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Are neurodivergent children and young people getting a fair hearing in the criminal justice system? Catherine Baksi reports
The low down
For children and young people, the criminal justice system is an intimidating place. No more so than for those with a neurodivergent condition, such as autism, as they face being questioned at a police station or a criminal trial. For many, their involvement in the process may trigger a formal diagnosis. But what then? Despite the existence of guidance and pockets of best practice, many find the operation of criminal justice is disproportionately stacked against them. They may fail to grasp the significance of key developments, exhibit coping mechanisms that are misread, and agree to any suggestion that shortens the process even if it leads to a wrongful conviction. The Ministry of Justice is trying to make improvements; but in a cash-starved system, any positive changes are hard-won.
It was not, for most media, the headline issue. But the two teenagers found guilty of murdering 16-year-old Brianna Ghey were diagnosed with various degrees of neurodivergence after their arrests. Jurors in the trial were told that Boy Y had autism spectrum disorder and selective mutism, which meant that he no longer spoke to anyone except his mother, and that Girl X had traits of autism and attention deficit hyperactivity disorder (ADHD).
During the four-week trial at Manchester Crown Court, both defendants sat in the dock with support workers. Jurors were told that both defendants’ diagnoses could affect how they gave evidence and reacted to questions, and, according to reports, Boy Y was allowed to type his answers in court.
Growing awareness
'No autistic child or young person should be at greater risk of being in the criminal justice system just because they are autistic'
Clare Hughes, National Autistic Society
In the past decade, awareness among ministers, lawyers, judges and others in the court system about the needs of neurodivergent individuals has grown. And as this high-profile case showed, court processes can be adapted to accommodate such people.
But despite that progress, numerous academic and specialist reports accuse the criminal justice system of failing neurodivergent children and adults.
Neurodivergence covers a range of conditions, including ADHD, autism spectrum disorder, developmental co-ordination disorder (dyspraxia), dyslexia and Tourette syndrome.
Because of their communication and cognitive difficulties, neurodivergent children and young people face significant barriers to participating effectively in the criminal justice process.
‘No autistic child or young person should be at greater risk of being in the criminal justice system just because they are autistic,’ insists Clare Hughes, criminal justice manager at the National Autistic Society (NAS).
But the lack of support that neurodivergent youths receive can have dire consequences. It can lead to trauma and subsequently poor mental health, to longer sentences, and to them committing further crimes, according to a report on youth justice published by NAS in October 2022.
A 2021 Criminal Justice Joint Inspection (CJJI) report on neurodiversity in the criminal justice system, which was commissioned by Sir Robert Buckland as justice secretary, found ‘patchy, inconsistent and uncoordinated’ support and ‘serious gaps, failings and missed opportunities at every stage of the system’.
There is also evidence that neurodivergent children are over-represented. At least one in three people in the justice system may be neurodivergent, compared to one in six in the rest of the population, according to Amanda Kirby, honorary professor at Cardiff University and author of the Inspectorate of Probation’s 2021 report ‘Neurodiversity – a whole child approach to youth justice’. Kirby further suggests these rates are much higher among some youth offending groups.
In a separate paper, Kirby notes that 15% of young people in custody are on the autistic spectrum. This compares to 0.6-1.2% of the general population.
Academics and lawyers representing young people insist there is an urgent need for increased awareness of neurodiversity and how such conditions affect defendants’ behaviour. They want to see mandatory training for the police, lawyers and judiciary to ensure defendants are treated fairly and can participate effectively in any criminal justice process.
Establishing good practice
Áine Kervick, a senior associate at London law firm Kingsley Napley who specialises in youth crime, suggests the justice system needs a good practice guide regarding youths with neurodiversity. Where there is concern about a child, the first step, she says, is to speak to the parents or responsible adults, and check medical records that describe how that child’s condition manifests.
Police interviews, says Kervick, ‘are highly stimulating and pressurised environments for all children, let alone a child with autism or ADHD’. To minimise this, she says triggers and stress factors should be limited, by, for example, holding the interview in a witness suite, a solicitor’s office or the client’s home, or by removing ticking clocks.
To cope with such stressful situations, she says neurodiverse children may use self-stimulatory behaviours (‘stimming’), such as making repetitive movements or sounds. They can benefit from using soothing mechanisms such as playing with fidget spinners to calm themselves.
Traditional questioning styles, she adds, are ‘inappropriate’, and lawyers must be prepared to intervene and remind officers to ask questions in an appropriate way. Evidence suggests that autistic children can be more compliant and open to suggestion, in order to please the interviewer and bring the situation to an end sooner.
The National Autistic Society, Kervick notes, advocates using a ‘witness-aimed first account’ which breaks down a child’s memory of an event into smaller topic boxes. ‘If the client doesn’t have a diagnosis but we suspect that they may be neurodivergent, then we often request that an assessment is carried out.’
Lawyers, she stresses, must ‘precisely identify the way in which a client’s particular manifestation’ of their condition is relevant to the offending behaviour presentation to the police, to help them understand why the diagnosis is relevant to a case. ‘At all stages, it is essential to remind the police and CPS of their obligations to your client as a child, and as a child with additional vulnerabilities.’
In these cases, Kervick says it is important to raise a client’s vulnerability with the police at the first opportunity.
There is little research on the experiences of neurodivergent young people in the criminal justice system, but studies in relation to adults provide some insight.
A survey of 93 defence lawyers’ cases over five years, carried out by Cambridge University’s Autism Research Centre, found that 75% of autistic clients were not granted reasonable adjustments during the criminal justice process.
The 2022 research by the NAS found that jurors were not informed that the defendant was autistic in 47% of trials. Lawyers reported that 59% of prosecution barristers and 46% of judges or magistrates said or did something during trial that raised concern that they did not have an adequate understanding of autism. More positively, in cases where an autistic client was convicted, 60% of judges regarded the defendant’s condition as a mitigating factor, which, in most cases, led to sentences being suspended or reduced.
The NAS research confirmed many of the findings of a report from the Equality and Human Rights Commission published in June 2020 which warned that the criminal justice system fails people with learning disabilities or autism.
Sir Simon Baron Cohen, a clinical psychologist and director of Cambridge University’s Autism Research Centre (ARC), explains that autistic children are vulnerable to ending up in the criminal justice system because they may not realise how others view their behaviour, and that they can be exploited by others with criminal intent.
They may also make decisions that they do not realise are risky or develop a kind of ‘tunnel vision where they may become so engrossed that they cross a line, legally’, he says.
Áine Kervick, a senior associate at Kingsley Napley, who specialises in youth crime, says she frequently encounters children with autism and ADHD, who are ‘doubly vulnerable’ by virtue of their age and their neurodiversity.
At the police station, children with neurodevelopmental disorders can find the process more stressful than neurotypical children, and struggle to understand what is happening and the legal language used during interviews and charging.
They may also plead guilty to an offence to please an officer or bring matters to a swifter end without understanding the consequences. Lawyers also say that police will too often charge in cases that are more suitable for diversion.
Kervic says police officers may misinterpret a suspect’s behaviour or apply stereotypical assumptions of how autism affects a child’s behaviour that may not align with how a suspect presents.
‘I see one of the main roles of a defence lawyer in these cases as being to prevent or counteract any misinterpretation of a client’s behaviour by the police or [Crown Prosecution Service] and correct any unfair assumptions about what an autism diagnosis means,’ Kervick says.
In court, the situation can get worse. ‘Summary justice is still not equipped and has no legal procedures’ to deal with neurodivergent children, said one junior barrister who asked to remain anonymous.
Magistrates’ courts, the barrister adds, are ‘not particularly equipped to deal with intermediary applications or other similar applications which might assist people who do have difficulties, particularly if you are in front of a lay bench’.
More often than not, if a client is legally aided, the barrister says the court may be more focused on the money and time ‘wasted’ by considering or allowing such an application, adding that the test for granting special measures sets a higher bar for defendants than for witnesses and complainants.
The level of specialist training given to magistrates, their legal advisers and prosecutors varies wildly across courts, says another barrister.
‘Some courts seem to treat youth proceedings as less serious because of the “lesser” sentencing consequences,’ they add. As a result, cases are rushed, with less care taken to adapt proceedings. There is too much talking over the young person’s head in an effort to decide what is best for them, which has a particularly negative impact on neurodivergent young people.
Investment needed
David Ford JP, deputy national chair of the Magistrates’ Association and a presiding justice in the youth court, says that his colleagues ‘recognise that enabling participation and inclusion in court is key to facilitating the child-first approach’.
The Magistrates’ Association and the Judicial College, he adds, have co-produced materials about how to engage with neurodivergent children and will be publishing e-learning to support presiding youth court justices later this year.
However, underfunding, combined with the failure of the police and CPS to flag up relevant information about a defendant’s vulnerability, mean that some young people ‘fall through the cracks’ and do not get the support they need.
‘I’ve been the first person to properly flag that a young person needs extra support – not something that should be being done at court on the day of trial,’ one barrister says.
'In some cases it’s only through contact with the youth justice services and lawyers that children have got a formal diagnosis, by which time it’s too late'
Shauneen Lambe, Youth Justice Legal Centre
Cuts to services and funding, exacerbated by the Covid-19 pandemic, mean that many undiagnosed neurodivergent children are entering the criminal justice system.
Neurodivergent conditions often manifest as behavioural issues during a child’s life, but go undiagnosed, says Shauneen Lambe, a specialist barrister at the Youth Justice Legal Centre (YJLC).
‘In some cases it’s only through contact with the youth justice services and lawyers that [neurodivergent] children have got a formal diagnosis, by which time it’s too late,’ says Lambe.
Laura Janes, a consultant solicitor at GT Stewart, agrees. ‘Too much is left to the lawyers to pick up these issues. Lawyers are too often the ones who commission the reports that lead to a critically important diagnosis that has not been picked up by statutory services,’ she says. ‘They are too often the ones left with the responsibility of seeking adjournments to enable reports to be completed. It is then for the lawyers to formulate arguments as to why the child’s age, stage of development or diagnosis is relevant to their culpability, with some courts more receptive that others.’
Lambe highlights the existence of some ‘progressive’ youth justice boards in London boroughs. These seek to meet the needs of young people by using speech and language therapists to aid children’s communication with visual aids, and may provide a ‘passport’ explaining the child’s needs to others.
Lambe says many courts are still ‘embedded in the old-fashioned criminal justice system’ and are intimidating for all young people, especially those who are neurodivergent. Such children, she explains, can experience sensory overload, due to the lights and noise, and may struggle to answer questions due to their rigid, literal thinking patterns.
The Equal Treatment Bench Book (ETBB), which is designed to assist judges, includes a section on neurodiversity conditions. This explains difficulties that may arise and suggests adjustments.
The ETBB says that an individual’s anxiety and communication difficulties may result in them coming across as aggressive, shouting, or using self-stimulatory behaviour (stimming), such as fidgeting or humming, as a coping mechanism. It advises judges to avoid figurative language, legal jargon and hypothetical questions, to switch off some lights or fans, and to allow for regular breaks.
The YJLC provides training for lawyers in understanding and identifying issues to consider regarding neurodiversity, and to push for modifications and the use of expert witnesses who can explain to juries autism and its effect on defendants. Lambe says that in one case, an adjustment allowed for the autistic defendant to be present in court only when giving evidence.
Courts can also appoint an intermediary to support people participating in hearings. But Lambe says that the scale of need for these services and the cost of providing them to defendants has led the Ministry of Justice to seek to limit their use.
In TI v Bromley Youth Court [2020] EWHC 1204 (admin), the High Court quashed the decision of a Youth Court district judge to disallow an intermediary from assisting a 14-year-old boy with learning difficulties during his trial, confirming that decisions must be made on a case-by-case basis.
To improve awareness among lawyers, NAS suggests that disability awareness must be a mandatory part of lawyers’ training and continuing professional development, and included in the professions’ codes of conduct.
Among six recommendations to improve outcomes for neurodivergent people, the CJJI’s report called for a ‘coordinated and cross-government approach’ with a programme of awareness-raising and specialist training for staff working in criminal justice services.
The report also recommended introducing a common screening tool throughout the criminal justice system, supported by an information sharing protocol, to ensure that necessary adjustments and extra support are provided. Such screening questionnaires are used in medical settings.
In response, the Ministry of Justice established a cross-government working group of senior officials and relevant agencies, and published an action plan designed to introduce improvements.
This ranged from guidelines for magistrates and judges on taking defendants’ neurodiversity into account and trialling neurodiversity specialists as part of the community sentence treatment requirements.
In September last year, the ministry committed to publishing a final update ‘early’ in 2024.
Of course, as Lambe concludes, the ‘real truth is that we don’t want these kids in the system in the first place’.
Catherine Baksi is a freelance journalist
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