Clare Hayes, Jessica Jones and Nick Armstrong report on the lack of monitoring of learning disability among the prison population and recent litigation that may result in this situation changing for the better.
All prison lawyers will know of the problems faced by learning-disabled people in the prison population. Anecdotally, there are figures such as 70 per cent of people in prison have some form of learning difficulty. Such figures, however, even if accurate, mask a wide range of different needs and experiences. At one end, it may include those with mild dyslexia that has only a limited impact on their ability to cope with prison life. But at the other end, we encounter prisoners who a few years ago were in special schools with 3:1 pupil/staff ratios but who are now on the wing and expected to cope with a ratio of 80:1. Those vulnerable individuals are trying not just to navigate prison systems, including written complaints systems and offending behaviour courses, but also the social dynamics: who to avoid and how. Try that if you are autistic.
We have encountered staff, including senior staff, who think disability liaison officers are only really there to formulate evacuation plans for prisoners in wheelchairs.
The problem is not just that these people are in prison at all. It is also that HM Prison Service does not hold reliable figures on who they are and what their presenting needs are. How then can their needs be understood and met by staff? How then can appropriate systems be developed? Even the basics are missing. Is the figure of 70 per cent correct? How many prisoners are there who, in school, had education, health and care plans (EHCPs)? If so, for what and with what specified provision? Are people being referred to disability liaison officers (DLOs)? We have encountered staff, including senior staff, who think DLOs are only really there to formulate evacuation plans for prisoners in wheelchairs. That is a vivid illustration of the problem faced by those with invisible disabilities, who may be overlooked amidst the many demands on hard-pressed prison staff, riven by years of benchmarking cuts.
There may, however, be a slight chance that this lack of knowledge is about to change. We recently acted in two cases funded by the Equality and Human Rights Commission (EHRC) that were concerned with the roll out of PAVA (also known as pepper) spray to staff in the adult male prison estate. One case was the continuation of the other and both were brought by a claimant with quite pronounced learning difficulties. The cases were concerned (among other matters) with the inadequacies of an equality impact assessment about disability before PAVA was rolled out. In particular, insufficient thought had been given to those with learning disabilities (including those with co-morbid attention deficit hyperactivity disorder and autism) that make them behave or communicate in ways that render them more vulnerable to having force – including PAVA - used on them by prison officers, and who may also be more likely to experience an acute response when PAVA is discharged.
The claims settled, but only after some subtle yet significant changes were made to relevant prison policies and systems. First, the operational guidance to staff now makes specific reference to those with learning disabilities. This is now, expressly, one of the counter-indicators to PAVA use, with staff being required to have regard to ‘[p]rior experiences with the prisoner posing a potential threat. Staff may have experienced and/or managed previous violence from a prisoner and any known triggers for such behaviour such as mental health crisis, emotional vulnerability or intellectual disability should be considered before use wherever possible’.
This alert in the guidance is of limited use, however, if staff do not know about a relevant disability. That proved the real issue. During the course of the proceedings, the Ministry of Justice (MoJ) eventually acknowledged that it had no centralised system for recording data concerning disability in prisons. As it was bluntly put in one of the PAVA-use analyses that we obtained:
Currently there are no published figures which record the frequency of disability in the prison population, therefore it is not possible to provide comparison data for the proportion of disability in the prison population.
As it was more coyly put in correspondence:
It is acknowledged that information about disabilities across the prison estate presents an ongoing challenge, which is wider than a PAVA governance issue alone.
That encapsulates the dramatic gap in the Prison Service’s understanding about this key equality issue. We were told, however, that this was being addressed at the highest level:
The issue of disabilities recording has been identified at the Safety Programme Board, chaired by the director general, as requiring attention, and discussions between the Safety Team, the Diversity and Inclusion Team and Prison and Probation Analytical Services have commenced.
At the same time, with regard to PAVA use specifically, the MoJ was examining NOMIS records to look for evidence of disability in the cases where PAVA had been deployed. PAVA use of force forms now instruct officers to record data about use against disabled people, including by interrogating each person’s NOMIS record (officers are also told to check for other protected characteristics – in particular age, ethnicity and religion). Those forms are to be analysed at monthly use of force committee meetings, which are to be attended by DLOs.
All this should produce a specific focus on disability in the context of PAVA use. The recording requirements should generate critical data – not previously available – about disability in that context. Again, from the correspondence:
The evaluation team is proactively locating information about use according to protected characteristics including disability to inform the routine scrutiny that is being applied to PAVA use. In addition the importance of identifying this information at establishment level is being reinforced with prisons, and improvements have been made to the PAVA incident reporting form which now contains additional guidance as to where to find relevant information on NOMIS.
Perhaps more interesting, however, is what this means beyond PAVA. The MoJ’s acknowledgement that it lacks disability data about the prison population is significant. It recognises it has the means at hand to obtain some of that information (NOMIS; use of force forms). It knows it has to start collecting and analysing that data. That has started in the context of PAVA use, but wider local and national work should be being done. There are other obvious ways forward. We see no reason why the prison could not routinely obtain from local authorities information about whether someone was subject to an EHCP at school, or whether they received relevant social welfare support. Probation officers could be specifically trained and prompted to look for this information (and understand what it means) when completing pre-sentence reports and OASys assessments. As was beginning to be recognised in the present case, relying solely on self-reporting of learning disabilities is woefully inadequate.
These are baby steps, but they matter. The due regard required by the public sector equality duty (Equality Act 2010 s149) often requires data collection and analysis. That may become a legal obligation where there is a potential problem and the evidence is missing. See, for example (and recently), R (Bridges) v Chief Constable of South Wales Police  EWCA Civ 1058
;  1 WLR 5037; November 2020 Legal Action
21, where there was a need for the police actively to seek out evidence about whether there was a race or sex bias in facial recognition technology. The police were not permitted to leave the question unanswered:
We acknowledge that it is not the role of this court to adjudicate on the different points of view expressed by Mr Roberts and Dr Jain. That would not be appropriate in a claim for judicial review, still less on appeal. The fact remains, however, that SWP have never sought to satisfy themselves, either directly or by way of independent verification, that the software program in this case does not have an unacceptable bias on grounds of race or sex (para 199).
See also the even more recent case of R (DMA and others) v Secretary of State for the Home Department; R (AA) v Secretary of State for the Home Department  EWHC 3416 (Admin)
, where the issue was the failure to monitor compliance with key performance indicators in the supply of migrant accommodation. That meant that ministers were being told the wrong things about how the system was performing. There can be no due regard if no, or no proper, monitoring has taken place and so the secretary of state either does not know or, worse, has the wrong information (see, for example, paras 307 and 325).
The point of this article is to alert practitioners to the acknowledged gap in the understanding and to the commitments now made to fill it. If other potential cases come along, concerning learning-disabled people in prison, practitioners may want to ask what steps have now been taken to record and respond to the incidence of learning disabilities in the prison population. That should include steps taken since the conclusion of these PAVA cases. If no, or no proper, steps have been taken, that may well evidence a breach of the public sector equality duty. The MoJ cannot acknowledge the problem and take no action.
Hopefully, of course, proper disability assessments and information will be obtained and analysed. The question whether 70 per cent of the prison population are learning-disabled, or whether it is some other figure, and the nature of those disabilities, may be about to be answered.
We would also add the following. First, there is a particular opportunity right now to advocate and campaign on these matters because the lord chancellor, Robert Buckland QC MP, has expressed a particular awareness and interest in them. See, for example, his statement about neurodivergence in the criminal justice system and the acknowledgement that more people could and should be diverted earlier, in Lord chancellor’s speech: white paper launch – a smarter approach to sentencing
(MoJ, 16 September 2020).
Second, this article is about disability because that was the protected characteristic of this particular claimant. Lawyers will know that there are at least as many serious questions about PAVA use and race. A little more is understood about the disproportionate use of force in the prison system against Black and minority ethnic people but (in spite of repeated criminal justice reviews and recommendations over decades) there have been few advances towards addressing the root causes of racism in the criminal justice system.
Finally, more information about the PAVA challenges can be found on the EHRC website
alongside the operational guidance on PAVA (not previously published) and a summary of current equalities data that were disclosed during the proceedings.
A spokesperson for the EHRC said:
The state has a duty to protect those in its care. We will continue to monitor progress in this area to ensure the Ministry of Justice is complying with equality and human rights obligations and stand ready to use our legal powers again if necessary.
The EHRC and Deighton Pierce Glynn are also available to respond to requests for other materials from the litigation.