Representing Neurodivergent Defendants

Those working in the criminal justice system (CJS) and directly with defendants will be familiar with the shock, uncertainty, and fear that can accompany prosecution. For neurodiverse defendants, the court process can be all the more confusing and stressful.

The Royal College of Nursing identifies neurodivergence in those whose brain processes learn and/or behave differently from what is considered typical. The term encompasses a range of conditions including autism, attention deficit hyperactivity disorder (ADHD), dyslexia and dyspraxia. Some or even all of these conditions are frequently found together, in a phenomenon sometimes formally referred to as co-morbidity.

Despite a growing awareness of these conditions, there is neither a universal understanding of them nor is there easy (or equal) access to diagnostic tools and support. Adults and children often navigate the criminal justice system without having a formal diagnosis or the language themselves to explain their condition. Those with some prior history of investigation short of a formal diagnosis can find it a struggle to have these issues considered. Indeed, even those with a formal diagnosis can find it hard to have it taken fully into account.

Research as to the prevalence and impact of neurodivergence within the CJS remains limited. In a 2022 report addressing the Youth Justice System, it was found that 80% of children sentenced for any offence (and 87% for a serious violence offence) had been recorded as having Special Educational Needs (SEN). 97% of ‘prolific’ offenders had SEN. These statistics represent a massive over representation of this cohort of children in the justice system.[1]

Figures for adult offenders are very hard to come by, but experience tells those of us working in the system that these conditions are prevalent. The University of Bath, noting that these adults are overrepresented in the CJS, is currently conducting research as to the efficacy of special measures which is likely to be instructive to those of us who recognise the need to use them.[2]

Whilst the MOJ has in recent years provided “Neurodiversity Action Plans” the most recent is dated September 2023 and the ‘substantial’ update which was promised 18 months later has not materialised. Efforts have been made by way of lanyards and raising staff awareness both in policing and in the courts.[3]

As advocates our focus is often on ensuring that our clients can participate properly in the court process. There are many individuals who will need extra support and a variety of mechanisms to provide it such as processing breaks, fidget devices, moderated questions, an intermediary or a trusted person in court.

The impact of these needs goes beyond ensuring adequate participation in the proceedings, however. A defendant’s condition may amount to significant mitigation, require exclusion of evidence, or provide a defence. To identify these aspects of a case, we need to know where to look and how particular conditions work.

Knowing where to look & how to support

An expert report addressing a defendant’s needs is an excellent starting point. If that’s the most important single step, then equipping ourselves with the tools to recognise the traits of neurodiverse clients is plainly an essential part of our duties.

Those tools are available.

The National Autistic Society has a page dedicated to autism in the criminal justice system with advice for all practitioners from arrest to trial. This observes that many individuals with autism will not have a diagnosis. This sets out a list of traits to look out for, as well as common reasons that those with autism might offend.[4] Common examples include:

• Social naivety
• Misunderstanding of social cues
• Rigid adherence to rules
• Not understanding implications of their behaviour

The Advocate’s Gateway has a number of toolkits designed for working with witnesses with autism and communication needs.

The Autism toolkit, for example, deals with particular challenges faced by those witnesses with autism, memory and sensory difficulties which might impact their ability to give best evidence.

The City of London Police has implemented a pilot scheme for screening detainees for ADHD, due to the prevalence of those with the neurotype within the criminal justice system.[5] Similar to autism, it is common for individuals to not be diagnosed at the time of their initial interaction with the criminal justice system.[6] The ADHD Alliance and neurodiversikey, in their guide to police custody, set out a list of reasons why the identification of ADHD in police custody is critical, including the making of false confessions and struggling to acclimatise to custody.[7] Common examples of ADHD traits include:

• Interrupting others whilst speaking
• Does not seem to listen when spoken to by others
• Restlessness
• An apparent lack of consideration for long-term consequences

Often individuals with autism and ADHD additionally have learning difficulties such as dyslexia or dyspraxia. The British Dyslexia Association has signposted a guide for courts and tribunals for dyslexic people, including examples of reasonable adjustments that can be made in the court process.[8] Dyspraxia as a condition is more well-known for the traits associated with physical coordination but can also affect ability to concentrate.[9]

The Advocate’s Gateway has additional toolkits to assist with the questioning of and working with witnesses with hidden difficulties, including ADHD.[10]

With neurodiversity, the stress and uncertainty that comes with court proceedings can exacerbate these traits. As a first step with any neurodiverse defendant or witness, it will help to take a few minutes to explain the layout of the courtroom and those who work within it before the hearing. This may help ease some overstimulation for autistic clients and can help to focus concentration by limiting the unknown stimuli for clients with ADHD before the hearing commences.

Neurodiverse individuals, whether it be autism, ADHD or dyspraxia, may engage in “stimming.” These are self-stimulating repetitive movements and behaviour, believed to assist with self-regulation. In environments which are more stressful and less predictable, stimming may happen more frequently. For the client’s comfort and the tribunal’s understanding of the defendant, it may be prudent to obtain instructions on whether the client is aware of particular stims and make this clear to the judge before the hearing commences.

Another tool for working with defendants with neurodiversity is the accessibility features within Microsoft Word. For clients with difficulties with reading, there is a feature in Word, which reads the document aloud to the user. This is found under the ‘Review’ tab. This feature may be of assistance with clients in approving their proof of evidence or the preparation of their defence statements.

Issues

The following are practical examples of cases where the authors and other member of chambers have encountered and sought to overcome these issues:

Example 1

Allison Hochhalter represented a defendant with ADHD charged with failure to stop, contrary to s. 163 of the Road Traffic Act 1988. He had been part of a group cycling and police indicated with blue lights and sirens that they should pull over. There was a delay between the instruction by police to stop the vehicle and the defendant complying, substantiating the charge.

A common feature of ADHD is a delay in processing auditory information, which was confirmed by the defendant’s instructions. This means that for individuals with ADHD there is a delay in the sound occurring and the brain registering that the sound has occurred and processing the information arising from that sound. In this case, the defendant was only aware of the police presence following visual cues from his friends.

Following representations to the prosecution about the impact of auditory processing disorder on the defendant’s ability to stop following police direction, the prosecution withdrew the charge.

Example 2

A defendant with autism was charged with handling stolen goods, their DNA and fingerprints were found within a stolen vehicle, and the prosecution relied on video footage of a group of males running away from the police following a car chase to demonstrate that they had the requisite knowledge or suspicion.

The reliance on this footage depended upon the identification by officers of the defendant. The individual identified in the footage as the defendant was notably not wearing a hat. This defendant would become overstimulated through sensory overload when he was not wearing something on his head. Therefore, he had a reasonable adjustment both in school and in court proceedings to allow for his wearing a hat at all times.

Allison Hochhalter made representations about the unreliability of the purported identification of the client given this inconsistency. The prosecution discontinued the charge as a result.

Example 3

Aleister Adamson represented a defendant with dual diagnoses of autism and ADHD charged with failing to provide a blood sample under section 7 of the Road Traffic Act 1988.

A psychological report revealed significant impairments in processing speed, verbal comprehension, and perceptual reasoning. Evidence showed the defendant distressed at the roadside and unable to comprehend police instructions to complete the intoximeter. He disclosed his autism diagnosis at the scene.

No appropriate adult was provided in the first instance in the police station, the custody sergeant having not been informed of the defendant’s neurodivergence by the arresting officer. An appropriate adult was only obtained after the blood sample had been taken.

These matters were aired in the course of trial where the failure of officers to adhere to the provisions of PACE Code C was closely examined. The defendant was acquitted following a submission of no case to answer.

This example highlights the legal necessity and moral imperative of procedural safeguards for neurodivergent individuals. Too often, neurodivergent individuals are misunderstood, mischaracterised, or mishandled in custody. Communication differences may be mistaken for non-cooperation. Confusion may be misinterpreted as guilt. Without proper understanding and adherence to Code C, the risk of wrongful convictions and miscarriages of justice looms large.

These examples go to show both the dangers of mistreatment of those with neurodiversity, but also the avenues open to the defence where an individual’s presentation is properly understood.

Conclusion

A proper grasp on recognising symptoms of neurodiversity and how they affect clients is necessary in representing these individuals at all stages of criminal proceedings. It ensures the protection of legal rights for vulnerable defendants at interview, impacts the review and continuation of prosecutions based on incomplete understandings of neurodiversity, and even can offer a complete defence at trial.

In order to best represent defendants, advocates need an understanding of neurodivergent conditions, how they present, how they impact their client at court and in the course of an alleged offence. Informed and empathetic representation can make all the difference.