Learning Disabilities, Autism and Neurodivergence Bill: consultation

Closes 21 Apr 2024

Justice

Although there is a lack of robust data, there are indications that people with learning disabilities and neurodivergent people may be over-represented in the criminal justice system and that their needs can be unidentified and unmet. This can be because of inaccessible information, lack of knowledge and lack of a reliable method of identifying people with vulnerabilities. 

What can the Learning Disabilities, Autism and Neurodivergence (LDAN) Bill do?

There are many developments happening across the civil and criminal justice system that have the potential to be very positive for neurodivergent people and people with learning disabilities. Some of those changes are broad and not specifically adapted for neurodivergence and learning disabilities but trauma focused work is a key theme that can be built upon for these groups.

We think that there is merit in exploring the extent to which the Bill could seek to improve the position for a neurodivergent person or person with learning disabilities interacting with the justice system in the following ways.

Proposal 1: Strategies and a co-ordinated approach

We could consider bringing together a single national strategy that deals with neurodivergence and learning disabilities in the civil and criminal justice systems.  There are many complex interactions between different parts of the justice system that would benefit from this approach and allow a clear set of priorities to be developed reflecting the other proposals below. 

Proposal 2: Data and the identification of neurodivergent people and people with learning disabilities in the justice system

It is a critical requirement to ensure that neurodivergent individuals and people with learning disabilities and their needs can be appropriately identified at key points of contact with the justice system. This is to ensure that: 

  • The right kind of communication is used and it is adapted for neurodivergent people and people with learning disabilities;
  • Any additional impact of a situation, for example admittance to custody is understood and appropriate adjustments made such as to the physical custody environment;
  • Additional supports are provided, such as an Appropriate Adult in criminal justice and access to independent advocacy;
  • Appropriate information is fed into key decision points in the justice system to help provide more accurate future data.

At present the onus in the criminal justice system is often on individual police officers to recognise and flag up any additional needs. We want to consider how best to ensure that neurodivergence and learning disabilities are better identified at relevant points and by relevant staff.   

The Bill could potentially place a duty on public bodies such as the Police, Crown Office and Procurator Fiscal Service (COPFS), and the Scottish Prison Service to seek to identify neurodivergence and learning disabilities when people are coming into contact with the criminal justice system.  This could apply at key points such as: 

  • When a victim or witness comes forward
  • When someone is arrested and brought into custody
  • When someone is sentenced
  • When someone is admitted to prison to begin a sentence

This is not about diagnosis - it is about identifying the need for support.

It may also be possible to investigate whether a common screening tool across criminal justice agencies could help. 

Proposal 3: inclusive communication

Inclusive communication is critical for neurodivergent people and people with learning disabilities and we have set out broad proposals around this in the overarching themes. Those in contact with the criminal and civil justice systems need to be able to fully understand the information they are being given whether they are a victim, witness, party or potential offender.  If information is not accessible this can result in people being either unaware of their rights or unaware that they are at risk of breaching standard or special bail conditions. The approach we have set out earlier in this consultation on inclusive communications proposes:

  • Better access to easy-read versions of public facing communications and documents made by public authorities. This could include a broad duty to make them available on request and an automatic duty to provide them in certain circumstances. For example, a duty on the Police, the Scottish Courts and Tribunal Service and the Scottish Prison Service to provide information to people accused or convicted of a crime in an accessible way, including standard bail conditions. 
  • Provide for neurodivergent people and people with learning disabilities to request access to alternative means of communication where the offered means of communication will not work for them.  This could mean being able to ask for an online meeting rather than face to face or a telephone call instead of a letter.  

Proposal 4: Mandatory Training

Proposals in relation to mandatory training are set out in the overarching themes section. We propose that the Bill provides for training on neurodivergence and learning disabilities to become mandatory for health and social care staff, and we are seeking views on whether this should be extended to other public bodies.  

We could therefore consider extending the requirement for mandatory training to police, prison, COPFS and relevant courts and tribunals staff.  We think that mandatory training for staff in the civil and criminal justice systems is a key element to support better identification of needs, better support and improved communications. We know that not all staff will need this but public facing staff would, and we could consider how to define this in the Bill for new and existing staff. 

Proposal 5: Advocacy

We have set out our proposals on advocacy in the overarching themes section.  There is currently work going on across the Scottish Government to consider a consistent approach to advocacy and this includes neurodivergent people and people with learning disabilities.  We do not want to take anything forward separately on advocacy that is not informed by this work.  If necessary, and if this work is not concluded, we could consider the Bill conferring a power that would enable the Scottish Ministers to make any necessary regulations on independent advocacy for neurodivergent people and people with learning disabilities, should this be required. 

In addition, mandatory training could include information about the role and availability of advocacy in the civil and criminal justice systems as well as information about the Appropriate Adults scheme. 

Proposal 6: Diversion from Prosecution (DfP)

As with others, neurodivergent people and people with learning disabilities may benefit from the use of DfP where they are alleged to have committed offences. Better identification within the justice system and training for staff to understand how to do this could help. A requirement to identify needs should allow better information to be provided by the Police to COPFS in the Standard Prosecution Report (SPR).  The SPR is the basis on which COPFS can make a decision about DfP.  This will also help local authorities when they complete their DfP assessment as they would need to take this into account. 

Training and awareness raising provided to professionals working in COPFS on neurodivergence and learning disabilities, how it impacts on people’s lives, and how it can have an influence on offending behaviour could help with increasing consistency of decisions around DfP for these groups. This training could include the role of support in reducing the likelihood of re-offending.  

Please tell us what you think.

Related information

Consultation Questions

The questions in this document refer to information contained in our consultation document and various alternative formats which can all be found here

You need only answer questions in the sections most relevant to you.

Which of these proposals do you agree with (if any), please tell us why?
Which of these proposals do you not agree with (if any), please tell us why?
Is there anything else that we should consider in relation to justice?