The legal profession has been up in arms over the proposed introduction of price-competitive tendering. But no one should be more concerned than individuals living with learning difficulties and disabilities such as autism, because they are the ones most at risk as a result of the changes.
Criminal defence specialists are becoming more concerned about the number of youths with developmental disabilities who are coming into contact with the criminal justice system from within the care system. When young people cared for by parents misbehave, the issues are dealt with at home. For individuals in the care system, however, domestic disputes are dealt with by the police and ultimately the courts.
But it is not only young people who are entering the criminal justice system unnecessarily. In a number of cases, both vulnerable youths and adults are being criminalised when their acts could be explained by their disability.
Their position is largely down to the fact that funding is only available for essential psychological/psychiatric reports at the criminal proceedings stage. This is far too late. Instead, these examinations should be carried out long before risk-taking behaviour reaches the criminal stage. Then, those whose actions were attributable to their condition could be treated as such and dealt with in a more appropriate manner.
For example, we have found that an increasing number of cases of indecent exposure concern individuals with learning difficulties/disabilities. I recently defended a vulnerable individual accused of indecent exposure who risked a criminal record and a requirement to sign the sex offenders register.
Investigations revealed that multi-agency meetings had taken place regarding his risk-taking and alarming behaviour, but unfortunately, at this crucial stage, the criminal justice perspective had been ignored. Had it been included earlier, representations could have been made to social services regarding the need to address behaviour before police involvement. Even if he had been charged, this move would have supported representations to the Crown that it was not in the public interest to proceed.
Under chapter 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Youth Offending Service is able to offer youth conditional cautions to avoid criminalising vulnerable youths. However, the service was unable to deal with the complex needs of another client, diagnosed with autism and learning difficulties, and referred him back to court. Had the appropriate adult at the police station requested specialist legal advice, the issue of mens rea would have been raised and he may have avoided being charged.
In addition, had appropriate medical reports been carried out regarding the vulnerable person’s understanding of the effects his actions have on others, these issues could have been raised much sooner.
Unfortunately, funding and the need for such investigations often only become apparent once the person is within the criminal justice system. The criminal justice perspective needs to be considered in multi-disciplinary meetings.
All of the above knowledge and expertise in dealing with vulnerable people comes from experience and training. However, under the proposals for PCT, there will be no niche/specialist legal aid practices. There will also be little chance of any continuity in terms of a working relationship between the accused and the solicitor.
Even worse, it does not require a huge stretch of the imagination to foresee a scenario in which an accused admits an offence in interview and a solicitor, working on a fixed-price fee, decides against carrying out extra work because, in their eyes, it is not cost-effective to do so.
These proposals make it crucial that the social services criminal justice system takes on some of the responsibility of making sure that prevention is at the heart of their care plan.
Hayley Cooper is a solicitor-advocate at Kirwans