Q. In cases like these, wouldn’t it be possible for someone to use ‘diminished responsibility’ under this law as a defence when it comes to conditions like autism, mental health, learning disabilities etc?
No, contrary to popular belief, this is not something that can be used as a defence under any law apart from in the case of a murder charge. Even using the defence ‘ diminished responsibility (especially in cases of murder) does not avoid criminalisation. This is purely a defence used within court cases. In these cases, the defendant is most likely going to spend a lengthy sentence either in prison or a secure unit.
In 1997, the Protection from Harassment Act was amended by the UK government. The clauses that were inserted into the amended version of the act has resulted in individuals that lack social understanding/capacity due to a disability (Autistic Spectrum Disorders, Mental Health Conditions, Learning Disabilities etc), being criminalised under this law reform.
In section (1b), the act states that a person ‘ought to know their actions amounted to harassment of another’. Individuals with the conditions mentioned above don’t know due to understanding/capacity issues relating to their ability to function. Individuals with these types of conditions lack social understanding. This part of the act needs amending in order to allow the system to find an alternative to criminalising these individuals.
Section 2 of this act deals with the issue of sentencing. Individuals with these types of conditions shouldn’t receive a prison sentence if it is established that the individual’s intention wasn’t to harass or that they didn’t understand that their actions amounted to harassment. ‘More than 70% of the prison population has two or more mental health disorders’ (Social Exclusion Unit, 2004, quoting Psychiatric Morbidity Among Prisoners in England and Wales, 1998). 70,000 people are currently in the prison system. It costs £65,000 to process an individual through the criminal justice system. £40,000 for an individual each year that they are incarcerated. This totals £105,000. Tax payers money. The average sentence for harassment is 2 years. This amounts to the grand total of £210,000. According to the Focus Prisoner Education website, ‘prisoners with health conditions cost more on top of that standard figure to accommodate in prison’ (Focus Prisoner Education, 2015, http://www.fpe.org.uk).
Punishment isn’t going to change a person with these types of conditions. There needs to be alternatives before an individual is entered into the criminal justice process. Those alternative routes would cost almost half of the costs incurred being processed through the criminal justice system. A criminal record can have a lasting impact on an individual's life. It can prevent the individual gaining employment involving working with children and vulnerable adults. A record can also prevent an individual traveling to some other countries. In some cases, a record can impact on securing a place to live. There have been disabled people who have had their children removed by child protection because of being criminalised for their problems. Police national computer records now keep all warnings, cautions and convictions on their database for 100 years. The difficulties that individuals with these types of disabilities have trying to establish a career and build a life is hard enough due to how the affects of their condition; without a criminal record. The general population assumes that everyone with a criminal record is ‘scum’. There is a general assumption that individuals that participate in criminal acts chose to act unlawfully. In this case, these individuals do not chose to act unlawfully because it’s caused by their condition.
There should be a clause added to the act that covers restorative justice. This will act as a preventative measure that stops misunderstandings. There are situations that turn into something more serious because of parties who should be effectively communicating but can’t due to the police involvement. Police involvement is never a positive way to deal with these kinds of situations. The officers scare vulnerable adults and cause stress/anxiety that they do not need with their already challenging disability issues.
Q. Do these proposed changes (a two tier system) run counter to equality under the law?
As the law stands in this moment of time, those that have conditions are being unfairly treated right under the nose of the equality bodies in the UK. If an individual has been criminalised under a law, then they are subjected to safeguarding checks whether it is in employment/education, health care services or child protection services. They can lose employment/volunteering opportunities, be unfairly judged by health professionals (can prevent them from accessing appropriate services) and can lose access to their children (also their children can be subject to forced adoptions) due to these checks.
Tier 1: This tier incorporates the law as it stands now. Those without conditions which results in them breaking this law will get sent down the police and criminal justice route.
Tier 2: Those with conditions that result in them breaking this law do not get sent down the criminal justice route, meaning there will be no police involvement (therefore avoiding being left in cells, which can result in knock on mental health issues on top of pre-existing). They won’t be processed by the criminal justice system and subsequently will not being given a police, caution or criminal record. This is part of old english law referred to as mens reus (a latin term), which has been overridden by modern acts. There will be a restorative justice approach conducted by those that are not part of the police. This will avoid miscommunication and situations being amplified by the traditional police approach.
The money raised for this project will be used to pay legal representatives to draft a bill to present to the three stages of parliament and the money left over will be used to provide the support away from council run services (that are currently not working).