Criminal Justice System: Adults with Autism

Kevin Brennan 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.

[Mrs Anne-Marie Trevelyan (Berwick-upon-Tweed) (Con)]

Does the hon. Gentleman think it might be worth the Government considering, with Cabinet Office oversight, the creation of something like the covenant and veterans board? That would ensure that every Department had someone absolutely focused on the issue. Autism affects every Department and how we make reforms. Such a board could drive the agenda much more comprehensively through the system.

[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 ---

[Carolyn Harris (Swansea East) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward. I congratulate my hon. Friend the Member for Cardiff West (Kevin Brennan) on securing this important debate.

Let us be clear. Autistic people are discriminated against in society as a whole, but especially in the criminal justice system. They can face discrimination when their autism is not readily apparent, or no help is offered. Where it is apparent, they are often treated differently or suspiciously. Autistic people without a learning disability are nine times more likely to die by suicide than the rest of the population. That figure is considerably high and shows the lack of understanding and awareness of the needs of people with autism.

On occasions when an autistic person comes to the attention of the police and other services, it is normally because their social and communication difficulties are misunderstood or they have not been given appropriate support. Autistic people can become extremely distressed in situations that they do not understand or when they are surrounded by noise and confusion. In such circumstances, their actions and behaviour can easily be misinterpreted and subsequent actions may escalate a situation.

The criminal justice system needs to reform and adapt in order to meet its fundamental human rights obligations to treat people fairly and equitably. The National Autistic Society developed its autism accreditation scheme for prison settings. Accreditation covers autism understanding training for prison staff such as guards, but is also more widely helping to make the prison environment more autism friendly. Accreditation should be extended to all prisons, all detention centres, all courts and all police stations, as well as to the probation service. The duty must be on the prisons and courts and their individual officers to ensure the fair treatment of those in contact with the criminal justice system. Individual officers could also be accredited. There should be a requirement for at least one key individual in central functions to be accredited: for example, duty sergeants or clerks of the court.

Accreditation recognises good practice, which helps ensure that people on the autistic spectrum get the extra support needed to adjust to life in prison, and extra support while they serve a sentence, or as they prepare for leaving prison. Without that support, autistic people may develop additional needs such as mental health problems or risky behaviour, and rehabilitation will be harder. Greater awareness and support will benefit autistic people as well as prison staff, police officers and managers in that area of work. Expert opinion is clear that autism sufferers need special and sensitive treatment, especially in a stressful criminal justice environment.

[Kevin Brennan]

I am grateful to my hon. Friend for the way she is responding to the debate. What she just said has triggered a thought, and I want to quote a comment made by someone in the professional standards department of the police service about the complaint by my constituent. It begins:

“I’ve read this several times and they just don’t get it do they”

and notes that my constituents “continue to maintain” that their son

“should have been ‘diverted’ prior to arrest. What utter rubbish!”

If that is the continuing attitude in the police, does my hon. Friend agree that we have a long way to go to get things right?

[Carolyn Harris]

We certainly do have a long way to go, and what my hon. Friends have said emphasises what we all know: we need to look at autism as a special consideration.

For many autistic people, prison means the system has failed. Work must be done with probation services and police forces to create a specification for autism accreditation in those settings. That will help to prevent autistic adults from entering the criminal justice system in the first place and it will certainly help with rehabilitation. More training and support must be given to initial responders to crime, including those working with witnesses and victims. Initial contact with the police will often come at a time of heightened anxiety, so it is important that the police know how to approach such a situation and how not to allow it to escalate.

--- Later in debate ---

[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.

[Kevin Brennan]

I know that this is not directly the Minister’s responsibility at the Home Office, but it seems that there is a gap in the accountability chain in relation to the British Transport police, because it is paid for by the train operating companies and does not have an elected police and crime commissioner. Will the Minister talk with his ministerial colleagues about whether there are ways in which we can improve the accountability of the British Transport police?

[Mr Hurd]

The hon. Gentleman makes a reasonable point. I will certainly assume that undertaking and I will communicate back to him the consequences.

The police complaints process is a very sensitive area for the public and for the police. The IOPC is under a new chief executive, Michael Lockwood, whom I will write to after the debate to register some of the concerns expressed so that they are on his radar screen as he assumes leadership of that organisation.

I congratulate the hon. Gentleman on securing this debate, which has allowed me to raise my own awareness of some of the underlying difficulties and experiences of our fellow citizens. The treatment that they receive in our public service, whether in the criminal justice system or the health system, is quite unacceptable. That remains a challenge for us as a society and for Governments of all colours. I have tried to reassure colleagues that we have done much in recent years to improve awareness of and understanding about people who have what initially may be invisible vulnerabilities, such as autism, but doubtless much more can be done. The Government have demonstrated their commitment to improving protections for the wellbeing of the potentially vulnerable, including in the criminal justice system.

I made various undertakings in the debate, which I will honour despite whatever advice I receive after the debate. I congratulate everyone who has contributed; debates such as this will ensure that the issue remains high on the agenda. I have seen it rise since I have been in Parliament, but it is only through the persistence of the APPG, Members and various criticisms from the National Autistic Society that this point continues to be pressed, meaning that more Members come out of these debates with increased awareness of the importance of the issue.

[Kevin Brennan]

I am grateful to have a brief opportunity to respond. I thank everyone who has participated in the debate. More than one Member pointed out that it has been a learning curve for everyone present; I include myself among them. It is a subject on which we all can learn more and we would benefit from learning more about autism. In particular, I thank all colleagues who contributed with a speech or an intervention.

I hope that as many as possible attend tomorrow’s debate brought by my hon. Friend the Member for Bristol West (Thangam Debbonaire) on another aspect of autism, which reinforces the point that I made at the outset: this is a subject that permeates across different parts of Government. That highlights the need for Ministers to do what the Minister has promised—to work with each other and perhaps to consider some of the suggestions made in the debate in a more formal way, in order to tackle the issue of autism across all Government Departments. If he chooses to do that along with his colleagues, he will certainly have my support and I am sure that of my hon. Friends as well.

I thank the Minister for his response. He referred to the brief period when I was radiant with lawful power all those years ago, and when he was my shadow—I am now a shadow of my former self. During his remarks at the end of the debate, I saw his officials’ ears prick up when he said that he was going to carry out what he had promised to do, whatever advice he received. I say to his officials that he is a free-range, organic Minister, rather than a battery-farmed one. He is never satisfied to just read out his brief from his civil servants, but will listen and try to act. Having had praise lavished on him, he now has to fulfil all the things he pledged to do in the debate: to follow up with other Ministers, to ensure that he gets the College of Policing on the case, and to take on board my point about the British Transport police and the IOPC. I am glad that he will engage with the new leadership at the IOPC.

I absolutely concur with the Minister about some of the great work that our police officers do in very difficult circumstances, but there are occasions when, either through lack of training or in some cases through poor practice, things go wrong. We are here to hold them to account while acknowledging the incredible work they do under the most difficult circumstances.

I thank the Minister for the sincerity with which he has responded to the debate and his promises that he will take things further and learn more about all this. Finally, I thank all the people with autism and their families across the country for their tremendous forbearance under very difficult circumstances, and for how they cope with what can be a very difficult situation in their lives. I hope that the debate will genuinely help to move things forward and to make a difference.

Question put and agreed to.

Resolved,

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