It is estimated that up to half of the adult prison population could be considered neurodivergent, covering a wide range of conditions and disorders. This highlights the critical need for tailored support and representation in legal proceedings.
Understanding Neurodiversity and its Legal Implications
The term ‘neurodivergent’ or ‘neurodiverse’ refers to individuals whose thought patterns, behaviours, understanding or learning styles fall outside of what is considered ‘typical’.
Neurodiversity is an umbrella term that encompasses a variety of conditions, including:
- Autism
- Pathological demand avoidance (PDA)
- ADHD (Attention Deficit Hyperactivity Disorder)
- OCD (Obsessive Compulsive Disorder)
- Dyslexia
- Dyscalculia
- Dyspraxia
- Development Coordination Disorder
- Tourettes Syndrome
- PTSD (Post Traumatic Stress Disorder)
- FASD (Fetal Alcohol Spectrum Disorder)
- Traumatic Brain Injury (this can cause acquired neurodivergence and is also understood as a medical condition. This can alter an individual’s cognitions behaviour. It may get worse over time or improve.)
There are other conditions and each of these named above will have spectrums and sub-variants, making neurodiversity incredibly complex to understand.
These conditions can significantly affect an individual’s ability to interact with the criminal justice system. A deeper understanding of these conditions is essential for legal professionals to ensure fair and just treatment; as this ensures a fair trial which is a fundamental human right under Human Rights Act 1998.
Be mindful. Supporting Neurodiverse individuals is not a “one size fits all” approach. Whilst we cannot expect every legal professional to be an expert in neurodiverse conditions. Adopting an attitude of openness and flexibility can make a world of difference for your client, especially when providing reasonable adjustments. In doing so legal professionals can significantly improve the experiences of neurodivergent individuals.
It is not just about awareness but about practical actions—ensuring that accommodations are in place, actively listening to clients’ needs, and understanding that neurodiversity is diverse for each individual. These steps uphold the individual’s right to a fair trial and ensure that they are not disadvantaged by a system that wasn’t designed with their needs in mind.
As we move forward, it is important to look at the first stage of an individual’s interaction with the criminal justice system: The Initial Arrest. Ensuring immediate support and advocacy from the outset can be the difference between a fair and unjust outcome.
The Initial Arrest: Immediate Support and Advocacy
The initial arrest phase can be particularly distressing for neurodivergent clients, who may have heightened sensitivities or difficulties with communication. Professionals also may not be aware first hand that their client is neurodiverse or requires reasonable adjustments. This can be for 3 reasons:
- Non-Disclosure of neurodivergent, or other conditions such as a disability, neurodiversity and/or mental health from the client
- Police may not recognise as person who is vulnerable during first encounters
- A disclosure has been made, however information has not been successfully communicated to the criminal solicitor
Given the challenges faced by neurodivergent clients during arrest, it’s therefore important that clear communication channels are established from the start, ensuring that vital information is shared promptly and accurately. This early recognition sets the foundation for criminal solicitors to provide the necessary support and accommodations, tailoring their approach to the client’s specific needs.
Criminal solicitors are essential in providing immediate, tailored support during this critical time. Recognising the signs of neurodiversity early allows solicitors to adapt their approach, ensuring clients receive clear and comprehensible information about their rights and the situation at hand.
Solicitors can advocate for essential accommodations, such as having a support person present during interrogations or ensuring that questioning methods are adapted to the client’s communication style. These adjustments are vital for safeguarding the client’s rights and mental wellbeing. Additionally, solicitors should be vigilant about the potential for misunderstandings between neurodivergent clients and law enforcement, which can exacerbate the client’s stress and complicate the legal process.
By establishing a calm and supportive environment, solicitors can help mitigate the overwhelming nature of an arrest. This might involve using simple, direct language or providing breaks to prevent sensory overload. The goal is to ensure that neurodivergent clients are not disadvantaged from the outset and that they fully understand their situation and rights.
Solicitors could organise for the client to receive an impartial intermediary provided by the court to help with communication and understanding. An intermediary helps to facilitate communication between the client and the justice process. The aim is that it helps develop rapport, reduce anxiety and facilitates accurate communication.
Preparing for Court: Tailored Legal Strategies and Emotional Support
Neurodivergent individuals may be more likely to be held on remand before trial, and they may plead guilty inappropriately due to their cognitive differences or compliant behaviour. Additionally, their neurodivergence is often overlooked during sentencing decisions (Criminal Justice Joint Inspectorates, 2021).
Criminal Justice Joint Inspectorates (2021) review highlighted that Neurodivergent individuals often face significant challenges in court due to cognitive and communication needs. It is important to recognise neurodivergence in advance of hearings to ensure that necessary adjustments, such as additional time or breaks are in place to help them understand and engage with the proceedings.
Delays and cancellations can heighten anxiety, and the complexity of information presented in court may cause overwhelm, and the client may struggle to communicate their confusion and needs. Although issues with court hearings and delays are quite impossible to control, the possibility of change should be communicated.
In some cases, neurodiverse clients might even admit to things they didn’t do or plead guilty due to miscommunication and understanding and/or a desire to comply. Additionally, without proper communication of relevant information to magistrates and judges, the behaviour of neurodivergent individuals can easily be misinterpreted and not acknowledged, leading to unfair outcomes for the client.
Given these challenges, it is key that legal professionals tailor their approach to ensure that neurodivergent individuals are not disadvantaged at any stage of the legal process.
Therefore, preparing a neurodivergent client for court demands a nuanced approach that integrates both legal expertise and emotional sensitivity. Criminal solicitors must develop legal strategies that align with their client’s unique cognitive and communicative abilities.
Providing emotional support is equally crucial. Neurodivergent clients may experience heightened anxiety about court appearances, so solicitors should offer reassurance and a sense of stability. This might involve regular, clear communication and coordinating with mental health professionals to create a supportive environment. Solicitors should also prepare their clients for what to expect in court, from the layout and personnel to the sequence of events, thereby reducing uncertainty and stress. Solicitors advocating for neurodivergent clients may have to think outside the box to prepare clients.
Solicitors must be adept at explaining complex legal concepts in an accessible manner. This may involve breaking down information into manageable segments and using visual aids or straightforward language. By combining tailored legal strategies with empathetic support, criminal solicitors can empower neurodivergent clients to participate more effectively in their defence, ultimately enhancing their chances of a favourable outcome.
Courtroom Representation: Ensuring Fair Treatment
Neurodivergent individuals can face unique challenges in the courtroom, where rigid protocols and complex legal jargon may overwhelm them. Criminal solicitors play a critical role in bridging this gap by ensuring that their clients receive fair treatment. Solicitors should educate the court about the client’s neurodiversity and how it may affect their behaviour or communication. This understanding can help prevent misinterpretations that might negatively impact the case.
A qualitative study on the personal experiences of the CJS among offenders with autism by Helverschou et al (2018) highlighted many of the participants reported feeling that their defence lawyers did not fully represent their side of the story during trial. Although some described their lawyers as pleasant, they often felt their views were overlooked or misunderstood, leading to a lack of effective representation.
Additionally, while a few participants found the trial process acceptable, they still struggled with time constraints and missed opportunities to explain the context surrounding the criminal act. Others found the trial environment overwhelming and stressful, citing difficulties in expressing themselves under pressure, especially when large audiences were present. These challenges highlight the need for greater awareness and adjustments throughout the legal process to ensure fair treatment.
Therefore, advocating for reasonable adjustments, such as allowing breaks or using alternative communication methods, and removal of gowns and wigs, ensures that the client can participate meaningfully in their defence. Criminal solicitors can also liaise with mental health professionals to provide expert testimony that contextualises the client’s actions within their neurodivergent profile.
There are other reasonable adjustments which include giving testimonies through live links, however Fairclogh (2017) highlighted it is rarely applied for the defendants. Without appropriate support when giving evidence it can in turn influence the decision of the jury and impact the outcome.
By adopting these strategies, criminal solicitors help to level the playing field, enabling neurodivergent clients to engage more effectively with the justice system. However, Slavny-Cross (2022) study highlighted that amendments were overall low, despite lawyers disputing that it would be beneficial for their autistic clients.
In summary, it is crucial to recognise and address the unique challenges that neurodivergent individuals encounter within the courtroom setting. The insights from Helverschou et al. (2018) illuminate the significant gaps in representation and understanding faced by these individuals during trials.
Criminal solicitors are positioned to play an essential role in bridging these gaps by advocating for reasonable adjustments and educating the court about the implications of neurodiversity on behaviour and communication.
Implementing strategies such as alternative communication methods, expert testimony, and flexible procedures can enhance the courtroom experience for neurodivergent clients. However, the persistent low rate of such amendments, as noted by Slavny-Cross (2022), highlight a critical need for continued advocacy and systemic change. Ultimately, prioritising the needs of neurodivergent individuals not only ensures fair treatment but also upholds the integrity of the justice system, and the well-being and autonomy of the client.
Post trial support – Navigating Sentencing and Rehabilitation
Navigating the post-trial phase is a critical aspect of supporting neurodivergent clients.
Criminal solicitors must continue their advocacy to ensure that the sentencing process fairly considers the client’s neurodiversity. This involves highlighting how neurodivergent conditions may have influenced the client’s behaviour and ensuring that any sentences are appropriate and just.
A key aspect of this phase is advocating for rehabilitation programmes that are tailored to the client’s specific needs. Traditional rehabilitation approaches may not be effective for neurodivergent individuals. Solicitors should work to secure access to specialised support services, including mental health counselling, vocational training, and educational opportunities that align with the client’s cognitive profile. These tailored interventions can significantly enhance the client’s ability to reintegrate into society and reduce the likelihood of reoffending.
Clear communication remains paramount after sentencing. Solicitors should help clients understand the terms of their sentencing, including any probation requirements or rehabilitation commitments. This might involve breaking down complex legal language into more accessible terms or using visual aids to illustrate key points.
By ensuring that post-trial support is empathetic and comprehensive, criminal solicitors can help neurodivergent clients transition more smoothly into their new circumstances, fostering long-term stability and positive outcomes. This holistic approach not only addresses the immediate legal needs but also supports the client’s broader life journey.
Further Recommendations
By recognising these differences early on and making reasonable adjustments, such as simplifying language, allowing more time for responses, or providing support via intermediaries, CJS professionals can create a more inclusive environment. This not only protects the rights of neurodivergent individuals but also ensures that their voices are heard, and their cases are fully understood.
To better support neurodivergent individuals in the Criminal Justice System, there must be a focus on training and awareness of neurodiversity for all legal professionals. Court staff, solicitors, and judges should receive training on the specific needs of neurodivergent clients, including how their cognitive and behavioural differences may affect their participation in the legal process.
Autonomy is essential, legal professionals should empower neurodivergent clients by allowing them more time to process information, simplifying legal terminology, and advocating for necessary accommodations. More importantly, believe what your client is telling you.
Mandatory neurodiversity and disability awareness should be integrated into ongoing professional development. Only through enhanced understanding and tailored approaches can neurodivergent individuals receive fair treatment and fully participate in their legal defence.
Overall, improving training will improve effective practice and response towards neurodivergent clients. Services should encourage working with individuals who have lived experiences of neurodiversity and navigating the CJS. This would be useful to also develop strategies to help address inequality and improve best practice; but also improve knowledge and understanding of neurodiversity from a lived perspective (Revolving Doors 2022).
Excellent criminal defence lawyers should;
- Be able to identify signs and symptoms of neurodiversity
- Be aware of their clients sensory processing needs
- Ask clients what support they need
- Challenge the default ways of working
- Communicate clearly using appropriate language
- Allow time for their client to process and respond to questions
- Ensure their client understands what is happening
- Provide alternative and accessible information (i.e easy read sheets)
- Simplify legal processes and terminology
- Educate themselves on Neurodiversity and access training events
- Involve their client in the decision-making process if appropriate
- Implement reasonable adjustments
- Help their clients prepare for Court
- Advocate for fair treatment
- Prioritise the long-term wellbeing of their client
Further Resources and References
If you want to find out more, here are some useful resources and references to the cases and studies mentioned throughout this article.
- Catch22. (2022). Neurodiversity in the criminal justice system. Catch22. https://www.catch-22.org.uk/resources/neurodiversity-in-the-criminal-justice-system/
- College of Policing. (2021). Neurodiversity: Glossary of terms. College of Policing. https://assets.college.police.uk/s3fs-public/2021-06/neurodiversity-glossary-of-terms.pdf
- Criminal Justice Joint Inspection. (2021). Neurodiversity in the criminal justice system: A review of evidence. Criminal Justice Joint Inspection. https://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2021/07/Neurodiversity-evidence-review-web-2021.pdf
- Fairclough, S. (2017). ‘It doesn’t happen… and I’ve never thought it was necessary for it to happen’ Barriers to vulnerable defendants giving evidence by live link in Crown Court trials. The International Journal of Evidence & Proof, 21(3), 209-229.
- Helverschou, S. B., Steindal, K., Nøttestad, J. A., & Howlin, P. (2018). Personal experiences of the criminal justice system by individuals with autism spectrum disorders. Autism, 22(4), 460-468.
- KeyRing. (2021). The voices of people with lived experience of neurodiversity in the criminal justice system. Criminal Justice Joint Inspection. https://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2021/07/KeyRing-service-user-report.pdf
- National Autistic Society. (n.d.). Criminal justice: A guide for police officers and professionals. National Autistic Society. https://www.autism.org.uk/advice-and-guidance/topics/criminal-justice/criminal-justice/professionals
- Revolving Doors Agency. (2022). Exploring the links between neurodiversity and the revolving door of crisis and crime: Policy briefing. Revolving Doors Agency. https://revolving-doors.org.uk/wp-content/uploads/2022/09/Revolving-Doors-neurodiversity-policy-position.pdf
- Slavny-Cross, R., Allison, C., Griffiths, S., & Baron-Cohen, S. (2022). Are autistic people disadvantaged by the criminal justice system? A case comparison. Autism, 13623613221140284
A special thank you to Joshua Whitworth, Law & Criminology PHD Student at Sheffield Hallam University, for his insights and knowledge in this complex area which have contributed to this article.
