Written evidence from Mencap and the Challenging Behaviour Foundation

About the Challenging Behaviour Foundation

The Challenging Behaviour Foundation (CBF) is a charity which exists to demonstrate that individuals with severe learning disabilities who are described as having challenging behaviour can enjoy ordinary life opportunities when their behaviour is properly understood and appropriately supported

About Mencap

We support the 1.4 million people with a learning disability in the UK and their families and carers. We fight to change laws and improve services and access to education, employment and leisure facilities, supporting thousands of people with a learning disability to live their lives the way they want. We are also one of the largest providers of services, information and advice for people with a learning disability.

This submission is informed by the lived experience of families of children and adults with a learning disability who campaign with our organisations and who we support through our information and support services, as well as members of the CB-NSG Legal Panel.

It is important the particular vulnerabilities of people with a learning disability when accessing the criminal justice system are understood, and the CJS is made accessible for people with a learning disability and/or autism, including ensuring victims with a learning disability and/or autism are given appropriate support.

Background: key points in relation to victims with a learning disability

• There is a need to improve consistency of awareness and access to what is already there to support victims with a learning disability – including Registered Intermediaries and initiatives such as pre-recorded cross-examination (section 28).
• There is a need for better insight from all involved in the Criminal Justice System of just what it means for individuals to have a learning disability - dispelling discriminatory assumptions.
• We are not aware there is any national guidance from the National Police Chiefs Council (NPCC) for the investigation of crimes against people with a learning disability and/or autism, or people with additional communication needs. This results in a postcode lottery for disabled victims who are dependent on the insight and discretion of individual investigating officers as to i) interview techniques; ii) alternative sources of evidence; iii) provision of an intermediary; iv) payment for support services. We think national guidance would be very helpful.
• There is no mandatory training for police officers responsible for investigating crimes against people with a learning disability and/or autism, or people with additional communication needs. Investigating officers may have no background in understanding or working with people with a learning disability and/or autism, including with regards to interview technique. We would like to see mandatory training.
• We are aware that people with a learning disability who are victims of crime are routinely dismissed as lacking capacity to give a police interview, and their cases are far too often made the subject of a ‘No Further Action’ decision as a result.
• We are aware that officers often do not investigate whether the victim may be enabled to give evidence through either a registered intermediary or with the assistance of a psychologist. Our understanding is that funding for an intermediary to support a victim has to come from the individual police force’s budget, and they may decide it is not cost effective to do so. It is important that people with a learning disability are able to access a registered intermediary at this stage.
• Investigating officers too often dismiss common assault offences that occur during the course of physical restraint (e.g. restraint by paid care staff of people with a learning disability detained under the Mental Health Act in in-patient hospital settings) as ‘reasonable’. There is no formal requirement for officers to have specialist training when reviewing CCTV of restraints, or to consult with an appropriate expert in learning disabilities in order to ascertain whether disproportionate force was used. Again, the issue of funding experts to review CCTV is a postcode lottery.
• We are also concerned about the criminalisation of people with a learning disability in inpatient units who hit out at staff, and then are charged for assault, when they're being 'cared' for in a supposedly specialist service and are in fact the victim of poor support and restrictive practices.
• The ongoing failures to adequately investigate crimes against learning disabled and / or autistic people potentially breaches their right to an effective investigation by the State under Article 3 ECHR, and the right to access a Court remedy as protected by Article 6 ECHR, and the police’s duties to make reasonable adjustments as per the Equality Act 2010.
• It is vital that reasonable adjustments are made for people with a learning disability and they are able to access special measures throughout the Criminal Justice System. It is also important that people with a learning disability and their families can access appropriate advocacy throughout the Criminal Justice System, which can be particularly complex and traumatic for people with a learning disability.
• It is important that people with a learning disability who are victims of crimes can access appropriate trauma support.

The Draft Victims Bill

Analysis of the Draft Bill in relation to victims who have a learning disability:

1. The status of the Victims Code will be strengthened as it will be placed in primary legislation, which is to be welcomed.
2. The Bill introduces a duty on local authorities, Police and Crime Commissioners (PCCs) and Integrated Care Boards to collaborate with each other when commissioning support services for victims but does not include statutory provision for additional funding for such services. This duty is only in respect of victims of domestic abuse, sexual abuse and serious violence. “Serious violence” is defined in relation to (i) the maximum penalty for the offence; and (ii) the impact of the violence on any victim. This is not sufficiently wide to cover the potential offences committed against people with a learning disability and/or autistic people who are likely to require support to access the CJS for most (if not all) offences, and who may be impacted upon more seriously by seemingly “minor” offences (e.g. assaults that do not constitute serious violence).
3. Local authorities, PCCs and Integrated Care Boards will be required to publish a joint local strategy to set out the aims and approach for commissioning such support services, following consultation with affected groups. It is important that people with a learning disability and autistic people and organisations supporting people with a learning disability and autistic people are included in such consultations.
4. The responsibility for scrutinising compliance with the Victims Code will be transferred from the Victims Commissioner to PCCs, a shift from national to local level scrutiny. This is concerning because (i) the Victims Commissioner is a non-political appointee and retains greater independence than PCCs; (ii) the Victims Commissioner can provide overarching scrutiny into Victims Code compliance and identify thematic issues (such as the lack of support and involvement of disabled victims in the CJS); (iii) PCCs are unlikely to have specialist knowledge of the needs of people with a learning disability and/or autism who are victims of crime, including support and communication requirements.
5. Ministers will have the power to direct regular joint thematic inspections by criminal justice inspectorates on victims experiences. We would like to see a thematic inspection of the experience of people with a learning disability and/or autism who are victims of crime.
6. The Bill is silent as to advocacy support for people with a learning disability and/or autistic people, and those with additional communication needs. The focus is entirely on the roles of Independent Domestic Violence Advisors (IDVAs) and Independent Sexual Violence Advisors (ISVAs), with no mention of other types of advocacy support services, including for people with additional communication needs. IDVAs and ISVAs are not generally trained to support people with a learning disability and/or autism who are victims of crime.
7. The Bill is also silent as to the entitlement to the services of a registered intermediary to a victim with additional communication needs when giving evidence in the CJS.
8. The Bill is silent as to any requirement for key stakeholders in the criminal justice system to undertake training in respect of meeting the needs of victims of crime with communication difficulties, who have different needs to undertake ABE interviews, give evidence in Court, and to understand the proceedings.

Suggestions:

1. The Bill does not incorporate a formal role for a victim as a participant, rather than a bystander, in the CJS. We would support the Victims Commissioner call for victims to be given a distinct legal status within criminal proceedings, as a party to the criminal complaint, so as to ensure that the victim’s experience is placed at the centre of the CJS. 
2. In addition to local scrutiny by PCCs, the Victims Commissioner should retain national oversight for compliance by the police and the CPS with the Victims Code, to avoid any ‘postcode lottery’ and to ensure that thematic issues as to the treatment of victims, including victims who have a learning disability and/or are autistic, are identified, and to strengthen their rights within the process.
3. The Bill emphasises the need for the CJS to collect data on the compliance of CJS agencies with the Victims Code. Any such dataset must specifically include data on the experiences of people with a learning disability and/or autism who are victims of crime, including (i) advocacy and support services offered; (ii) the use of intermediaries; and (iii) CJS outcomes for this victim group.
4. The Bill should mandate training for PCCs on the needs of learning disabled and / or autistic victims of crime, and how CJS agencies should meet their needs throughout the criminal process. In their scrutiny role, PCCs should specifically consider how local crime agencies are ensuring compliance with the Victims Code on behalf of this group.
5. The Bill should mandate training for police officers, the CPS and judges who are involved in the investigation, prosecution and hearing of crimes against people with a learning disability and/or autistic people, including on (i) communication needs and reasonable adjustments to be offered to this victim group to enable them to participate fully in the CJS process; (ii) the admissibility of alternative sources of evidence, beyond the victim’s own account; and (iii) support requirements for this victim group.  
6. The Bill should require local authorities, PCCs and Integrated Care Boards to commission support services for victims of crime with communication and /or learning disabilities irrespective of the category of offence for which they have complained, and entitlement and funding to such services should be on a statutory footing.  This should include (i) specialist advocacy services; (ii) support and therapeutic services; and (iii) access to a registered intermediary to assist the victim to give evidence to the police and, if required, in Court.

Viv Cooper, OBE

Chief Executive

Challenging Behaviour Foundation

Dan Scorer

Head of Policy, Public Affairs, Information & Advice

Royal Mencap Society