Lost in the Criminal Justice System: What is Happening to People with Learning Disabilities in Prison?

Lost in the Criminal Justice SystemWhat is Happening to People with Learning Disabilities in Prison?

Guy Taylor investigates the lack of resources devoted to identifying those with learning disabilities and autism in the process of justice

John was sentenced to four years in prison in 2019 for an arson offence. He has severe learning disabilities and the verbal and non-verbal functioning of a five to nine-and-a-half-year-old. On top of this, he suffers from dyslexia, ADHD and autism.

In prison, he struggled to cope. His behaviour was described as “bizarre and concerning” and other prisoners took advantage of him, giving him the psychoactive drug Spice on multiple occasions. 

“I was absolutely astonished by this case,” Andrew Sperling, a lawyer who assisted with John’s parole, said. “The impact of a prison sentence on somebody like him is so awful, not just that he would struggle to manage, but he gets preyed on by other people.”

No formal assessments had taken place up to that point. Throughout his entire time in prison, none of his conditions appeared to be acknowledged or acted upon.

Sperling commissioned a range of psychological assessments for John, which concluded that he should leave prison and be placed in a learning disability unit for the remainder of his sentence. By this point, he was already eligible for parole and nearing the end of his four-year sentence.

“I think he should have had a hospital order,” Sperling told Byline Times. “As soon as I was able to get someone in to see him, they were like, ‘he’s not going to be able to cope in prison, he needs to be in a learning disability unit.’”

John’s trial would have been extraordinarily confusing. Given little additional support, he would have struggled to understand even the most basic concepts articulated by his solicitor or the judge, and would have had difficulty communicating effectively. His autism would have made the uncertainty of a long, drawn-out court case hard to manage.

“I was amazed at what could have happened at the trial, when I met the guy… he wasn’t able to grasp really, really basic concepts… if he was as bad when I saw him as he was at the time of trial, I can’t believe he was convicted,” Sperling said.

In 2008, Lord Bradley was commissioned by the Government to investigate the experience of people with mental health problems and learning disabilities in the criminal justice system. The Bradley Report was released in 2009 and raised concerns about psychological assessment and screening. Ministers committed to publishing an action plan six months later.

The previous year, the Prison Reform Trust had concluded their landmark study entitled ‘No One Knows’, which exposed issues surrounding the treatment and identification of inmates with learning disabilities and difficulties. Criminologists at the time called for mandatory screening to stop people slipping through the net.

Yet, nearly a decade-and-a-half after these issues were raised in Parliament, stories like John’s are repeated across the prison system.

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Invisible People

Using data acquired through Freedom of Information (FOI) requests, Byline Times mapped the number of inmates recognised as having a learning disability, learning difficulty or autism, and compared these figures to those estimated in academic studies. This exclusive analysis suggests that thousands of prisoners could be lost in the system.

Academic studies have estimated that 7% of prisoners have a learning disability, with a quarter having a borderline learning disability or learning difficulty. Nearly one in 20 (4.4%) are estimated to have autism.

Responding to Byline Times’ requests, NHS England, which provides prison healthcare in England, disclosed that 17 prisons currently recognise none as having a learning disability out of thousands, while a further 10 recognise only one. 13 prisons recognise 0 inmates as having a learning difficulty of any kind, with a further 8 recognising only one. This would include conditions such as dyslexia and ADHD.

Byline Times also requested data from NHS trusts, covering 39 individual prisons. Not one recognised 7% of inmates as having a learning disability, and most fell well below. Some conflated learning difficulties and disabilities in their data, yet still did not meet the 7% figure. Only one recognised more than 4.4% of its inmates as autistic.

To acquire this data, most trusts and NHS England used a flag in an inmate’s health record, which indicate signs of a learning disability or difficulty. This means that the numbers uncovered by this investigation do not always equate to a formal diagnosis.

Total figures provided by NHS England for 2021 reveal 2,257 inmates as having a learning disability. Using the 7% figure, this would leave more than 3,000 inmates lost in the system. NHS England could not provide overall figures for those with learning difficulties or autism.

Byline Times heard numerous other stories like John’s.

One man was initially sentenced to a minimum term of two years for a robbery offence. He was first diagnosed with autism seven years after his minimum term ended and moved to a hospital unit. Before diagnosis, he moved prisons 23 times and repeatedly self-segregated, as he “could not cope on normal location”.

A further five years passed until he was assessed by a forensic psychologist, who concluded that he had an additional personality disorder. Like John, his case had already been referred to the Parole Board by this point.

They recommended that he could be released if a plan was developed. However, his case was adjourned several times due to delays in assessments, as well as the “inadequacy” of release plans.

His family, the victims of his initial crime, told their lawyer they were unhappy about how long he has been incarcerated. From a two-year minimum term, he had now been held in prisons and hospitals for nearly two decades.

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Court Delays

Criminal lawyers who spoke to Byline Times described the difficulties and delays in accessing psychological assessment and reports for clients with complex conditions, increasing the likelihood of cases being missed.

Many said that the situation had worsened in the last 10 years, with one describing the pace of assessment as “so slow, negligently slow in some cases”.

This can be particularly problematic with lawyers who do not have an expertise in handling these cases. They are less likely to put in the significant extra effort to get an assessment at trial, or to acquire additional support for a defendant. They may miss the signs entirely.

Graeme Hydari, who has won awards for his work with defendants with learning disabilities and autism, said: “I’ve taken over cases from other firms where nothing had been done – no assessments, no applications for intermediaries, in cases where all of that should have been done.” Intermediaries are used to help defendants communicate effectively in court.

He said that he knew of firms who “turn away people with complex needs, unless it’s a really serious case, or a big case as they might decide it’s more trouble than it’s worth”.

Another barrister, who preferred anonymity, said that “a lot of people don’t even look at learning disabilities or learning difficulties at all”.

A common issue raised was cuts to legal aid, which lawyers say have resulted in a smaller pool of experts available for trials. Increasing workloads, caused by these cuts and the ongoing backlog of cases, have also added to the likelihood of conditions being missed.

“The system is now much more geared towards getting people through quickly,” the barrister added.

Alex Preston, of Ollier’s solicitors, described the difficulties in accessing psychological assessment for autistic clients: “Quite often I’ll ring up a psychologist and they’ll say I need three or four months to do a report. That can be very difficult, because courts are reluctant to adjourn for that length of time – particularly magistrates courts. So often the pressure is just to crack on and deal with things without.”

Forensic psychologists echoed this sentiment for learning disabilities and autism.

Dr Ruth Tully, of Tully Forensic Psychology said that “access to formal assessment and diagnosis can involve a long wait and may not be accessible in time for the court proceedings” and that “expert assessment often relies on public funding applications being made, which are not always successful. Even with increased awareness of these conditions in the present day, I still see cases where the need for diagnostic assessment is clear, yes this has not been done.”

“Although I can’t go into detail about any specific case, my team members are often involved in cases where diagnosis of autism or learning disabilities is made late into someone’s prison sentence,” she added.

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An Alternative Path

Professor Glynis Murphy, a criminologist at the University of Kent and former forensic psychologist, has pushed for the Government to offer mandatory screening and assessment for defendants and prisoners, participating in the original ‘No One Knows’ project in 2008.

As a result of her experience as a forensic psychologist, Prof Murphy often receives requests from families to assess relatives on trial or in prison.

One case was brought to her from a mother whose son, referred to as ‘T’, had been arrested. Prof Murphy offered to assess him for the family before the trial ended and he was diagnosed with autism. The diagnosis was used to argue for mitigation and, since then, his life has completely turned around.

Despite criminologists like Prof Murphy repeatedly calling for mandatory screening of inmates, routine measures have not been adopted in prisons, or across the Criminal Justice System.

This has been raised numerous times since 2008. A joint inspection report in 2015 called for the introduction of a screening tool across the prison estate, stating, “we were alarmed that there were extremely poor systems for identifying prisoners with learning disabilities; in one prison we were even told that they could not identify a single prisoner who had a learning disability”.

Murphy told Byline Times that a change in Government in 2010, and the subsequent beginning of austerity, prevented her policy suggestions, and those of her colleagues, from being implemented.

“What we wanted, and it was just before a change in Government, was for it to be made mandatory for all prisons to screen prisoners for learning disabilities,” she told Byline Times.

“But, of course, the Government changed, prisons didn’t bring any routine measures in and there was a lot of argument about which measures they should use… I don’t know that any of them are doing it routinely.

“It was just before the austerity cuts under Cameron came in, and one of the issues is that screening does take resources, but I suspect a bigger part of the problem was motivation.”

Prof Murphy described T’s family’s relief at the diagnosis. “They were phenomenally grateful, because it made a big difference and he’s now on a suspended sentence and has managed to get himself a job,” she said.

Her own emotion about his change in circumstance was obvious: “He now has a job, a great job, his employer knows he has autism and they’ve been really fantastic to him, they’ve just been great.” T wrote her letter in which he thanked her as “I now understand who I am”.

His future now looks optimistic. However, the future of others currently lost somewhere in the criminal justice system remains decidedly less positive.

A spokesperson from NHS England told Byline Times that the Government’s “new all-age autism strategy” focuses on people with a learning disability and autism and sets expectations for all healthcare services, including those operating within the criminal justice system. 

“We are committed to supporting this plan and have robust care pathways in place to meet the needs of prisoners including, implementing the NHS’s national learning disability improvement standards within our commissioned services,” they said. “We are working with all healthcare providers and prison staff to increase awareness of personalised care and continue to support the wellbeing of prisoners.” 

The Ministry of Justice did not respond to a request for comment.

The names of all prisoners and defendants have been changed.