EDITORIAL

David Carson Faculty of Law, University of Southampton, Highfield, Southampton

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Services for people with learning disabilities have come a long way in the last two decades. (That is not to deny that much more could and should be done). Having a relatively coherent set of objectives, and an internally consistent philosophy such as normalisation, has been very important in getting this far. However t h c philosophy, or value system, has been rela- tively weak on a number of key issues. These, I suggest, include: sexuality, risk-taking and criminality. These issues are, of course, being addressed but we have not made as much progress with them as with others. There are links between them. Each is perceived as controversial; each makes service providers anxious about their involvement with the client and the service. This anxiety is, substantially, the consequence of the relative absence of a practical commitment to, and belief in, agreed service goals and values on these issues.

We may believe that people with learning disabilities should be entitled to express their sexuality in lawful and safe ways. But just consider the contrasting proportions of adults with, and without, learning disabilities who are married. Marriage may not be entirely about sexuality, rather a highly valued (even if imperfect) emotional framework for expanding friendship and expressing sexuality. It is also a measure of the extent to which adults with learning disabilities have been facilitated into enjoying more richly expressive lives.

We may believe that people with learning disabilities are entitled to take risks. But just consider our immediate desire, largely because of our fear of criticism from legal tribunals or the media, to qualify that statement with words such as ‘safe’, ‘sensible’, ‘considered’. Whilst we might like to describe the risks that we take in a similar fashion, say the speed at which- and the manner with which-we drive, we would resent others specifying what was ‘safe’ and ‘sensible’ for us and resent them being able to choose which risks we might take. There is no denying that these issues are com- plex. The development of policies on sexuality and risk-taking is one way

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of drawing ideas and good practices together. However the development of such policies may, currently, have more to do with service providers’ than with clients’ needs.

The criminality issue is more complex. There is much less agreement about objectives and the values which inform them. The key question is: ‘Should people with learning disabilities be regarded as responsible, includ- ing legally liable, for their behaviour if it breaks the law or offends against contemporary social standards?’ Responses vary largely according to whether the question is interpreted as one of principle or whether it includes practical consideration:.

If the question is isolated from practical considerations then many, it is suspected, would answer affirmatively. That, it is submitted, would be consistent with a normalisation care philosophy. Being found guilty of a crime is not, of course, a valued experience. But that is not the point. What matters is treating people as being responsible for their conduct, not finding excuses and defences just because the individual shares a label with others. There is a dignity in being treated as responsible and accountable for our actions. It is a characteristic of practical citizenship. It is part of a ‘contract’ with community living. For many people rights must be matched with responsibilities. None of this prevents an individual claiming any justi- fication or defence that the criminal law provides for an act, or indeed denying that the act was criminal.

As a matter of principle it may be appropriate-indeed positively valu- ing-to presume that people with learning disabilities are responsible for their criminal behaviour. But it would be thoroughly inappropriate to ignore the practical problems involved in bringing people with learning disabilities into the criminal justice system. It has very little to offer, of practical value. The basic problem is that, even though the criminal justice system is ostensibly designed to punish past crimes and to deter future infractions, it does not adopt a learning framework. Pursuing a defendent with a learning disability through the criminal courts is unlikely to provide an educative service. The considerable expenditure of time, skill, effort and other resources might be better invested.

The courts determine guilt and innocence, it will be argued. They are the only legitimate source of such decisions. Others, such as service pro- viders, act in a dangerous manner when they usurp the courts’ role. But that is an exaggeration. Courts may decide that someone is not guilty; it does not follow that he or she is innocent. A finding of not guilty, say of a sexual assault, does not allow service providers to simply conclude that there is no problem, say of a further assault. Anyway the courts make a minority of the significant decisions. Service providers regularly ignore the criminal character of certain acts. They may consider them to be insuf-

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ficiently serious. Even if the objectionable behaviour constitutes an assault against them, service providers often seem to feel themselves duty bound to ignore it, at least until it becomes much more serious. Even if the acts are regarded as criminal the police or Crown Prosecution Service may decide not to proteed with the case. Thus the case that proceeds to court is likely to be atypical.

The criminal justice system is slow and cumbersome. Trials take place a considerable time after the event; opportunities for emphasising the link between any punishment and the behaviour are minimised. So much depends upon forensic tactics. Every suspect has a right to deny the offence and to be unhelpful to the investigating police. Such legal reforms as allowing trial judges to comment upon a defendent’s silence will make little difference. Indeed the investigation and trial systems substantially depend upon bartering and posturing. There are advantages, for suspects, in deny- ing and convincing themselves of different facts, interpretations or motiv- ations for events. Whilst this is a legal entitlement it does little to assist the individual who has offended, let alone the victim.

The criminal justice system is not even efficient, or very effective, at providing a set of clear principles for determining what is and is not crimi- nal behaviour. Very little effort is made to educate non-lawyers about the contents of the criminal law. Most people rely upon their intuition and ‘common sense’ to decide whether an act is likely to be criminal, or not. For example, many crimes can be committed recklessly. This includes doing something whilst being aware of the possibility of harm resulting from it. Thus the person who is unaware of a risk is, now, not reckless for the purposes of most crimes. It is no longer ‘reckless’, for most crimes, just to do an act which reasonable people would regard as obviously risky. This is seen as an advance because some people with learning disabilities were regarded as having been reckless because other people, without dis- abilities, would have realised there was an obvious risk. The inability of the individual with a learning disability to appreciate riskiness provided no defence!

But the problem remains that the law provides a disincentive to being aware of the possible implications of your acts. It is advantageous to be ignorant of risk. There is little point in punishing people who were unable to be aware of the risky nature of an act. They need to be taught about dangers. But should there not be an incentive to think about the qualities of acts before acting? The current law, for most crimes of recklessness, turns on whether the defendant actually was aware of a risk. The principle being adopted is that awareness of possible wrongdoing is a prerequisite of blame. It is regarded as a better principle than punishing just because reckless behaviour took place. The concern is that people should be

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blamed for their thoughts rather than just for their acts which need bear no relation, in their seriousness, to their thoughts. The problem is that this polarised debate detracts from considerations about the quality of the decision-making process. If people are to learn, are to be more skilled at preventing problems and harm, then they need to be encouraged to examine the decision-making processes. A moral rule of criminal liability could examine the individual’s capacity to assess the riskiness involved in an act and the extent to which and quality with which he or she demon- strated thought about the dangers involved. This would put a premium on learning.

The criminal justice system also has very little to offer in the way of suitable disposals. Imprisonment will rarely address the individual’s need to learn how to behave in more appropriate ways. Indeed the criminal justice system will regularly be delighted to transfer individuals to the health or community care systems. Thus many, very understandably, argue that there is little point in invoking the criminal justice system.

So, what can be done? Well, first we need more information. That is just one reason why the following papers are so important. We need to know much more about the nature and extent of the problems. From knowledge action can be more sensibly planned. The ‘solution’ may lie in the development of a ‘sub’ legal system wherein schemes and procedures are developed for the prompt, but nevertheless still high quality, investi- gation of possible offences by people with learning disabilities and the tak- ing of appropriate action. The danger is the existence of such ‘informal’ schemes which, because not publicised and unaccountable, can debase both service providers and clients. The development of ‘alternative crimi- nal justice systems’ for all but the most serious and contested alleged crimes need not be seen as devaluing or segregationalist. If built upon the principle that a criminal justice system should teach as well as punish and prevent then it would have much to offer the more traditional system within which it would operate.