Often the needs of minority groups in the criminal justice system, such as women or people with learning disabilities, are viewed in isolation, for example the experiences of women are explored or the experiences of people with learning disabilities. The ‘intersectional’ nature of gender and disability means that the needs and experiences of this small, but significant minority within the criminal justice system are often overlooked and remain unacknowledged within policy and practice.
Women’s offending is more likely to be connected to their relationships than men’s, such as acquisitive crime to purchase drugs for their partner; they are more likely to have committed non-violent offences than men; and are more likely than men to be sentenced to prison for a first offence (Earle, 2014). Their offending is more likely to be linked to drug or alcohol problems, itself often a response to previous abuse and trauma; to underlying mental health difficulties; and to coercive or abusive relationships (Prison Reform Trust, 2017). Evidence also suggests that women with learning disabilities are more likely than those without cognitive impairments to experience domestic violence, and that they are less likely to know where they can seek help and support for this (McCarthy et al., 2017).
Previous research has concluded that 20-30% of offenders have learning difficulties or learning disabilities that interfere with their ability to cope within the criminal justice system (Loucks, 2007). Whilst this has not been broken down by gender, in prisons the incidence of learning difficulties and difficulties in women is perceived to be higher than it is for men (Mottram, 2007). Guiney and Earle (2017) reported that whilst women make up approximately 15% of adult arrestees in police custody, they account for 22% of those referred to Liaison and Diversion services. Liaison and Diversion is a service providing support in police custody and courts to adults who are perceived as vulnerable due to factors such as mental health issues and learning disabilities (NHS England, 2014). Thus, it would appear that learning disabilities and related issues are also more prevalent in women in the criminal justice system than they are amongst men.
Intersectionality is a way of looking at the interconnected nature of social categories such as age, gender, ethnicity, sexuality, or in this instance disability, that may lead to oppression or additional disadvantage for an individual (McCarthy et al., 2017). Commonly, such social categories are perceived as distinct spheres of experience, however theories of intersectionality explore how these spheres of experience can overlay one another creating more complex intersections. Such theories also seek to demonstrate how existing policy and practice can result in further discrimination or inequality of service provision (McCarthy et al. 2017).
The Public Sector Equality Duty
The Equality Act 2010 provides legal protection from discrimination to people with one or more of nine ‘protected characteristics’ including age, ethnicity, gender, sexual orientation and disability, including learning disabilities. It is important here, to recognise that equality does not mean treating everyone the same. Baroness Corston noted that, within the criminal justice system, women and men are different, they have differing needs and equal treatment of them does not result in equal outcomes (Corston, 2007).
Duties under the Equality Act mean women and men “should be treated with equivalent respect, according to need” and “equality must embrace not just fairness but inclusivity” (Corston, 2007: 3). Whilst women are a minority group within the criminal justice system, making up about 23% (Ministry of Justice, 2012), they are not all the same. There are other smaller minority groups within this group with different needs and different problems, and a disproportionate number of them have learning disabilities and difficulties (Corston, 2007, Talbot, 2007), although these additional and more complex needs are often undiagnosed (Ministry of Justice, 2012). As such, and in terms of the Equality Act, women with learning disabilities or difficulties represent a ‘protected characteristic within a protected characteristic’. Not only do they have different needs to men, they also have different needs to other women. The Public Sector Equality Duty requires public bodies including the police, prisons, probation services and courts to make reasonable attempts to eliminate discrimination and ensure equality of opportunity during the course of their activities. Thus, across the criminal justice system it is imperative, both at a legal and moral level, that the needs of both women and those with learning disabilities are addressed. Further, in relation to women with learning disabilities, it is therefore important to identify how the implications of gender and learning disabilities overlap and create further inequality and disadvantage.
Despite this, there is very little research to date that specifically looks at women with learning disabilities in the criminal justice system and a review of the wider literature highlights that the intersectionality of gender and learning disability does not receive in-depth attention compared to mental health. For example, the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders ('the Bangkok Rules') do refer to ‘mental disability’ relating to wider mental health issues but do not specifically discuss ‘learning disability’, ‘intellectual’ disability’ or ‘cognitive impairments’. Similarly, the Women’s Custodial Estate Review (Robinson, 2013) published by the National Offender Management Service acknowledges the complex needs of women prisoners, including personality disorder and mental-health related issues, but does not mention learning disabilities or difficulties.
However, the necessity for a better understanding of such intersectional issues within the criminal justice system have previously been identified. According to Her Majesty’s Prison Service, learning disability has commonly been under diagnosed in women prisoners, leading to concerns that where it is not identified, women may not receive appropriate support (HMPS, 2008). An NHS survey conducted at HMP Styal in 2007 (Mottram, 2007) reported that 8.3% of the sample had an IQ below 70 (considered to be a learning disability), and a further 31.7% were classed as having a borderline learning disability. This compared to 7.1% and 23.6% in the adult male prisoners sampled. It is recognised though, that minority groups with learning disabilities, such as women, may have additional needs (Betts, 2015), though these often go unmet. Good practice guidance from Her Majesty’s Inspectorate of Prisons (HMIP, 2014) propose that women’s needs are accurately and effectively assessed on arrival at prison, including formal assessment of learning disabilities and difficulties, and that timely action is taken to address these needs. This approach is described as essential in promoting equitable outcomes, allowing reasonable adjustments to be made to ensure that women with disabilities have equitable access to programmes and services within prison, and within the wider criminal justice system (Ministry of Justice, 2012, HMIP, 2014). However, it is also recognised that the smaller number of female offenders, particularly in prisons, can make this more difficult. As the Prison Service Order relating to women (PSO 4800 - HMPS, 2008) identifies,
In the male estate if a particular prison is unable to make “reasonable adjustments” to enable a prisoner with disabilities to benefit from a particular service or programme, it is possible another nearby prison will be able to do so. This is less likely in the women’s estate where with fewer prisons it is quite likely that a particular service or programme will only be available in one prison.
HMIP inspection reports indicate that such proactive identification of need and appropriate responses vary between establishments. Some screening tools utilised are described as lacking a sufficiently sophisticated approach to the identification of learning disability, and many examples are given of individuals whose needs were not identified on reception into prison. In one establishment, there was a specialist learning disability nurse who attended the prison one day a week, but they did not have any women on their case load. This is surprising given the reported prevalence of learning disabilities amongst this population. None-the-less areas of good practice have been also been identified in Inspector’s reports. One prison had a specific wellbeing group for women with learning disabilities that had been established following consultation with prisoners and another had two learning disability nurses who assessed social care needs and capacity, with a clinical psychologist who provided structured support for them. Other prisons were noted for conducting reception interviews in private, a strategy to increase self-disclosure and minimise the risks of appearing different or vulnerable to other prisoners.
Liaison and Diversion Services
The biggest change to the support offered to people with learning disabilities in the earlier stages of the criminal justice system is the introduction of Liaison and Diversion services into police custody suites and courts. A key recommendation of the Bradley Report (Department of Health, 2009), ‘Liaison and Diversion’ is a process intended to ensure that young people and adults with vulnerabilities such as mental health problems, substance use problems or learning disabilities are identified at the earliest opportunity in the criminal justice system (NHS England, 2014). Effective assessment and appropriate sharing of the results is intended to allow reasonable adjustments and informed decisions to be made relating to diversion out of the criminal justice system, charging individuals, their case management and sentencing (ibid). The aims of the service are to:
- Improve access to healthcare and support services for vulnerable individuals and a reduction in health inequalities
- Divert individuals, where appropriate, out of the youth and criminal justice systems into health, social care or other supportive services
- Deliver efficiencies within the youth and criminal justice systems
- Reduce reoffending or escalation of offending behaviours
(Disley et al., 2016, p. xiii)
Women make up approximately 15% of adult arrestees in police custody, but account for 22% of those referred to liaison and diversion services, highlighting the greater prevalence of such complex needs, but also providing an important opportunity to ‘make every contact count’ (Guiney and Earle, 2017). The benefits of using of women’s centres as an alternative to custody, where women can receive person-centred and individualised support, have often be highlighted (see for example the Corston Report (Corston, 2007) and the Scottish ‘Commission on Women Offenders’). The development of such services would also provide further resources for Liaison and Diversion services to divert women to. These may prove more appropriate for women with learning disabilities or difficulties whose needs may not be met in prison, and for whom community penalties may be inappropriate or harder to complete or comply with.
Overall, there is a lack of information about the experiences of women with learning disabilities in the criminal justice system. This group has been shown to be over-represented but under identified within the system. Such women may be the most vulnerable of an already vulnerable group, but very little is understood about the ways in which being female and having a learning disability combine to affect the experiences of women in the criminal justice system. Consequently, further research into their experiences may inform policy and practice that would better meet their needs and also help public services including the police, prisons, probation services and courts to meet their obligations under The Public Sector Equality Duty.
Betts, N. (2015) Equal Access, Equal Care; Guidance for Prison Healthcare Staff treating Patients with Learning Disabilities. London : NHS England
Corston, J. (2007) The Corston Report: a review of women with particular vulnerabilities in the criminal justice system. London: Home Office
Department of Health (2009) The Bradley Report: Lord Bradley’s review of people with mental health problems or learning disabilities in the criminal justice system. London: Department of Health
Disley, E., Taylor, C., Kruithof, K., Winpenny, E., Liddle, M., Sutherland, A., Lilford, R., Wright, S., McAteer, L. and Francis, V. (2016) Evaluation of the Offender Liaison and Diversion Trial Schemes. Cambridge: RAND Europe
Earle, J., Nadine, R. and Jacobson, J. (2014) Brighter Futures - Working together to reduce women’s offending. London: The Prison Reform Trust and The Pilgrim Trust
Guiney, T. and Earle, J. (2017) Fair Cop? Improving outcomes for women at the point of arrest. London: Prison Reform Trust
Her Majesty’s Inspectorate of Prisons (2014) Expectations – Criteria for assessing the treatment of and conditions for women in prison. London : HMIP
Her Majesty’s Prison Service (2008) PSO 4800 Women Prisoners. London : Ministry of Justice
Loucks, N. (2007) No One Knows - offenders with learning difficulties and learning disabilities - review of prevalence and associated needs. London : Prison Reform Trust
Loucks, N and Talbot, J. (2007) No One Knows – Identifying and supporting prisoners with learning difficulties and learning disabilities: the views of prison staff. London : Prison Reform Trust
McCarthy, M., Hunt, S., and Milne-Skillman, K. (2017) ‘I Know it was Every Week, but I Can’t be Sure it was Every Day: Domestic Violence and Women with Learning Disabilities’. Journal of Applied Research in Intellectual Disabilities’ 30 (2) pages 269–282.
Ministry of Justice (2012) A Distinct Approach: A guide to working with women offenders. London : NOMS Women and Equalities Group
Mottram, P. G. (2007) HMP Liverpool, Styal and Hindley Study Report. Liverpool: University of Liverpool
NHS England (2014) Liaison and Diversion Operating Model 2013/14. London : NHS England Online: https://www.england.nhs.uk/commissioning/wp-content/uploads/sites/12/2014/04/ld-ser-spec-1314.pdf (Accessed 31st March 2017)
Prison Reform Trust (2016) Transforming Lives Leaflet
Prison Reform Trust (2017) Why focus on reducing women’s imprisonment? [Online – http://www.prisonreformtrust.org.uk/Portals/0/Documents/Women/why%20women_final.pdf accessed 29th May 2017)
Robinson, C. (2013) Women’s Custodial Estate Review. London : NOMS
Talbot, J. (2007) No One Knows – Identifying and supporting prisoners with learning difficulties and learning disabilities: the views of prison staff. London : Prison Reform Trust
Talbot, J. (2008) No One Knows – Report and Final Recommendations. London : Prison Reform Trust
About Hugh Asher
Hugh is an author, practitioner, trainer, researcher and consultant.
He keeps rare breed sheep and cows.
He also shares his house with the world’s largest puppy, called Charlie.
Although he was told from a young age that “Life isn’t fair” he has refused
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