Autism and the criminal justice system

I recently represented the Law Society at a national conference on Autism and the Criminal Justice system. This conference was organised and run by a project team made up of specialist psychologists from the British Psychology Society.

I have a special interest in this area arising from being a defence solicitor in London many years, but also due to the fact that I have a family member who has a severe speech and language impairment disability and who is on the Autistic Spectrum. Furthermore, I have been a special educational need governor in a school for 10 years.

The purpose of the conference and the ongoing work of the group is to identify the issues and the improvements that are needed to support those with Autistic Spectrum Disorder (ASD ) so that they can fully participate in the criminal justice system whether they be a victim, witness or defendant.

All the criminal justice groups were represented including the National Autistic and local autistic societies, the judiciary, bar, police and registered Intermediaries. Some of those professionals who spoke at the conference were autistic themselves. Most solicitors’ knowledge and perception of autism is limited to a stereotype who excels in one area of life such as the character in the film Rain Man starring Dustin Hoffman. This portrayal does not reflect the more common autistic person. As Richard Mills, a director of the National Autistic Society said at the conference, when you have met one autistic person you have met one autistic person. All are different with varying complexities. Diagnosis is difficult and should be left to qualified clinicians. There are some common traits in autism such as language impairment; difficulty with social skills, body language and personal space; difficulty in understanding and comprehending, including taking language in its literal sense. This can all put them in a disadvantageous position in the criminal justice system.

Many find loud noise disconcerting. Can you imagine how an autistic person must feel locked in a small dark or over-lit cell with metal doors banging loudly, while listening to those under the influence of drugs and alcohol scream and shout around them in an inter city police station. Many of those on the autistic spectrum are not identified in the police station and will not even have an appropriate adult appointed to assist them. Some of those identified will need a trained intermediary to help them understand and communicate in the police station but there is no provision for such in the police station; although there may be for a victim or witness.

Hampshire police, working with the Hampshire Autistic Society, has a data base of those known to be on the spectrum, and encourages the carrying of autism alert cards, which leads to early identification. How can an autistic person understand the very badly drafted police caution, when many without a disability cannot understand it. Local courts are closing and autistic persons, who may have difficulty travelling on their own, may have to travel long distances to court, changing between different types of public transport. Cutbacks in the court service has resulted in the closure or limited opening of information desks to assist them at court. Trials are not fixed but stacked two or three a day in one court. This delay in their case commencing at a set time will cause great distress and anxiety to an autistic person and severely lower the quality of their evidence, when given late in the day. The obsession with speed in criminal justice means that pleas and case management must be progressed on the first occasion but autistic people need time to understand and articulate their case.

The special measures provisions to assist the vulnerable victim and prosecution witnesses are now well established, but it is only recently that there is more recognition and consideration for the vulnerable defendant. Do not forget that the defendant is also a witness in the court proceedings.       

The court can appoint an Intermediary for the defendant on an application (section 29 of the Youth Justice and Criminal Evidence Act 1999) but getting prior authority for the financial cost, from the Legal Aid Agency, for an assessment report to support the application can be difficult where there has yet to be a diagnosis of autism. Furthermore, remember that the court appoints the intermediary and is responsible for the costs of them attending court. It is difficult for an inexperienced defence solicitor to identify an intermediary to instruct because the defence do not have access to the list of Registered Intermediaries held and used by the police where all will have been professionally vetted and professionally governed. Many Intermediaries will act for the defence, but in any event the list is very small at present, 105 intermediaries for the whole country.

Cases with autistic participants need to be fixed by courts to avoid anxiety and to ensure the availability of the appointed intermediary. There needs to be a ‘ground rules’ hearing for the trial advocates and judge to agree the length of examination and breaks. There is also the issue of how the judge will explain the presence of the intermediary next to the defendant, to the jury. For advice on how advocates should question autistic witnesses in court, I can recommend the toolkit developed by Joyce Plotnikoff, with assistance from intermediaries and barristers. This deals with such matters as using simple words, short simple questions and unambiguous language. What is clear that training is needed for the Judiciary, and advocates for both the prosecution and defence and this is something that is now being looked at by all the professional bodies.

Those are on the autistic spectrum are more likely to be a victim than an offender but many are easily led, anxious to be accepted by others, and as a result are often left behind at the scene of the crime to take the blame for others who had greater involvement. However, there is a growth in offending arising from social isolation and high usage of the internet, particularly offences of stalking and harassment often arising from their misinterpretation of a new social relationship. Additionally, some on the autistic spectrum who find it difficult to form relationships, particularly sexual ones, will sometimes become involved in downloading indecent images. Autistic people are often susceptible to cyber radicalisation, leading to involvement in terrorism offences. or driven by an overriding desire to find and prove something leading to computer hacking without understanding the implications, as in the Gary McKinnon case.

An appropriate adult may not have the required communication skills to assist an autistic suspect and schemes need to be extended and funded to cover the use of intermediaries in the police station by the defence, and to assist with the taking of instructions which may take considerable time and several sessions. At the present time, the intermediary is being appointed only at the point of trial rather than assisting from the moment of arrest. Psychologists working with sentence serving prisoners are making first diagnosis of prisoners with autism in the prisons, and these are autistic prisoners who have had to conduct their whole case without diagnosis and appropriate support.

It is essential that improvements are made to identify early on those in the criminal justice system who have ASD so that they can be provided with the appropriate professional support they need in order for them to meaningfully access and participate in their case, and to ensure equality of arms and ultimately a fair trial for all those participating in the case.

Graeme Hydari is a consultant solicitor at Hodge Jones & Allen London and a member of the Law Society Criminal Law Committee