182. In our original call for evidence, we did not specifically ask for evidence of what people with learning disabilities thought about the criminal justice system. In national surveys of people's fears and concerns, policing and criminal justice consistently ranks highly. However, the evidence we received during the course of this inquiry raises serious concerns. The problems in relation to the investigation and prevention of ill-treatment of people with learning disabilities, such as abuse, bullying and harassment, when that treatment involves criminal behaviour, are particularly acute. The State has a positive obligation to investigate, and in some cases, prosecute, individuals who have committed criminal offences, particularly those which involve assaults on people and endanger life and physical integrity.[283]

183. Some witnesses told us that adults with learning disabilities are not treated fairly when they are accused, or convicted, of criminal offences. We recognise the Government has a responsibility to protect the public from criminal behaviour. However, as we have consistently emphasised, the Government also has obligations to protect the rights of those people accused, or convicted of, having committed a crime, both under the common law and under the rights to liberty and to a fair hearing, as guaranteed by Articles 5 and 6 of the ECHR. Particular care must be given to the rights of vulnerable defendants or prisoners, including children, those with mental health issues, or with learning disabilities.

184. In response to this evidence, we wrote to the Ministry of Justice, the Home Office, the Director of Public Prosecutions, the Association of Chief Police Officers ("ACPO"), the Metropolitan Police Commissioner, the Director General of the Prison Service and the Director of the Probation Service.[284] We have, so far, received responses only from the Director of Public Prosecutions,[285] ACPO[286] and the Director of the Probation Service[287]. Although we have some serious human rights concerns about criminal justice issues, we have not had the opportunity to discuss these with Government. We may wish to return to these matters in a future inquiry.

Victims of Crime

185. We considered in Chapter 3 the devastating effect that negative attitudes, assumptions and stereotypes can have on the lives of people with learning disabilities. In Chapter 2, we considered briefly some of the recent, shocking cases of crimes involving adults with learning disabilities. The evidence we have received suggests that people with learning disabilities may be vulnerable to a range of ill-treatment, ranging from verbal abuse, through harassment and bullying to neglect, sexual or financial exploitation, to physical assaults.[290] For example:

We have experienced, seen and heard about lots of bullying happening in the community. People with learning disabilities are often scared to go out. [291]

People said that they were restricted in their ability to go out and enjoy their local community, because of the name-calling and hate crime. They urgently wanted something to be done about this problem. They also felt that it was important to use the words 'hate crime' rather than bullying, since the latter plays down the importance of what people experience.[292]

186. Valuing People Now acknowledges that people with learning disabilities are reporting that they do not feel safe in their local communities, because they face crimes targeted at them due to their learning disability.

187. We were told by a number of witnesses that there are three principal issues which cause concern for people with learning disabilities who may be victims of crime:

• firstly, serious crimes against people with learning disabilities are not taken seriously, but are diminished by using the label of "abuse";
• secondly, people with learning disabilities aren't able to report crimes easily, or aren't taken seriously when they do report crimes; and
• thirdly, not enough is being done about disability hate crimes.[293]

TAKING CRIMES AGAINST PEOPLE WITH LEARNING DISABILITIES SERIOUSLY

…the use of the term abuse to refer to crimes devalues the offences and the victims. It is our experience that calling a criminal offence abuse also encourages organisations to believe that these crimes do not need to be reported to the police but can be dealt with by the organisation.[296]

189. This reluctance to treat such incidents as crimes was also highlighted by Mencap:

Too often Protection of Vulnerable Adult (POVA) procedures, or internal disciplinary measures in care services, are used instead of criminal proceedings giving the impression that crimes against people with a learning disability are worthy of less serious action than those committed against other individuals.[297]

190. Valuing People Now recognises this is an issue for people with learning disabilities:

Whilst adult protection might be appropriate, people have the same rights as every other citizen to justice through the criminal system.

191. We asked the National Co-Director for Learning Disabilities about these issues. He told us that:

One of the problems is that when people are subject to any type of crime, they often find themselves referred through protection of vulnerable adult procedures which may well be appropriate and should be pursued when they need to be, but often, that is at the expense of them getting legal redress through the criminal justice system.[298]

192. In 2000, the Government published a national framework, No Secrets, for local councils with social services responsibilities, local NHS bodies, local police forces and other partners which aimed to develop local multi-agency codes of practice to help prevent and tackle abuse against vulnerable adults.[299] No Secrets was drafted before the entry into force of the Human Rights Act, although it aims explicitly to build on the Government's respect for human rights.[300] This guidance states that criminal investigation should take priority over all other lines of inquiry.

193. Our witnesses expressed concern that the current guidance on the protection of vulnerable adults, No Secrets, is out of date. It fails to draw an adequate distinction between duties to report suspected criminal behaviour and responsibilities for safeguarding vulnerable adults, when abusive treatment did not amount to a crime.[301] ACPO told us that the police service had "long recognised the limitations in law" for the protection of vulnerable adults.[302]

194. In June 2007, Ivan Lewis MP, Minister for Care Services announced that there would be a review of the effectiveness of No Secrets. ACPO told us that they are pushing for the introduction of new legislation which would provide similar protection against abuse for vulnerable adults, including people with learning disabilities.[303] Valuing People Now proposes to commit the Government to new guidance on hate crime and learning disability with funding for two voluntary sector initiatives to increase awareness and reporting of crime by people with learning disabilities.[304]

195. We recognise that not all abuse against adults with learning disability will amount to criminal behaviour. We recognise that in many circumstances, individuals who uncover abuse and criminal behaviour against vulnerable adults will rightly treat the protection of the victim as a priority. Where an individual has been seriously assaulted or where his or her life has been endangered, there is a clear obligation on the State, secured by that individual's ECHR rights, to conduct an effective investigation of the circumstances of the abuse. This includes an obligation to provide for the prosecution of the individual responsible, if appropriate. These important human rights obligations apply to everyone, including people with learning disabilities, unless there are objective reasons why an investigation or a prosecution should not go ahead.

196. We recommend that in the review of No Secrets and the proposed Valuing People Now guidance on crime and people with learning disabilities, the Government provides clear and accessible guidance on protecting people with learning disabilities (and other vulnerable adults) from abuse and ensuring that if a crime is suspected, effective steps are taken to inform and involve the police. We urge the Government to ensure that the relevant criminal justice agencies, including the Association of Chief Police Officers, the Crown Prosecution Service, the Home Office and organisations of and for people with learning disabilities, are closely involved in shaping this guidance.

197. In our recent report on older people in healthcare, we made a number of recommendations to deal with abuse in a health and social care setting. These included our proposal, that the Government should consider requiring hospitals and care homes to place a duty on health and social care workers to report abuse or suspected abuse. The Government has decided to devise new registration requirements as part of the reform of health and social care. We are disappointed that the Government has not agreed to create a duty to report abuse, as we previously recommended. We call on the Department of Health, as part of their review of the No Secrets Guidance, to reconsider our recommendation that there should be a duty on those working with vulnerable adults, at least within the NHS and in care homes to report suspected abuse.

INCREASING THE CONFIDENCE OF PEOPLE WITH LEARNING DISABILITIES IN THE CRIMINAL JUSTICE SYSTEM

198. We are concerned about the extremely low level of confidence that some people with learning disabilities have in the criminal justice system. For example:

• people with learning disabilities sometimes do not know that what is being done to them is a criminal act. Instead, many people with learning disabilities believe that the crime that they experience is simply a normal part of life;[305]
• people with learning disabilities may not know how to report a crime;[306]
• it can be particularly difficult for people with learning disabilities to raise their concerns if they have communication difficulties;[307]
• it is difficult if the complaint is about the person providing care as a person with learning disabilities may fear the loss of care, accommodation or other support if they make a complaint and/or make a report to the police;[308]
• even if they report a crime, a care provider may not take the issue any further or may (as discussed above) investigate the matter themselves instead of involving the police;[309]
• police can be unhelpful;
• people with learning disabilities are not confident in talking to the police when they have been victims of a crime;[310]
• the police can be reluctant to accept that a crime has been committed if the victim has a learning disability;[311]
• alleged crimes might not be investigated or prosecuted because people with a learning disability, are not considered to be reliable witnesses. This is particularly the case where the person has communication difficulties;[312]
• information is not provided in a format that is accessible to people with learning disabilities and frontline police officers do not receive sufficient training to enable them either to identify someone with a learning disability or know how to meet their needs;[313]
• the police do not always consider using the special measures available under the Youth Justice and Criminal Evidence Act 1999 and may assume that the individual with a learning disability cannot give evidence;[314]
• once a complaint has been made, the Crown Prosecution Service may think that the complainant with learning disabilities will not be able to give credible evidence, or that it will be too stressful for them to do, which may reduce the likelihood of a successful prosecution.[315]

199. Witnesses drew our attention to a number of recent, positive developments, including:

• the amendment of the ACPO and Home Office Police Standards Unit Tactical Manual to include disability hate crime;[316]
• adoption of a Crown Prosecution Service Policy on Prosecuting Cases of Disability Hate Crime;[317] and
• the national roll out of the intermediaries programme, as one of the Special Measures open to vulnerable and intimidated witnesses, including adults with learning disabilities, to give their best evidence in court.[318]

200. People with learning disabilities, in common with the wider population, may have mixed experiences of dealing with the police, the courts and other parts of the criminal justice system. Every part of that system has an obligation to promote equal access to their services for disabled people, including those with learning disabilities, as part of their duties under the Disability Equality Duty.

HATE CRIMES AND LEARNING DISABILITY

201. We received a lot of evidence about "hate crime" against people with learning disability. Witnesses' concerns principally covered two issues. Firstly, that people with learning disabilities were more likely to suffer crime as a result of their vulnerability and as a result of negative attitudes towards people with learning disabilities. Secondly, that although the law provides for increased sentences in cases where the offender demonstrates hostility based on disability or perceived disability or where a crime is motivated by that hostility,[319] this power is rarely used.[320]

202. In Valuing People Now, the Department of Health confirms that "Stopping hate crime against people with learning disabilities is a new part of the Valuing People policy".[321] The Government propose to take action to "address hate crime" and to "help ensure that people feel safe in their local communities". It is proposed that the Home Office, working with the Department of Health, will produce guidance for the criminal justice system on hate-crime and learning disability. The Home Office will fund voluntary sector projects to help people with learning disabilities protect their personal safety and report crime.[322]

203. Between April and September 2007, we understand that there were 68 prosecutions where section 146 of the Criminal Justice Act played a role.[323] We asked the National Co-Director for Learning Disabilities whether figures were available on crimes aggravated by hostility on the grounds of disability, and particularly on the grounds of learning disability. He told us that "data collection around crime and hate crime does not specifically identify that a person has a learning disability, they are broader categories than that".[324] The British Crime Survey does not gather specific information on whether those participating in the survey have learning disabilities, nor does the survey involve residents of care homes.[325]

204. We welcome the Government's commitment to meet the concerns of people with learning disabilities about hate crime, in Valuing People Now. We welcome the proposal that the Home Office should lead on the production of guidance to address hate crime and to increase the safety of people with learning disabilities in their communities. We recommend that people with learning disabilities, their carers and supporters, ACPO, the Police Federation and the CPS are closely involved in the production of this guidance. We consider that more accurate information would better inform the Government's policy on this issue. As part of the Government's commitment to address hate crime and the personal safety of adults with learning disabilities, we recommend that steps be taken to gather more consistent data on the level of crime against people with learning disabilities, either through a survey sponsored by the Home Office, or as part of the British Crime Survey.

205. ACPO has issued guidance which provides that a hate-crime against a person with a disability, or a "disablist incident", includes any incident which is perceived by the victim or any other person as "based upon prejudice towards and hatred of the victim because of their disability"[326]

206. The CPS told us that they were taking proactive steps on hate crime and the application of section 146 of the Criminal Justice Act 2003. They explained that their recent guidance on Prosecuting Cases of Disability Hate Crime "makes clear their commitment to dealing with this serious and sensitive type of offending". However, they explained that, although they urge prosecutors to be proactive in seeking evidence of hostility or motivation on the grounds of disability, in order for disability to be considered an aggravating factor in sentencing, section 146 must apply:

Some disabled people may be victims of crime because they are perceived as being vulnerable - easy targets. Where there is no evidence of hostility or motivation and s.146 cannot therefore be applied, prosecutors are none the less reminded that they should consider the culpability of the defendant and the consequences of the victim so that the case can be put before the court in a way that enables it to sentence appropriately.[327]

207. The CPS told us that they were proposing to change their guidance on charging, so as to require the police to refer incidents which fit the ACPO criteria for a hate crime to the CPS. This enables an early discussion about hostility and motivation.[328] They explained that this would allow information about the offence to be identified and steps taken to gather relevant evidence at an early stage.

208. We asked the National Co-Director for Learning Disabilities what he thought about the CPS policy. He said that he thought that: "it could have been strengthened if there had been a greater degree of engagement from the CPS with myself and my colleagues when they were writing it. There is more engagement now and we hope to build on what they have done in the future."[329]

209. We welcome the recent steps taken by ACPO and the CPS to improve their policy on crimes against victims with disabilities and hate crime, including against adults with learning disabilities. We were disappointed to hear that the CPS had not initially worked closely with the National Co-Director for Learning Disabilities. We recommend that, where any public sector agency is considering a policy which is relevant to disabled people, steps are taken to ensure that people with learning disabilities are specifically considered as part of the policy formulation, and if possible involved in the preparation of that policy. We welcome the proposal by the CPS to amend their charging guidance to ensure that they are involved at an early stage in the investigation of crimes against people with a learning disability where hate crime is suspected. Whilst any decision on prosecution must be based upon the evidence available and should take full account of the rights of the defendant, we consider that this would be a positive development which could increase the confidence of adults with learning disability in the police and the criminal justice system, by ensuring that any element of hostility or prejudice towards them is properly investigated and considered as part of any prosecution.

Accused and defendants

210. We received evidence from the Prison Reform Trust ("PRT") on the treatment of people with learning disabilities who are accused of crimes. The PRT told us that it is currently working on a programme, entitled, "No one knows: Offenders with learning difficulties and learning disabilities", which aims to "effect change by exploring and publicising the experiences of people with learning difficulties and learning disabilities who come into contact with the criminal justice system". The PRT told us that when people with learning disabilities come into contact with the police and the courts service, they are less likely than people without learning disabilities to receive a fair hearing.[331] This evidence included a number of individual examples of maltreatment by the police of people with learning difficulties or disabilities, including "being 'roughed up'"; being placed under pressure to undergo an interview without an appropriate adult being present; and being pressured into signing a statement which they were unable to read.[332] These examples are all likely breaches of the Police and Criminal Evidence Act ("PACE") 1984 and the PACE Codes of Practice.

211. The PRT also told us about the concerns of people with learning disabilities with their experiences at court, including being unaware of what was happening during trial and an inability to understand decisions of the court, including on bail and sentencing.[333]

212. We are concerned that the problems highlighted by this evidence could have potentially very serious implications for the rights of people with learning disabilities to a fair hearing, as protected by the common law and by Article 6 ECHR. Some of this evidence also suggests that there are serious failings in the criminal justice system, which give rise to the discriminatory treatment of people with learning disabilities.

Prisoners

213. The PRT told us about a significant number of prisoners, who, because of their disability, are excluded from aspects of the prison regime, including offender behaviour programmes. In particular:

• lack of support for this group of prisoners;
• unreliability of screening and assessment tools in identifying learning disabilities and learning difficulties;
• gaps in the provision of services and support to prisoners with learning disabilities and a lack of clarity on how to access services.

214. The PRT told us about a significant number of prisoners who, because of their disability, are excluded from offender behaviour programmes. This delays their parole dates and affects their resettlement opportunities, leading to people with learning disabilities spending longer in prison than prisoners who are in a comparable situation, but who do not have learning disabilities.[334] Mencap and the Foundation for People with Learning Disabilities agreed with this assessment.[335]

215. The evidence which we have received on the treatment of people with learning disabilities in prison and their inability to secure equal access to parole, raises one of the most serious issues in our inquiry. We are deeply concerned that this evidence indicates that, because of a failure to provide for their needs, people with learning disabilities may serve longer custodial sentences than others convicted of comparable crimes. This clearly engages Article 5 ECHR (right to liberty) and Article 14 (enjoyment of ECHR rights without discrimination). It is also an area that falls within the Prison Service's responsibilities under the Disability Equality Duty.

216. In its recently published consultation document Improving Health, Supporting Justice, the Government has recognised that further work is required to assist in identifying people with learning disabilities in prison and addressing their needs.[336]

217. We welcome the publication of the Government's consultation, Improving Health, Supporting Justice. We recommend that the Government ensures that people with learning disabilities are able to participate effectively in that consultation. We recommend that each of the relevant criminal justice agencies, including the police, the Crown Prosecution Service, the Court Service, the Prison Service and the Probation Service undertake an audit of their services for compliance with ECHR rights, the Disability Discrimination Act and, specifically, the Disability Equality Duty, in order to inform the Government's Improving Health, Supporting Justice, when it is finalised next year.

284   Ev 384; Letter from the Chair to the Rt Hon Jacqui Smith, Home Secretary. See also: Ev 406, letter from the Chair to Director General of the Prison Service, Mr Paul Wheatley. Back

285   Ev 392. Back

286   Ev 402. Back

287   Ev 405. Back

288   Annex 2, para 5. Back

289   Ev 248, para 1.1. Back

290   Ev 80, 87, 91, 93. Back

291   Ev 69. Back

292   Ev 224. Back

293   Ev 247; See also Valuing People Now, 12.1.1.2. Back

294   Ev 142, Case Study. Back

295   Q 144. Back

296   EV 248, para 2.1.3. Back

297   Ev 143; See also Ev 261, para 6.8. Back

298   Q 144. Back

299   No Secrets. Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, Department of Health, 2000. Back

300   Ibid, para 1.1. Back

301   Ev 263. Back

302   Ev 403. Back

303   Ibid Back

304   Valuing People Now, 12.1.2.2. Back

305   Ev 247, Annex 3. Back

306   Ibid. Back

307   Ev 247. Back

308   Ibid. Back

309   Ibid. Back

310   Ev 80, 142. Back

311   Ev 122, 142. Back

312   Ibid. Back

313   Annex 3, para 41-3. Back

314   Ev 142-144;, 170. Back

315   Ev 268, para 9. Back

316   Ev 276. Back

317   Ev 252, 396 para 55. Back

318   Ev 266, 398. Back

319   Section 146, Criminal Justice Act 2003. Back

320   Section 146, Criminal Justice Act 2003. Ev 247, 250, para 3. Back

321   Valuing People Now, Chapter 12. Back

322   Valuing People Now, 12.1.2. Back

323   Ev 287, para 7.2. Back

324   Q 146. Back

325   Ev 249. Back

326   Home Office Police Standards Unit and the Association of Chief Police Officers, HateCrime: Delivering a Quality Service, March 2005, para 2.3.7. Back

327   Ev 397, para 57. Back

328   Ev 397, para 60. Back

329   Q 145. Back

330   Ev 169. Back

331   Ev 166-76, Annex 3, para 44-53. Back

332   Ev 167, 3.1. Back

333   Ev 169, 4.1. Back

334   Ev 173, Annex 3, para 52. Back

335   Ev 144, 215. See also Ev 82, 334. Back

336   Department of Health, Improving Health, Supporting Justice: A Consultation Document, A strategy for improving health and social care services for people in the criminal justice system, 27th November 2007, pp 20-1. Back