Considering the fact that research indicates that more than half of prisoners in the UK have sustained a traumatic brain injury – while, in the general population around 2 per cent of people are thought to be living with the effects of brain injury as a result of trauma – it’s clear that brain injury and a risk of imprisonment are inextricably linked.

Here, Paul Shevlin, a specialist at Thompsons Solicitors, discusses how the UK criminal justice system needs to change its approach to people with neurological injuries and what Thompsons is doing to bring that about.

Research shows that more than 50 per cent of inmates in UK prisons are living with a brain injury. This, in itself, is a cause for concern, but when you look into male vs. female offending, the issue is even more acute.

A study by the Disability Trust at HMP Drake Hall in Staffordshire between 2016 and 2018 found that 64 per cent of women screened had an acquired brain injury, of which 62 per cent had developed that injury as a victim of domestic abuse – something which is particularly topical in light of us recently marking International Women’s Day. 

Almost half of the female prisoners with a brain injury had been in adult prison at least five times, adding fuel to the theory that prison can become a revolving door for those with brain injuries and that brain injuries and offending are linked. 

The scale of the issue alone would suggest that to understand the prisoners and – where relevant – acknowledge that they are victims themselves needs the criminal justice system to be aware of and form an appropriate, informed and intelligent response to brain injury.

Headway’s Justice Project officially launched in 2017 with the introduction of a brain injury ID card, recognised and endorsed by the National Police Chiefs’ Council, the Police Federation of England and Wales, and numerous other agencies within the criminal justice system. The personalised photo ID card assists police officers across the UK in identifying people with brain injury to ensure they receive an appropriate response and support. In addition, the wider Justice Project is designed to help promote education and awareness of brain injury across the criminal justice system.

At Thompsons Solicitors, we have been partners in the Justice Project since its inception, providing brain injury survivors with access to specialist legal advice and representation. We manage a 24/7 legal helpline, which gives the cardholder access to legal advice and representation 365 days a year if they find themselves in contact with the criminal justice system.  

The helpline has seen a steady increase in calls year-on-year since it began, topping nearly 500 calls in 2020.

At Thompsons Solicitors, our lawyers were encouraged to read a report by the Equality and Human Rights Commission, published in April 2020, which led to an inquiry into the treatment of disabled defendants – including those with neurodiverse needs – by the criminal justice system. It flagged that legal professionals often rely on defendants disclosing information about their injuries as part of the legal process which, in reality, is something many brain injury survivors are not comfortable or capable of doing. Having the brain injury identified helps mitigate these concerns.

In October 2020, the Sentencing Council published guidance for magistrates and judges on sentencing offenders with mental disorders, developmental disorders and neurological impairments. Headway took part in the consultation and highlighted the importance of including acquired brain injury into the process. Now, new guidance stipulates that such impairments and disorders must be considered by the court, even though they may not necessarily impact on sentencing.

A recent case of ours for a brain injury survivor where the court granted a supervision order – something Headway supported - as an alternative to a custodial sentence saw the benefit of these changes in action. 

It is progress when the criminal justice system acknowledges the benefits of a more holistic approach to the rehabilitation of those with brain injury, who have found themselves in difficulty with the law.

While our job is, where possible and appropriate, to divert people away from criminal justice system – we of course understand that a person who commits a crime will face consequences. Prison however is very often not the answer, and it can be a particularly dangerous place for those with brain injuries, so novel approaches are needed.

Of course, avoiding a case reaching the courts in the first place is the best outcome for our clients. Currently, we are supporting a client in the Midlands who was arrested by the police on suspicion of drug dealing. Thanks to our intervention, due to his brain injury card, the police are now treating him as a vulnerable adult manipulated by others and they are looking for those who took advantage of our client’s vulnerability. 

Without his Headway Brain Injury Identity Card, the call would not have been made to Thompsons Solicitors, and the end result might have been very different. Thanks to The Justice Project, these instances are becoming more commonplace and resulting in more just and better thought through outcomes for all.