Should I Draw You A Picture?
April 18, 2016 | By Andrew Sperling
Parole, learning disability, autism and fair hearings
In To Kill A Mockingbird, a black man, Tom Robinson, is accused and convicted of raping a white woman. He is represented by a fearless and principled lawyer, Atticus Finch who, despite his best efforts, fails to save his client. Harper Lee’s masterpiece demonstrates how difficult it is to secure a fair hearing. The level of prejudice and ignorance in the society Lee portrays lead us to anticipate a guilty verdict. As readers, we get to be jurors too – the author does not tell us whether Robinson is guilty, but we draw our conclusions from the evidence and from Finch’s well-constructed defence.
A few years ago, I acted for a black man - ‘Jim’ (not his real name) - who had been convicted of raping a white woman. There was no question that he was guilty. He was one of the first Imprisonment for Public Protection (IPP) prisoners. IPPs do not have a fixed release date. They can only be released if they can persuade the Parole Board that they no longer pose a risk of serious harm.
Jim had a very significant learning disability and no idea what his sentence meant. When I first met him, he asked me when he was going home. I explained to him that I had no idea and tried to help him to understand the parole process. He had completed a treatment programme. He had either not understood the programme at all or was incapable of explaining anything about it. He told me that he had ‘learned good’ from it and would ‘never do that again’.
When I visited Jim a second time, he repeated the exact same phrases and asked again when he would be going home. This pattern recurred over three years during which I gradually found out more about him with the help of family members I had tracked down. They explained that he had never been the same since an accident in Jamaica which they thought had damaged his brain. I developed methods of conveying basic information to him including drawing pictures and diagrams and negotiated with prison and probation staff and local authorities to get him to a point where he could make a realistic application for release.
For understandable reasons, it is not easy for prisoners who have committed serious offences to persuade the Parole Board to release them. It often requires years of treatment, developing insight into the reasons for their behaviour then planning and building release plans which manage their risk. This is easier for prisoners who have a reasonable level of education, access to programmes they can understand and the ability to provide instructions to lawyers acting for them. Prisoners with learning disabilities or significant communication difficulties have far more obstacles. It is not easy to negotiate with staff and local authorities when you do not understand who they are or what their roles are. It is not easy to explain a ‘risk management plan’ when you do not have the faintest idea what that is.
Prisoners who are on the autistic spectrum, even those without a learning disability, are likely to find the parole process difficult to navigate. They may have a particular way of understanding the world and interacting with it. This may contribute to patterns of behaviour which can be very problematic in a prison environment and create serious barriers to progress. Two examples:
Many on the autistic spectrum find comfort in the clarity and predictability of rules. If they see rules being broken or ignored, they may be more likely to raise objections. This may not make them popular with other prisoners or staff. It can very often lead to disciplinary issues. Parole Boards will be concerned by prisoners who have lots of disciplinary problems.
The Impact of Cuts to Legal Aid
In 2013 the government implemented cuts to legal aid. Prisoners can no longer have legal aid for help with sentence planning. They can only get legal aid for parole hearings which might lead to their release. Fortunately for Jim he had been released before the cuts were imposed. Unfortunately, he is not the only prisoner with learning or communication difficulties.
I worked for the Parole Board during 2015 on an EasyRead guide to parole for prisoners which is now available in prisons. I am proud of this work, but I am realistic enough to know that it does not go anywhere near far enough to provide fair hearings for prisoners with learning and communication difficulties.
I am aware of a number of hearings which Parole Board members have deferred – often more than once - because they did not feel the prisoner could get a fair hearing without any representation.
The Parole Board does not have power to order that a prisoner should have legal aid for representation. All they can do is to flag their concerns and hope that something is done. A similar problem is faced by other courts and tribunals. Recently, in the Court of Protection, Mr Justice Charles, adjourned four test cases until either the Legal Aid Agency, local authorities or central government agreed to pay for the claimants who lack mental capacity to be represented.
“ … unless the Ministry of Justice and the Department of Health (or one of them) are joined parties, they will continue to seek to avoid any responsibility for the provision of resources … that enable the [court] to meet the minimum procedural requirements and this will cause further delays and difficulties.”
Two charities, the Prisoners’ Advice Service and the Howard League, are challenging cuts to legal aid for prisoners. This case started in 2013 but will not be heard by the Court of Appeal until 2017. Unless the Secretary of State reverses the decision made by his predecessor in the meantime, many more prisoners will have hearings which will fail to meet minimum standards of procedural fairness.
There are steps which could be taken to at least mitigate the problems faced by prisoners. They are not a substitute for skilled and publicly funded legal representation but would be a useful adjunct to it:
1. Developing expertise within the Prison Service, Probation Service and Parole Board about learning disability, autism and the law
The first step to tackling a problem is spotting that one exists. Professionals who work with prisoners need to have some knowledge about learning disability and autism so they can recognise it. There are individual pockets of good practice within the system. This means that fair treatment is a matter of luck. For example, prisoners at Feltham who are on the autism spectrum are likely to receive better treatment than if they were located elsewhere. Feltham has done some ground-breaking work with the National Autistic Society and is the first prison to receive Autism Accreditation.
A prisoner with a learning disability who is serving an indeterminate sentence may be fortunate enough to have a Probation Officer assigned to their case who recognises their disability. They will also need the wherewithal and tenacity to identify which local authority should be responsible for him. They will need to persuade that local authority to assess his needs. They may need to negotiate the labyrinthine world of funding to pay for the support or accommodation he will need to leave prison.
There is a raft of legislation (including the Care Act, Autism Act, Equality Act and Mental Capacity Act) and accompanying guidance which create rights for individuals and duties on public bodies. There is a comprehensive Prison Service Instruction on Adult Social Care which sets out clearly how prisons and local authorities should work together to help prisoners with care and support needs. This legal framework needs to be understood. It is of real value only if it is complied with or there is an effective means to secure compliance.
2. Encouraging ‘reasonable adjustments’ to parole hearings
The Equality Act requires public bodies to make ‘reasonable adjustments’ to avoid discrimination against disabled people. The Parole Board need to make adjustments to enable prisoners who have learning or communication difficulties to participate in their own hearings. This must include changing way the hearing is conducted, particularly the way questions are asked. This requires patience, skill and the willingness to change and adapt practice.
The ‘reasonable adjustment’ duty could in certain circumstances extend to requiring that the prisoner is provided with someone to support them leading up to or even at their parole hearing. The Care Act requires local authorities to provide care and support services for prisoners with eligible needs. When a local authority is made aware that a prisoner may have care and support needs, they have a duty to assess them. Independent advocacy support must be provided by the local authority if it is needed for assessments.
It is less clear whether this duty extends to providing an independent advocate to provide support through the parole process. Local authorities are not flush with funds to pay for this kind of service and may, reasonably, take the view that it should not fall to them to do so.
I have some doubts that there is a pool of skilled, independent advocates out there to provide support to prisoners who need it. Advocates would need to really understand how the prison and parole systems work to provide meaningful support. There is a well-developed system of Independent Mental Capacity Advocates (‘IMCAs’) who are called upon in mental health and Court of Protection proceedings. The IMCA role is to support and represent the person in the decision-making process. IMCAs are rarely, if ever, called upon in parole proceedings. There are prisoners who may not reach the high threshold of lacking ‘capacity’ but may still have a very pressing need for support.
The ‘S’ Word
There is an absence of a co-ordinated strategy. It is not enough to hope for a trickle-down of good practice. Failure to act creates not only unfairness but is costly too. Prisoners with these kinds of problems are incarcerated longer than they need to be. Their cases are endlessly deferred or litigated until someone finally seizes the mantle.
What is needed is a strategy which joins the dots and drives change rather than one which relies on luck and good intentions.
It is not acceptable to turn a blind eye any longer. A civilised society recognises that some people need support and someone in their corner. A civilised society does not leave people like Jim to fend for themselves.