Helping hand to justice

There are about 2,000 new cases of sexual abuse reported each
year¹ committed by and against people with learning
difficulties. But no action is taken in more than half of these
cases.² Even where incidents are investigated, the Crown
Prosecution Service seldom decides that the criteria for going to
trial are satisfied.³ When they do reach court,
conviction rates are low.⁴

Generally, the judicial system does not afford people with learning
difficulties equal access or appropriate support. Lack of knowledge
and understanding about learning difficulties have led to reports
of sexual abuse being seen as a social or staffing problem, leading
to what some refer to as “almost decriminalisation” of
offences.

There have been widely held assumptions that cases would not result
in prosecution, and that people with learning difficulties could
not make credible witnesses. Moreover, there is a belief that to
prosecute in such cases is not in the public interest.

Consequently, many people question whether there is any point in
reporting cases to the police and beyond, something that further
impedes access to justice for people with learning difficulties.
This led one expert to say: “The police do not record crimes
because they believe the CPS will not prosecute, staff do not
report to the police because they ‘do nothing’, and victims do not
tell staff because they say the police won’t help.”⁵

Several government reports⁶ have been published in the
past five years which confirm these deficiencies and make
suggestions, though change in the legal system is painfully
slow.

But perhaps the mood is changing. A project in Southwark, south
London, developed a joint police and social services policy of
early and positive reporting and conducted joint investigations. It
convinced police officers that people with learning difficulties
had equal rights within the law.

A conference held recently by Voice UK – a support group for people
with learning difficulties – heard that, of the 1,400 cases
reported each year, only 6 per cent resulted in convictions. But an
unusually high rate was reported in Liverpool – 15 convictions from
17 cases.⁷

In one project in the North West, clinical work and staff training
carried out by clinical psychologists unearthed information about a
large number of unlawful sexual acts being committed on and by
people with learning difficulties. But no action was taken, other
than referral for clinical input. The clinical psychologists took
this information to the social services team manager, who notified
the police family support unit (FSU). A multi-disciplinary meeting
decided that the police and social services should carry out a
joint investigation.

The detective who headed the investigation recognised the
seriousness of the alleged offences and was aware that,
historically, the police had often failed to investigate
allegations because it was felt that the quality of evidence would
be deficient. Their belief was compounded by a lack of guidance on
interview technique. However, they recognised that victims could be
doubly affected by receiving restricted access to the judicial
system, and they continued to investigate for more than a year
despite major difficulties.

Also, they knew of cases where alleged offenders with learning
difficulties “got away with it”, implying that they could act with
impunity. The investigating team felt that, regardless of outcome,
it was important to continue to raise the level of awareness
throughout the judicial system locally. They recognised that this
would be an important contribution to the impetus for change
relating to the standard of evidence required by the courts.

The social services adult protection policy featured the manager of
the learning difficulties care management team as the first
referral point in the process of responding to allegations of
abuse. Consequently, the manager set up the multi-disciplinary
meeting and, once the decision to investigate had been taken, a
care manager from the team with detailed knowledge of adult
protection issues was seconded to the FSU. When alleged
perpetrators were interviewed, other trained members of the team
acted as the appropriate adult to avoid the risk of contamination
of evidence.

The care manager’s function was to support the witnesses in
interviews. She met them before the formal interview, familiarised
them with the FSU environment and the interviewing team and
explained what would happen. As a decision had been made to video
them during the interview, they were familiarised with the
equipment. During formal interviews she provided continuing support
and pointed out any difficulties the witness was having, such as
not understanding the question, needing a break or losing
concentration. This process contributed to the investigating team’s
greater understanding of people with learning difficulties, which
was reinforced during de-briefing meetings after each
interview.

Meanwhile, the clinical psychologists contributed to pre-interview
strategy meetings about specific individuals and the debriefing
meetings with the police. They provided information for continual
risk assessments and observed video interviews involving
individuals with whom they had worked. As well as offering advice
on issues of comprehension and communication, they identified signs
of anxiety, distress, confusion or avoidance in the witness’s
behaviour. Finally, because it was recognised that this type of
work has an emotional impact on investigating staff, a forum was
provided for the team to talk about how the investigation was
affecting them and possible coping strategies.

This multi-agency approach worked because, first, there was
effective communication between the agencies and good working
relationships were developed. Second, it was a joint investigation
with input from the police, CPS, the social services learning
difficulties team and clinical psychologists. Third, the interviews
were carefully planned in strategy meetings, in which information
about the witnesses, such as level of ability, comprehension,
communication skills and specific risks, was shared with the
investigating officers. This enabled the best evidence to be
obtained from the witnesses. Fourth, the police recognised the
seriousness of the alleged offences and engaged in the pursuit of
cases in a dedicated way, which assisted the CPS’s decision to
prosecute in a number of cases. Finally, the existence of the FSU
was crucial.

It is recognised that this has been a first step in addressing the
inequality of people with learning difficulties in accessing
justice. But without this first step none of the other barriers to
justice can start to be broken down.

The Youth Justice and Criminal Evidence Act 1999 addresses some of
the barriers. But so far the timescale for the implementation of
these recommendations has not been strictly followed, further
delaying progress to equality.

Dr Shelagh MacKinnon is consultant clinical psychologist
and Dr Barbara Bailey is principal clinical psychologist, 5
Boroughs Partnership NHS Trust; Una Devlin and Lillian Johnson are
social workers in St Helens social services
department

References

⁷ Voice UK, Witnesses with Learning Disabilities,
Supporting Best Evidence conference, London, February
2002