Justice and Fairness in Prisons · 6 Jul 2021
Autism and punishment in prison
Last autumn, a young Black autistic man called our advice line: a prison officer swore at him and when he reacted with a similar insult, he was restrained by multiple officers. To add insult to injury, he was then issued with a disciplinary charge for talking back to the officer who had verbally abused him. The matter was to be dealt with by way of a formal disciplinary hearing before a Governor in the prison. The young man could face a range of punishments including cellular confinement for up to ten days.
The day after the incident, the young man prepared a written statement for the disciplinary hearing. His statement was very clear that he was unsure that he could fully understand and participate in the process as a result of his autism.
I’m not entering a plea and I don’t want you to see it as non-compliance but I just don’t full understand what I should go for as it wasn’t caused by me. I don’t know if it’s my autism but I don’t know how to make these decisions myself but as I said I just don’t want legal advice to long everything out.
The prison pushed ahead with the hearing and he was found guilty of “using threatening, abusive words or behaviour”. He received a caution for it.
The young man later explained to us that he turned down legal advice because he believed that if he delayed the hearing for legal advice, he would be kept in the prison segregation unit in the meantime, resulting in experiencing the same level of restriction as the worst punishment that could be imposed.
Eight years ago, disciplinary hearings before a prison governor were taken out of the scope of legal aid. Since then, people in prison have only been able to access representation in cases where the governor agrees that they meet the (discretionary) Tarrant criteria. In a legal challenge in 2017, the Howard League pointed out that the removal of legal aid could prevent young people from effectively participating in their hearings. The Secretary of State for Justice insisted that there were safeguards in place to make sure that this would not happen.
Yet in this case, and in many other cases which the Howard League has advised young people about, there were no safeguards. Our lawyers asked to provide legal representation at the young man’s hearing under the Tarrant criteria, which include considering whether someone has the capacity to present their own case and the need for fairness between people in prison and officers. The prison said the criteria had not been met.
The Howard League supported the young man to appeal to the Prisoner Casework Unit and then to the Prison and Probation Ombudsman (PPO). In June 2021 the PPO upheld the appeal, agreeing that the hearing had been fundamentally flawed and that it was wrong that the young man’s autism had not been considered in proceedings. The PPO noted that a legal representative could have questioned the prison officer about the verbal abuse described by the young man, which had instead gone unexplored in the hearing. The charge against him was quashed.
With the Howard League’s support, the young man eventually got the right outcome. The decision was hugely important to him. But it took more than six months of sustained work from our lawyers and there is no guarantee that other young people will be able to access the same support.
Young people rarely complain to the PPO: last year, young people under the age of 21 made up six per cent of people in prison but only two per cent of complaints. Yet the Howard League’s legal work shows that independent scrutiny of complaints is essential to challenge and correct the everyday injustices which people experience in prison. Through our legal advice line and in our contact with the PPO, we are working to remove the barriers to making complaints and empower people to play a part in restoring a sense of justice and fairness within prisons.