environment, where he might well commit suicide.

[Mr Hurd]

The short answer is no, I am not in a position to give an update to the House on that, but of course I completely understand its sensitivity. An announcement will be made in due course.

I was trying to give reassurance to the hon. Member for Cardiff West, who prompted this debate, about measures taken to ensure greater provision of appropriate adults. I was saying that liaison and diversion schemes operate in police stations and courts in about 80% of England. Such schemes help to assess individual vulnerabilities and any underlying mental health, autism or learning disabilities issues. They can further assist with referring the person to an appropriate health or welfare assessment if necessary, as well as helping to inform the most appropriate charging decision or sentencing outcome.

The hon. Gentleman mentioned that the family in his constituency case were frustrated with the complaints procedure. Let me say something briefly about that. If individuals are unhappy about their treatment by the police, there are avenues of complaint. Individuals may complain directly to the relevant police force, or they can raise a matter with their local police and crime commissioner. Complaints that include serious and sensitive matters such as assault or serious corruption must be referred directly by the police to the Independent Office for Police Conduct. Police and crime commissioners maintain an overview of complaints about the police and they are democratically elected to hold the chief constable to account for the performance of the force, on behalf of the public.

There is a further right to appeal against how a complaint has been handled by the police. Depending on the nature of the complaint, it will be made either to the chief constable or to the Independent Office for Police Conduct, formerly the Independent Police Complaints Commission.