Response to MoJ consultation on community sentences

1. Response to consultation: ‘Punishment and Reform: effective community
sentences’
As a group that includes family carers and people who work with people with learning
disabilities we are very pleased to have an opportunity to comment on these proposals.
Overview
Research shows that:
• 23% of young offenders have very low IQs of less than 70 (Harrington and Bailey,
2005)
• 60% have communication difficulties that will affect their ability to understand certain
words and to express themselves (Bryan, 2004)
• 20-30% of all offenders have learning disabilities or difficulties that impair their ability to
cope with the criminal justice system (Loucks, 2007).
There is growing evidence of an increasing number of prisoners with fetal alcohol
spectrum disorders – particularly young people, who are at great risk of becoming
‘revolving door’ prisoners (Meier, 2008; Carpenter, 2010). Diversity within the population
of offenders with learning disabilities (for example, the different risks to and experiences of
women, ethnic minorities, older people and people with different sexual identities) and the
impact of multiple disadvantage is under-researched.
The challenges faced by prisoners with learning disabilities were thoroughly described by
the Prison Reform Trust’s ‘No One Knows’ project (Talbot, 2008). Smith’s work in Leeds
(2011) showed that it was common for offenders with learning disabilities to have received
multiple short sentences, without adequate support or clear pathways to tackle housing,
employment, relationship and behavioural problems.
Our own work with criminal justice agencies shows that some key systemic problems
remain, notably:
• failure to identify offenders who may have learning disabilities: the Learning Disability
Screening Questionnaire (LDSQ) is being rolled out across the adult prison estate
following the recent pilot conducted by the Department of Health, but reliable
identification is required much earlier in the system (e.g. in police custody) to enable
earlier intervention. No such tool has yet been agreed for the youth justice system
(although the authors of the LDSQ have recently published an equivalent for young
people – CAIDS-Q)
• failure to implement ‘reasonable adjustments’ to processes, policies and systems
(under the Equality Act) consistently to reduce disability discrimination at all stages,
from initial contacts with police through to resettlement from prison. For example, a
reasonable adjustment for a prisoner who cannot read because of his learning
disability would be to offer alternative ways of requesting a health appointment. There
are good examples, but they are not systemic
• linked to this, a failure to think through and deliver the types of support required to
enable offenders with learning disabilities to address their offending behaviours and
build the resources (accommodation, employment, relationships) that are known to
reduce the likelihood of re-offending. The support should include access to treatment
programmes and offending behaviour programmes that have been adapted
appropriately, together with tailored support from services that specialise in working
with offenders – backed up by specialist services such as community learning disability
teams.

2. Prisoners with learning disabilities are at increased risk of mental health problems
compared to the rest of the prison population: for example, the Prison Reform Trust
estimated rates of clinically significant anxiety and depression as being at least twice as
high (Talbot, 2008). So attention to any mental ill health is undoubtedly required. However,
conceptualising their sentencing options purely in terms of treating mental ill health is
inadequate. People with learning disabilities typically have difficulties with cognitive and
social skills that require support rather than treatment. For example, difficulties with
understanding time, questions and instructions are all likely to jeopardise a person’s ability
to comply with the requirements of a community sentence. Extra support will be required
to ensure that offenders with learning disabilities are not unfairly excluded from community
options. As it is common for people with learning disabilities to have mental health
problems (see above) and/or autistic spectrum disorders, such support needs to be
carefully tailored to each individual’s needs.
Tough and effective punishment
We welcome the proposed focus on developing the use of community sentencing – short
prison sentences do not have a good track record in terms of reducing re-offending. We
do not want offenders with learning disabilities to be excluded from punishment (where
they have capacity to understand and participate effectively in the judicial process).
Neither do we want people with learning disabilities to be diverted into health services as a
‘default’ option. Clearly this may be appropriate for someone who requires treatment for a
mental health problem, but it should not simply be an alternative form of custody in which
a person may in fact serve a longer sentence.
It will be vital to success that courts have confidence in community options – they must be
satisfied that the implications of an offender’s learning disability will be understood and
appropriate ‘reasonable adjustments’ offered. Courts will require good systems to identify
offenders with learning disabilities, understand the implications of their disabilities and
structure effective sentence requirements with appropriate support – this will require an
integrated approach to offender management. For example, extra support may be
required to ensure that the offender:
• has understood the offence they have committed
• understands what they must or must not do to comply
• is in fact able to comply (e.g. is able to tell the time, find their way to a specified
destination and carry out specified activities)
• understands the consequences of breach.
A report from the Revolving Doors Agency (2012), as part of the Big Diversion Project in
the North East, noted there was a risk of sentences being imposed with which the offender
could not comply.
In addition those who are supporting the offender (e.g. family carers, social care staff)
need to understand the terms of the sentence and the consequences of breach: we have
heard of examples where this was not the case, with the result that the offender was
discouraged from complying. Extra support may also be needed to help an offender with
learning disabilities to avoid continued exploitation by so-called ‘mates’ where this has
been a factor in their offending behaviour.
This will require co-operation between criminal justice agencies and health and social care
services locally to ensure that community sentencing is developed in tandem with the
availability of support and access to appropriate behaviour programmes and treatment
options. One of us is working with the National Offender Management Service and the

3. Department of Health on a project to improve access to one of the offending behaviour
programmes, to make it inclusive of offenders with learning disabilities. We believe there
is scope to apply this type of adaptation more widely – there is currently a shortage of
structured programmes aimed at this group. Services that are geared up to working with
offenders in community settings are not necessarily skilled in working with people with
learning disabilities and making the types of reasonable adjustment required; learning
disability services are not necessarily skilled at working with offenders. Joint work is
needed, especially as not all offenders with learning disabilities will meet the eligibility
criteria for specialist learning disability services.
We strongly agree with the proposal to tailor the terms of community orders to the specific
circumstances of the offender. We note that it may be possible to make exceptions for
offenders who may not be capable of certain aspects of a sentence, but would strongly
encourage the approach of offering adequate support to increase their capability rather
than, for example, deciding that a person with learning disabilities is unable to work.
We recognise that options such as Intensive Community Punishment and the types of
support and reasonable adjustments we have advocated can be resource intensive –
however, this needs to be compared with the waste of resource represented by ‘revolving
door’ short custodial sentences. If an ‘average’ year in prison costs around £40,000, and
repeated costs from other elements of the pathway are added (police and courts), a
considerable amount of money could be spent on community based alternatives – to
better effect.
Reparation and restoration
Restorative justice
We think that restorative justice approaches have much to offer offenders with learning
disabilities and could play a very valuable role in enabling so-called ‘low level’ offenders to
understand the impact of their actions and address their offending behaviour. We believe
many offenders with learning disabilities would find the experience of restorative justice
processes a more powerful learning experience (more personal, understandable and
concrete) than more traditional forms of punishment. Again, they will need support with
this – in understanding and complying with what is required and in learning from the
experience so as to reduce the likelihood of re-offending. Guidance and training will need
to be explicit about ways of supporting offenders with learning disabilities to take part, so
that their victims have an equal chance of benefiting.
In addition, if participation in pre-sentence restorative justice is to be taken into account in
sentencing (implying that failure to participate could result in a more punitive sentence),
failure to support offenders with learning disabilities to participate would be discriminatory.
Victims
As noted above, restorative justice should be equally available to victims of offenders with
learning disabilities and this implies that such offenders should be supported to
participate.
We welcome the increased focus on Victim Personal Statements. People with learning
disabilities report very high incidence of bullying, harassment and hate crime. The impact
of such behaviour on individuals and their families is often under-estimated (sometimes
with fatal results, as in the case of Fiona Pilkington and her disabled daughter). The
opportunity to make a statement that will be taken into account in determining the

4. seriousness of an offence will be helpful. The recent ‘Loneliness + Cruelty’ report from
Lemos & Crane and the Foundation for People with Learning Disabilities (2012) showed
that over 90% of the people interviewed had experienced harassment, abuse or related
crime. “Many want reparation: for the cruelty to stop and for perpetrators to understand
the impact of their behaviour and to apologise for the hurt caused”. As in other aspects of
contact with the criminal justice system, victims with learning disabilities will require good
support to make use of this opportunity.
Rehabilitation and reform
We welcome specific attention to the needs of women offenders, recognising that many
have multiple and complex problems including mental health problems, substance misuse,
and histories of abuse. We argue that similar attention needs to be paid to offenders with
learning disabilities, who are equally likely to have a similar complex mix of issues, in
order to ensure that they are included equitably in proposals for alternatives to custody.
We strongly agree that offenders with learning disabilities need a robust plan and a
consistent relationship with a supervisor. A colleague describes this as a ‘watchful eye’ – a
relationship that incorporates both support (to understand what is required and to comply)
and monitoring/controlling. Many offenders with learning disabilities receive short
sentences and do not therefore benefit from probation supervision on release; an
approach like this could improve their chances of not re-offending. We note the recent
report from HMI Probation (2012), which commented that electronic tagging was not used
strategically enough as one element in robust offender management.
‘Circles of support’ offer a useful model. A circle is a group of people (usually unpaid, but
possibly including paid workers) who offer support to a person to help them achieve their
goals. Purposeful creation of such circles may be particularly important for people with
chaotic or broken relationships, and for young people who have been in the care system.
Research has demonstrated the value of the supported employment model, which focuses
on getting people into work and supporting them in it (e.g. via job coaches) rather than
perpetuating the ‘revolving door’ of training that never leads to employment. Many people
with learning disabilities have difficulty with transferring learning from one setting into
another, which makes the supported employment approach particularly appropriate. Its
value has also been demonstrated clearly for people with mental health problems.
However, securing these potential benefits will require investment in support to ensure
that offenders with learning disabilities are not excluded, nor set up to fail. Work Choice
and the Work Programme will need to take this learning into account if they are to provide
successfully for offenders with learning disabilities (including young offenders).
Housing and health care are also key components of the systemic approach required to
ensure that community alternatives to custody are effective. Again, we believe there is a
need to bring together those with expertise in working with offenders and those with
expertise in working with people with learning disabilities. Mental health, alcohol and drug
treatment programmes need to make reasonable adjustments to include people with
learning disabilities. For example, practice guidance is available on making cognitive
behavioural therapy accessible to people with learning disabilities, but this is still not
widely available.
Although payment by results is not a consultation point in the paper, we would like to point
out that there is a risk that roll-out of payment by results approaches to a wider range of

5. services could result in providers ‘cherry picking’ and avoiding offenders who need more
support. Clearly this could be discriminatory and we hope that development of such
schemes will ensure that offenders with learning disabilities are not disadvantaged.
Conclusion
A recent study showed (Wheeler et al., 2012) that key factors distinguishing offenders
from non-offenders in a population of people with learning disabilities were:
• broken social and emotional relationships and victimisation
• lack of occupation or structured activities
• isolation.
We believe that community sentencing and restorative justice have great potential to be
effective for people with learning disabilities. It will require investment to ensure they can
work for this population – attending to the factors listed above and to the reasonable
adjustments likely to be required - but this is still likely to be cheaper than recurrent prison
sentences.
Alison Giraud-Saunders
22.6.12
On behalf of a group of family carers and organisations and individuals working with
people with learning disabilities:
Dave Barras, Chief Executive, Positive Support in Tees CIC
Samantha Clark, Chief Executive, Inclusion North
Janet Cobb, Facilitator, UK Forensic & Learning Disabilities Network
Alison Giraud-Saunders, independent consultant
Rob Greig, Chief Executive, NDTi
Bill Love, NDTi
Rachel Mason, family carer
Fiona Ritchie, Associate Director, Worcestershire Health & Care NHS Trust
Steve Scown, Chief Executive, Dimensions
Steve Strong, NDTi
Sue Turner, NDTi/Improving Health & Lives
Cally Ward, family carer
Contact details for correspondence:
Alison Giraud-Saunders
E: alisongs@btinternet.com
M: 07721 843290