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Vulnerable defendants in court

Minutes of the joint meeting of the All-Party Parliamentary Group on Penal Affairs and the All-Party Parliamentary Group on the Magistracy held on 19 October 2015 at 5.00pm in Committee Room 1


Rt Hon Alistair Burt MP—Minister of State for Community and Social Care, 
Department of Health
Mignon French JP—Chairman of Magistrates’ Association Mental Health and Learning Disabilities Working Group
Jenny Talbot OBE—Director, Care not Custody programme, Prison Reform Trust
Anthony Fletcher—Member of the Working for Justice Group


Lord Ramsbotham (Chair)
Lord Ponsonby (Chair)
Lord Bradley
Lord McNally
Lord Woolf
Lord Dholokia
Baroness Healy of Primrose Hill
Rt Hon Norman Lamb MP
Sarah Champion MP
Baroness Masham
Baroness Hollins

Lord Ponsonby, Chair of the All-Party Parliamentary Group on the Magistracy, opened proceedings and welcomed everybody to the meeting. He introduced Mignon French, Chairman of Magistrates’ Association Mental Health and Learning Disabilities Working Group.

Mignon French: Good evening. I’d like to spend the next few minutes thinking about vulnerable defendants in court, but from a magistrate’s perspective, and what we can do to support them. First I’d like to talk about Lord Bradley’s review in 2009 and the two recommendations that he made for the magistrates; to think about the national liaison and diversion service; appropriate information for the magistrates coming into court; appropriate community sentences for vulnerable people; and then the role of the local mental health and learning disability services.

There are a number of challenges that magistrates face when unaccompanied vulnerable defendants come into court, particularly around awareness and understanding of mental health and learning disability—as highlighted in Lord Bradley’s report, which enable magistrates to identify defendants who need more support. Magistrates are lay-people and we sit in the court once or twice a month, and because of that we need clear and concise training and support material. To address this, the Magistrates Association and the Prison Reform Trust have and are continuing to develop material to support the judiciary.

Information is of vital importance. When a defendant comes into court it is important that relevant information is made available to support any decision that has to be made. Many times unfortunately this doesn’t happen, and this can result in a case needing to be adjourned or put back, causing unnecessary delay to proceedings. This can cause further distress to the victim and their families, and defendants.

Some of the sentences we’re discussing today are community sentences. But if the defendant is vulnerable it’s often difficult to find an order that supports the defendant as well as addressing the offending behaviour and the reasons for their offence—which is often tied in to their vulnerabilities.

There are 12 community orders available to us. One of which is the mental health treatment requirement, but this is only used in 0.1% of all court orders. We also now have the RAR, the Rehabilitation Activity Requirement, which could if developed deliver low level support for people with vulnerabilities. On the way in there were some examples for you to pick up highlighting pilots sites which are working, particularly on the mental health treatment requirement, and a RAR that’s working in Bristol for people with learning disabilities.

About two months ago the Magistrates Association commissioned a survey for just under 400 magistrates. The survey was split into two areas; magistrates who have active liaison and diversion services in their courts; and areas that didn’t. What the survey showed overwhelmingly was that the information received about defendants, the increased confidence of the magistrates, and the learning disability services themselves were informing court decisions. We can see that having a liaison and diversion service in the area significantly improves the way that the court services are working.

I’d like to share a case where a young lady was seen in an area where a liaison and diversion service wasn’t embedded, to give you an example of some of the issues that are faced when we don’t have some of the services talking to each other. Claire is 24 and was diagnosed with a number of vulnerabilities, including autism, learning disability, attention deficit disorder, and she was recently released from hospital after being kept on a mental health exception. She’s also had issues and previous convictions for alcohol abuse. The previous week before appearing in court she was released from a psychiatric hospital and sent to temporary accommodation. She wasn’t able to manage her affairs, so her father was giving her money on a daily basis. But on this occasion her father was going away for three days, and so he gave her three day’s money in one go. A friend in the accommodation found out that she had three day’s money, and it went missing later that day. Claire became verbally abusive to the friend, which resulted in a public order offence and her having to leave the accommodation. The next day, Claire was seriously sexually assaulted.

Claire was listed to appear in court that following Friday morning on the public order offence. The magistrates did receive some information about her, and were concerned that there didn’t appear to be any support for her in the court, so they called the local mental health team and asked for their advice. The mental health team hadn’t been made aware of her appearance and said that they would look into the case. Meanwhile, Claire—remember she has a learning disability, hadn’t been given any information at all, she was just told to turn up, but she forgot, so she didn’t appear in court that morning and warrant was made for her arrest. Claire was arrested on Friday evening and held in police custody overnight, but during the Friday evening she was seen by a CPN who felt that she was fit to come into court on her own and that the issues to do with Claire were down to alcohol, not mental health, therefore the mental health team could not offer her any help and needed to be seen by the substance misuse team.

She arrived in court on Saturday morning looking tired, dishevelled and very clearly had a learning disability. The magistrates asked if there was an intermediary present, but there wasn’t. The bench felt that this young woman wasn’t having her needs met by the statutory services and that she needed help with housing, finance, mental health, and substance misuse teams. The case was adjourned for a probation report. The bench asked if the probation service could develop a joint report from both the alcohol and mental health team so that they could jointly agree how Claire’s needs could be met. But the bench was told that the services work independently, and it would be up them to talk to each other, if they felt appropriate.

I wanted to highlight this to show the differences where areas are working well together with fully integrated liaison and diversion services, and service that aren’t yet there. That’s why we need to have, not 50% coverage of liaison and diversion services, but 100%.

Where we have liaison and diversion services in place it has a significant impact on the court; there is a continuing need to look at appropriate community sentences and integrated local service provision.

Lord Ponsonby thanked Mignon French for her presentation and welcomed Alistair Burt.

Alistair Burt apologised that he had to be brief, as he had to leave for a meeting with the Secretary of State on priorities for mental health. The two things you want to know out of this are: firstly, that you have a minister who is interested in this, I have a legal background, and was minister for disabled people over 20 years ago. I have been brought back to be involved in this area, so I’m interested in this from all different angles; and secondly, you want a sense of continuity. Norman Lamb is here and so I will say in front of him what I have been saying when he’s been out of the room for the past four or five months. I’m very proud to follow him and very keen to give people a sense that what has been achieved over the past five years by the coalition government, we’re determined to keep going. The Prime Minister mentioned mental health and its importance within the first minute of me being in his presence when he gave me the responsibility.

I think sometimes when a government changes or in these unusual circumstances, part-changes, and a new minister comes in, you get a sense that people want to identify themselves by a whole series of whole scale changes, because that’s the way that we prove we exist. I’ve never been of that stamp and want to give people a sense that when there are good things going on you continue them. It doesn’t mean any lack of ambition, because what you’re picking up on in this particular case is good work, raising the profile, raising interest and being very determined to say that we can do still better, and that’s what you want to do. That’s the determination. Where practice is poor and things are wrong, that is what I want to change.

One of the areas of my portfolio that I’m most concerned about is the identification, support and treatment of people with mental health problems, learning disabilities and other vulnerabilities in the criminal justice system. In 2009, Lord Bradley’s report laid bare the true scale of the issue, by stating that a large proportion of prisoners have a range of very complex needs, including a high number who are suffering from mental health problems or learning disabilities. The figures are stark, an estimated 39% of people detained in police custody have some form of mental disorder, and over 90% of prisoners have a significant diagnosable psychiatric disorder. On learning disabilities 7% of adult prisoners have an IQ below 70 and a further 25% have an IQ in the range of 70–79. It’s generally acknowledged that between 5 and 10% of the offender population has a learning disability.

To often, people with a mental health illnesses or a learning disability who come into contact with the criminal justice system are only identified when the reach prison. This is exactly why Keith’s [Lord Bradley] report back in 2009 called for a new national liaison and diversion service, working across our courts and custody suites, to get people the right support and treatment as soon as possible. Diverting the individual away from offending, reducing the offending, and enabling employment benefits everyone.

Liaison and diversion services are now operating across the country, covering some 50% of the population of England. Intervening at the early stages when vulnerable offenders are first identified. Liaison and diversion services can help them get suitable support and treatment, and can ensure that any charging or sentencing decisions are based upon the most up to date assessment of their mental health, their learning disability, or whether they have a substance misuse issue.

Liaison and diversion services can help limit the number of court hearings, avoiding costly adjournments and periods on remand. In some cases, where it’s appropriate, they are able to divert vulnerable offenders away from the criminal justice system entirely.

The benefits of liaison and diversion are clear. If we address the needs of people as early as possible, as soon as they come into contact with the criminal justice system, then this is more likely to lead to appropriate referrals to health services, reductions in future arrests, and in the use of police and court time. And of course the more preventative work that’s done earlier than that, to prevent people even getting near the criminal justice system, the better.

Liaison and diversion services have a crucial role to play in improving the outcomes and life chances for individuals. This is so acutely demonstrated in the case of the young woman who committed suicide after release from prison for theft. In his report, the coroner suggested that had liaison and diversion services been available in her area at the time, the outcome may have been very much different. So not only do liaison and diversion services improve lives, they save lives too.

Results from the liaison and diversion trials have been promising. During the first year of the new service specification, adults, children and young people engaged with the services in over 18,500 cases. Liaison and diversion intervention resulted in more than 5,000 referrals to health and support services.

Currently there are 25 sites across the country, covering around 50% of the population, trialling the standard operating model for liaison and diversion services to make sure that the quality of service is consistent. The department commissioned an independent evaluation of liaison and diversion services, which is expected to be published later this year. The evaluation found that liaison and diversion services are of great value to police and enable them to confidently deal with people with mental health, learning disabilities, substance misuse, and other vulnerabilities. Where vulnerable people do go to court, the evaluation shows that the services are valued by court staff and the judiciary, in terms of taking account of vulnerabilities, which enables them to make greater use of community disposals.

So it is our intention that full roll out of liaison and diversion, to cover the whole population of England, subject to submission of full business case to the Treasury this autumn to coincide with the Spending Review. But it is our intention to see that rolled out.

In conclusion, our ambition must be to end the scandal that so many people with mental health problems and learning disabilities spend long periods in prison without the support they need, wasting lives and opportunities. Liaison and diversion is the means to focus the health and justice systems on that aim. Improving the life chances and opportunities for offenders by improving both health and justice outcomes, whilst reducing crime and reoffending, and increase the effectiveness of the youth and adult justice systems.

So you are talking to a convert in relation to liaison and diversion. That would be my principle message to you.

Lord Ponsonby thanked Alistair Burt for his presentation and opened up the meeting for questions.

Norman Lamb We were hearing earlier that the mental health community orders that can be made, but they’re made in a tiny number of cases. Recent pilots in Milton Keynes, which appear to be showing very positive early signs, to stop people unnecessarily serving prison sentences if they can have their mental health issue treated outside prison, and it can work in coordination with liaison and diversion services. There needs to be a concerted push from the Department of Health to get the Ministry of Justice to take it seriously. There are these trials, but there’s no reason why everywhere shouldn’t be using something that’s already available in every court. I wondered if there was anything you could do to really ramp up the pressure to get this type of sentence used far more.

Alistair Burt I don’t know yet, because I don’t know all the tools available to me, and of course as you well know, trying to encourage someone in another place to follow something that you’ve already agreed is a good idea. It needs a little bit of time and effort, and finding champions within that particular area to say this is a good thing. I think you might be able to help me with the work by identifying who would be the champions within the Ministry of Justice to say this is going to pay dividends for us. Dividends in the widest possible sense, it’s not about finance, it’s about transforming lives.

Norman Lamb When the former Deputy Prime Minister set up the mental health taskforce this was something which was identified by the Ministry of Justice as something that could be done as part of their contribution to improving the way the government deals with people with mental health issues. So there is at least theoretically an appetite for this within the Ministry of Justice, I think it probably requires a degree of pushing from you to make things happen.

Alistair Burt I’ve picked this up and my Private Secretary has made a note as well. So that’s a positive outcome from this that I can pick up on.

Mignon French I’d also be happy to pick this up with you.

Baroness Masham Where do you find those with personality problems fit in?

Alistair Burt I met with a group up in Derbyshire and spoke about this. My sense is, but I might need further guidance on this, that there hasn’t been enough to identify and distinguish. That those who come within the ambit of needing a different sort of approach in the justice system that would normally be given, the need for early identification and prevention of being put in the wrong place is absolutely key. As I said, gratified though I am about this work, I think that there’s work to be done even earlier in the process of identifying people, and that’s very much what we’re committed to.

Lord Ponsonby thanked Alistair Burt for his contribution

Lord Ramsbotham Could I just make just one brief intervention as the Chairman of the All Party Penal Affairs Group? We’ve got a vacancy for Vice-Chair of the group. We have obeyed all the rules and announced the election and nobody else put their name forward other than Norman Lamb, and so I’d like to declare that Norman has been duly elected as Vice-Chair of the All Party Parliamentary Group of Penal Affairs.

Lord Ponsonby Well in a similar spirit for the All Party Parliamentary Group for the Magistracy, we have three new officers to the group; that’s Lord Ramsbotham, Lord McNally and Baroness Hamwee who have been duly elected to the group.

Moving on to Jenny Talbot and Anthony Fletcher

Jenny Talbot I’m from the Prison Reform Trust and I’m joined by Anthony Fletcher from the Working for Justice Group. Anthony’s going to talk about his experiences of appearing before the criminal courts, and I’m going to say a few words about liaison and diversion services and the Care not Custody coalition.

Anthony, there are 12 members of the Working for Justice group. What are the things you have got in common?

Anthony Fletcher We’ve all got a learning disability. We’re all receiving help from KeyRing. And we’ve all been in trouble with the police.

Jenny Talbot And why are you a member of the Working for Justice group?

Anthony Fletcher To stand up for our rights and to change the law.

Jenny Talbot You say you get support from KeyRing. What sort of support do you get?

Anthony Fletcher I get help to stay out of trouble, and to make sure that I pay all my bills and keep on the straight and narrow.

Jenny Talbot Okay, so you live independently, but you sometimes need a bit of support.

Anthony Fletcher Yes

Jenny Talbot Can you tell us a little bit about what court was like for you Anthony?

Anthony Fletcher I didn’t know anything about the fine. I was living on my own and a friend came to stay with me. Unfortunately my friend went, but he ran up debts in my name. The police came knocking on my door and said “you’re under arrest for non-payment of fine”. So they took me to the police station and they asked me all these questions, and I was like “yeah, yeah, yeah” because I was half-asleep and didn’t understand. So I went to court and it was the most scariest thing I’ve ever done. Standing up in front of the judge, I didn’t understand what the judge was saying, because he was speaking jargon, like long words and I didn’t understand, so I wasn’t really paying attention. I had a duty solicitor but unfortunately they had to go somewhere else, and so I had someone else and they didn’t know anything about my file. So I got sent to prison for two weeks for non-payment of fine. I didn’t understand what the judge was saying, he was like speaking in a foreign language, and not looking at me.

Jenny Talbot What do you think might have helped, Anthony?

Anthony Fletcher Having a support worker by my side to explain what’s going on and if I understand, and speaking to the judge, saying to the judge that I’ve got a learning disability.

Jenny Talbot One of the difficulties for magistrates is recognising when defendants have particular support needs. It’s not always obvious, especially on limited acquaintance, when, for example, a person has a learning disability, or autism, or a mental health condition that might affect their ability to participate effectively in court proceedings. In a verbally mediated environment, such as a criminal court, effective communication and knowing when an individual has speech, language and communication needs is essential.

The Prison Reform Trust did some research a little while ago, which found that two-thirds of prisoners with learning disabilities or learning difficulties experienced problems with verbal comprehension, including difficulties understanding certain words and in expressing themselves. Around half said that they had difficulties making themselves understood. Just to demonstrate what that actually means in practice, I want to read three short quotes from the research from three prisoners speaking about their experiences of court:

“I couldn’t really hear, I couldn’t understand but I said ‘yes, whatever’ to anything because if I say I don’t know they look at me as if I’m thick. Sometimes they tell you two things at once.”

“I didn’t know what was going on and there’s no one to explain things to you. They tell you to read things in court, and you can’t just ask for help. The judge thinks you can read and write because you speak English.”

“I couldn’t understand them. They talk so fast, them jumping up and down saying things. I gave up listening.”

Now clearly such experiences are not what anybody wants to happen in a court of law, which is why liaison and diversion services are so important. I’m not going to repeat what everybody else has said about liaison and diversion but it seems to me there are three key factors here.

First liaison and diversion services are important because they will help criminal justice staff to identify when an individual has a mental health or learning disability, or related support needs.

Second, having identified support needs, liaison and diversion staff can alert criminal justice staff and members of the judiciary of the need for reasonable adjustments – in this context, for defendants in court.

This in turn will help to ensure that people like Anthony not only have fair access to justice, which is their entitlement, but that they are also held to account for their alleged offending, which is equally important.

The Care not Custody coalition was convened in 2011 by the National Federation of Women’s Institutes and the Prison Reform Trust. It comprises of a wide range of allied professional groups and charities, representing over two million people across health, social care and justice. The coalition has watched the progress of liaison and diversion services and is encouraged by the 53% population coverage, but most importantly the impact that these services have on helping to ensure access to support and proper access to justice for individuals with particular needs caught up in the criminal justice system. The decision to roll out liaison and diversion services across England, which will be made by the Treasury this autumn, has the potential to make a real difference.

Lord Ponsonby opened up the meeting for questions.

An observer at the meeting asked about alternatives to custody for people on the autism spectrum as her son is currently facing the prospect of a prison sentence for a sexual offence.

Mignon French said that autism did fall within the guidelines of a mental health treatment order.

Jenny Talbot said that there is an adapted sex offender treatment programme for people on the autistic spectrum and offered to discuss the issue further after the meeting.

Another observer identified herself as a commissioner of substance misuse services who had previously worked in prisons. She explained that people often fall through the cracks of mental health and substance misuse services when they have both issues. She explained that mental health services were not keen to work with people who were still currently using drugs, and that for many people their mental health problem was the reason for their self-medication. Until services are compelled to work together this will continue.

Baroness Hollins I’m a former president of the Royal College of Psychiatrists and child psychiatrist. I used to run a sex offender treatment programme for people with learning disabilities but it was closed down when I retired. There are a shortage of services for child and adolescent mental health services. I heard a case this week of a child who has been on the waiting list for treatment and has been told that by the time he reaches the top of the list he will no longer be eligible as he will be too old, but is unable now to go onto the adult waiting list because he is a child. One of the problems is that mental health is often thought of as being serious mental illness, when actually every one of us mental health and physical health which may need treatment.

Jenny Talbot What we know about children in custody is that many of them have speech, language and communication needs and very high numbers have low IQs, which can make it even harder to access the services that are available.

Lord Ponsonby My observation as a layman working in court is that young people are much more reluctant to acknowledge any mental health issues than older people.

Mignon French asked David Burt whether liaison and diversion services covered adolescents as well as adults. He confirmed that they did. Which should hopefully address some of these issues in future.

Lord Dholakia raised concerns about the need for services to be responsive to the needs of black and minority ethnic communities and the importance of performance monitoring of the liaison and diversion services.

Lord Bradley At this crucial time I think that the Minister was very encouraging and we should support him in his endeavours to ensure 100% roll out. Liaison and diversion is really effective if there are services for people to be diverted to and that the support in local communities is there.

Lord Ramsbotham highlighted research from Professor Charlie Brooker that only 17% of Clinical Commissioning Groups have responsibility for healthcare for those on probation.

Baroness Hollins What help do magistrates get so that they can identify when someone before them who might be having trouble in understanding the court process?

Lord Ponsonby Mental health coordinators are in place to raise awareness amongst magistrates, but you would hope that these matters were picked up before court. I recently had a case with someone with Asperger’s who had committed a sexual offence. He wasn’t going to prison but I had to ensure he understood what was meant by a restraining order and what the consequences were if he breached it. It’s down to us as individuals, and I certainly take it very seriously, and I imagine other colleagues to well.

Mignon French highlighted the recent Magistrates’ Association’s mental health and learning disability group which is putting mental health champions in place in all MA areas, with 75% coverage across the country currently.

Claire Harris, a Magistrates’ Association mental health champion, said that part of her role is to ensure that magistrates are aware of the liaison and diversion services are available in the area, acting as a broker between the court so that services feel comfortable to come to court and work together when there are concerns about an individual.

Jenny Talbot The Royal College of Speech and Language Therapists have written a new section for a resource that the Prison Reform Trust and Rethink Mental Illness have developed, which precisely focuses on those areas that Baroness Hollins raised.

Lord Ponsonby thanked the speakers for their contributions and closed the meeting