Sam [not his real name] was twenty the first time he came to the attention of the police. Sam has profound anxiety about traveling on public transport that sometimes results in sensory overload and psychological meltdown. One of the ways that Sam tries to control his anxiety is by ‘stimming’, in his case, fiddling with any material within his reach as this has a calming effect. This may include unconsciously touching other people's clothing, bags, etc. (men and women), and then not having the language to explain or apologise if challenged.
These features of Sam’s autism are compounded by poor ‘proprioception’ and ‘theory of mind’. Contact that Sam would perceive as harmless can be mis-perceived by others who do not understand stimming, sensory overload, theory of mind and poor proprioception; a description of which is provided below from a report by Sam’s former consultant psychiatrist who has an international reputation in the field of autism:
'His account of pinching and stoking cloth is completely typical of the stimming described by more able people with ASD—the repetitive movements that are calming by their repetition. ... The exploration of contours and creases with his fingertips also fits totally into this.'
'In this case it is completely in keeping with his stated diagnosis and rest of his statement for him to be stroking his own clothing and feel other clothing in his touch with ridges, and then to move onto exploring and rearranging that clothing, without thinking about what the other person would think about this.’
In the second incident Sam was assaulted. He was put in a headlock and dragged from the train by his hair by a vigilante to who got involved. This person was still holding Sam when British Transport Police (BTP) arrived on the platform but they failed to take his details or investigate the assault on Sam. BTP continue to dismiss the incident as a citizen's arrest using “reasonable force” without any evidence to support this. Sam did not resist in any way, neither was he attempting to leave the scene. They also failed to disclose crucial CCTV of the incident, and have subsequently admitted to losing or destroying other key evidence including witness statements.
Sam’s story is continued from the Hansard transcript (see link) of the debate that his MP, Kevin Brennan, moved in Westminster Hall on 30th January 2018:
“People with autism can often exhibit specific behaviours that others categorise as unusual, such as stimming, which is a repetitive physical movement that helps reinstate a sense of calm. It is a particular trait of people with autism, and it is rarely understood by others. […] Behaviours that are seen to be unusual can sometimes be misinterpreted as antisocial or, even worse, criminal. Indeed, it has been suggested that those who are the highest functioning on the autism spectrum can often bear the brunt of such misinterpretations as their condition is not otherwise obviously visible. […] I hope the Minister will outline his views and what is being done to try to prevent people with autism from being mistakenly criminalised by that misinterpretation of that particular trait. What steps are being taken to ensure that the behaviour of those on the autistic spectrum is not misinterpreted by police and the judiciary?
When adults on the autistic spectrum come under suspicion of criminal behaviour, safeguarding becomes crucial. I want to refer to the case of a constituent of mine, who wishes to remain anonymous for obvious reasons. The safeguards in the criminal justice system did not protect him as they should have under current policy and practice. Owing to his understandable desire not to be named publicly, I will not go too far into the detailed circumstances that led to the arrest of my constituent on two different occasions. I know that Ministers are aware of the details of the case through previous meetings and correspondence. Suffice it to say that his stimming was misinterpreted while travelling in crowded conditions on public transport, and that is what led to his arrest.
My constituent declared his autism before he was arrested, which should have triggered a different pathway from a normal arrest, but he was not diverted or safeguarded at the point of contact as he should have been. On the first occasion, no appropriate adult was called, his parents were not contacted as they should have been, and he was not assessed as fit for interview. A caution was issued against him, which was later quashed due to those lapses in procedure. Unfortunately, he was arrested again three years later, and his vulnerability and protected characteristics were not properly recognised by the police or the health professional who assessed him. In other words, the reasonable adjustments that are required by law were not made during detention or subsequently, and that case was dropped without charge.”
Kevin Brennan notes further below that the police had no evidence to convict Sam but subsequently misled the IPCC in a report from the Deputy Chief Constable by later claiming that the case was dropped on ‘Public Interest’ grounds—implying that they had evidence to convict. To the contrary, the case against Sam was dropped because of insufficient evidence (see below).
At this point in the debate Kevin Brennan notes that: “if Lord Bradley’s recommendations had been properly followed when my constituent was arrested in 2011 and 2014, the trauma that he and his family suffered could have been avoided.” Something that becomes relevant later.
“However, to his [Sam’s] great distress, those erroneous allegations remain on police databases. … despite the police having acknowledged that they were inaccurate, [this] caused him very severe psychiatric harm, as was confirmed by two separate psychiatric reports. As a result, my constituent ended up giving up his job, flat and independence to return home and live with his parents … We cannot want to see such an outcome for an adult with autism who has established independence and a productive role in society in the workplace. It shows the life-changing effects that a lack of safeguarding can end up having.
The allegations remain on police records. The chief executive of the relevant NHS trust invited both the police and the Independent Police Complaints Commission to send representatives to two meetings to discuss how they could help to protect my constituent from further psychiatric harm. I am sad to say that they did not attend either meeting. Even though extensive and complex complaints have been made to the relevant agencies, those made to the police and the Independent Police Complaints Commission remain unresolved. My constituent and his family have grave concerns about the governance and compliance with required standards demonstrated in the handling of their complaints [see bottom of this story].
There is no evidence that the police service involved recognised my constituent’s continuing vulnerability, or put in place plans to respond appropriately and safely in the event of further contact with him. In my view, therefore, they neglected to protect him from future risk of harm. Before the first incident, and subsequently, he was studying for a degree and travelling daily on public transport. Before the second incident, he was working full time, but his experiences and, in particular, the failure to remove or amend the allegations resulted, as was predicted by the senior medical consultants who assessed him, in serious impairment of his health and development, with a significant increase in his anxiety and impact on his functioning. As a result, he lost his employment, moved back home and is no longer able to travel independently on public transport.
In pursuing his case, my constituent and his parents have unearthed many worrying inconsistencies. For example, he was originally told by the police that the case against him was not pursued on public interest grounds, whereas the Solicitor General later confirmed that it had been dropped through a lack of evidence. Those are two very different reasons not to prosecute.
Hon. Members will recall the Commons debate on 30 November last year on mental health and suicide in the autism community, in which reference was made to recent research findings that autistic people are nine times more likely to kill themselves than the average population. For people on the autistic spectrum, contact with the criminal justice system can often come at moments of heightened anxiety. As such, it is crucial that all parties are fully informed and trained to find a solution that does not cause undue distress or, in the case of my constituent, severe psychiatric harm.”
And to highlight in just what way the police discriminate against autistic people and breach their own statutory procedures, Kevin Brennan read the following from an email sent to a colleague by a senior member of British Transport Police’s Professional Standards Department, in which the Detective Chief Inspector dismisses Sam’s parents claim that he should have been diverted prior to arrest due to his ‘protected characteristics’ under PACE:
“I’ve read this several times and they just don’t get it do they. They continue to maintain [Sam] should have been ‘diverted’ prior to arrest. What utter rubbish!”
WHAT FAMILIES REGARD AS FURTHER ABUSE BY THE INDEPENDENT OFFICE OF POLICE COMPLAINTS (IOPC)
After 4 years of failing to get justice through the formal police complaints process—something the former IPCC managed to fragment into 10 separate complaints, all of which were then systematically rejected—Sam has now taken out a civil law claim against the police under the Data Protection Act and Human Rights Act. Sam’s family still have a list of evidence that the police breached their own procedures and lied to the IPCC, evidence that has never been investigated. They subsequently complained against the former Chief Executive of the IPCC, Lesley Longstone—who paradoxically happens to be Vice Chair of the charity Ambitious About Autism, and since leaving the IPCC, now the Chief Executive of the CPS! These complaints included IPCC breaches of the Police Reform Act, the Equality Act and their own discrimination policy.
For instance, in response to complaints that the police had failed to provide Sam with 'reasonable adjustments', a statutory requirement, the IPCC casework manager's rationale for not upholding the complaint was to state that reasonable adjustments would have made no difference to the outcome of the investigation! The same casework manager also maintained that an assessment for Sam’s fitness for interview was valid even though it was conducted 8 days before the interview took place! And was never disclosed anyway because the police 'lost' it!
After the Chair of the IPCC, Dame Anne Owers, failed to investigate evidence of these breaches of the law by the IPCC in its dealing of Sam’s complaints, the family submitted a complaint on Sam’s behalf about Anne Owers herself to the Home Office body responsible for commissioning the IPCC (now IOPC). They too failed to investigate the details of complaint or provide any rationale for why they concluded there was no case for Ms Owers to answer. Ann Owers subsequently moved on to another lucrative job in the prison service as National Chair of the Independent Monitoring Boards.
All of the former IPCC Commissioner posts were scrapped in the creation of the IOPC, which appears to have been a mechanism for burying all the unfinished business of thousands of those, like Sam, caught up in a complaint service that promised much and delivered nothing but misery and injustice.
As a footnote to Sam’s story, below is part of an audiotaped meeting that Sam’s family held with the IPCC Commissioner involved in the case. She had expressed her intention to undertake an independent investigation of Sam's complaint because of the concerns she expresses below. However, the complaint was dismissed by the IPCC the week after she herself was accused of perverting the course of justice by the Metropolitan Police (in an unrelated case) and had to stand aside from her post pending investigation:
“I feel that there are a number of issues that emerge from that review [the report Kevin Brennan refers to above that provided misleading information to the IPCC], that in my position as Commissioner, leaves me to be concerned about the way the process has been dealt with over the years. ... I am not satisfied that [the Chief Officer who commissioned the review] in his response has addressed all of those issues in a way that satisfies me that there is a conclusion that we can all be happy with, is safe enough for all parties. ... there are issues of discrimination which I think are of concern to the wider public, I think we do need to find a way to look at this independently […] I must advise that there is the possibility that we could decide to go down that line [independent investigation], and we could be challenged by BTP, on the grounds that they think they’ve dealt with this and actually we shouldn’t be doing that, and we will get into a bit of a, you know, a legal minefield.”
Lesson 1: following an autistic adult being apprehended by the police, make a Subject Access Request for disclosure of all records relating to the individual—particularly incident reports, crime reports and custody records. Incriminating allegations may remain on data bases even though no evidence exists to support them.
Lesson 2: be wary of using the IOPC police complaint mechanism to deliver justice—even though there is an expectation you exhaust that process before proceeding to court; experience of FaCA members is that apart from the fact that the process is designed to protect the police rather than hold them accountable, the process itself discriminates against autistic people and is inaccessible to them: e.g. the police can take over a year to investigate a complaint (the IPCC up to 2 years) yet you are only given 28 days to appeal!
Watch here issues relating to autistic rail passengers and BTP being raised in Parliamentary Debate on Autism, 21st Mar 2019