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Alongside directly engaging and communicating with a neurodivergent client, the lawyer must also be their advocate in a court setting. Representing a neurodivergent defendant before judges and juries requires a barrister to understand who their client is and how they might be perceived by others. Protecting their best interests involves ensuring that this does not unfairly disadvantage a defendant during trial or sentence. This is particularly important in relation to the language, demeanour, and behaviour of a neurodivergent individual. These aspects of the defendant may appear significantly different to neurotypical defendants; they may deviate from the expectations of judges and juries as to appropriate language and behaviour in a court setting and, as a result, may be perceived negatively. Neurodivergent defendants in court may ‘present’ (that is, display outward signs of their neurodivergence) in different ways. An autistic defendant might appear visibly or outwardly unemotional or inexpressive, even if the issues in a trial might be expected to evoke visible emotional reactions in participants (Allely and Cooper, 2017). A defendant with ADHD might fidget, or outwardly appear inattentive or bored by proceedings. Autistic and ADHD defendants might interrupt or interject at inappropriate times (such as during a complainant’s testimony) (see, for example, R v Thompson [2014] EWCA 836). A defendant with a tic disorder may regularly make unusual or disconcerting noises or movements during proceedings. All of the above are relatively common and often overlap – an autistic defendant might display all of the above. Various neurodivergent conditions – including acquired brain injury, dyslexia and dyspraxia – can cause individuals to appear confused; be slow to respond to questions; or appear unable recall information (Criminal Justice Joint Inspection (CJII) 2021). The stress and abnormality of the court setting may exacerbate presentations of neurodivergence, leading to exaggeration of such features. In contrast, some neurodivergent defendants may appear to be hyper-verbal, eloquent and cognisant of proceedings – when in fact this is a ‘camouflage’, disguising their actual level of understanding (Lai, et al., 2017).
Without this context and understanding, neurodivergent presentation in court may be perceived negatively (or its impact underestimated). Neurodivergent individuals who fidget, avoid eye contact or do not answer questions directly might be unfairly and inaccurately perceived as being untrustworthy, suspicious or guilty (Allely and Cooper, 2017). Those who appear unemotional, unresponsive or bored might be judged to lack remorse or be unconcerned about proceedings. Interruptions might be regarded as disrespectful, rude or deliberately disruptive. These perceptions could damage an individual’s credibility in court (particularly before a jury); lead to unfair convictions or punishments; or restrict their ability to participate (for example, being excluded from proceedings).
With this in mind, barristers should seek to ensure that a defendant’s atypical demeanour, behaviour or language is not misjudged and punished; but understood for what it is – an expression of their neurodivergence, which may be difficult to manage or represent a coping strategy in a situation of stress. Doing so not only requires barristers to recognise these differences in their clients, what they mean and why they happen; but to effectively communicate this to the judges, juries and others involved in proceedings. It should not be assumed that the court or other parties will independently recognise and understand a defendant’s presentation. A failure to recognise and understand these potential barriers and to explain them through effective advocacy will undermine a client’s best interests, as well as failing the interests of justice generally.
Ensuring that a neurodivergent individual can participate in proceedings – for example, being able to give and understand evidence – also requires barristers to take action. A neurodivergent client may find court proceedings more stressful, confusing, and distracting than other individuals. The language used and the methods of questioning deployed by opposing barristers may be difficult to understand or engage with. There may be too much or too little sensory input in the court environment (for example, differences in light, noise, temperature), leading to distraction or distress (Crane, et al., 2009). The pace of proceedings and the pressure of the circumstances may be overwhelming for a neurodivergent individual. For example, in R v RT and Stuchfield [2020] EWCA Crim 155, a witness with ADHD had a lengthy wait to give evidence, followed by cross-examination which involved lengthy, complex, repetitive and aggressive questioning. The witness refused to return to court after a short break and gave no more evidence. Transposing this into the context of a defendant, significant barriers could arise. The defendant may refuse to give evidence, which will inevitably undermine how they are perceived (and may lead to adverse inferences under s 35, Criminal Justice and Public Order Act 1994). If they do give evidence, they may be unable to cope with the circumstances, affecting their ability give best evidence (that is, accurate, coherent, and complete (Smith and Shaw, 2022)). They may engage in coping behaviours to manage stress (such as ‘stimming’ (Kapp, et al., 2019)), with such behaviours being misunderstood or misinterpreted without context and understanding (as described above). Again, if barristers fail to intervene to explain and mitigate these negative consequences, they are arguably not acting in the defendant’s best interests; and undermine the interests of justice generally. Moreover, the wellbeing of the defendant is negatively affected by a highly stressful experience, with risks for their mental and physical health (Slavny-Cross, 2022).
To manage these challenges, significant change is needed. Evidence suggests that court professionals have limited training on and understanding of neurodivergence. For example, Maras and others (2017) found only a third had received training on autism; and autistic individuals and carers felt largely unsatisfied and misunderstood by lawyers. Allely and Cooper (2017) have argued there is a ‘need for lawyers to become adept at asking appropriate questions and identifying signs’ of neurodivergence, as they are likely ‘missing the signs’. Most recently, Slavny-Cross and others (2022) found that in around half of cases involving autistic defendants, the jury were not informed about the defendant’s autism or its potential impact; and that nearly 60% of prosecution advocates said or did something suggesting an inadequate understanding of autism. They concluded that ‘[t]here is an urgent need for… legal professionals to receive mandatory autism awareness training’, and noted that ‘the impact for an autistic defendant of receiving legal counsel from an autism aware legal team may be far reaching’ – particularly in relation to effective communication, and providing mitigating circumstances and arranging reasonable adjustments.
So, what does ‘good’ lawyering looks like in this context; and how do we get to that position? Ideally, barristers will have at least basic awareness and knowledge of neurodivergence generally; be able to recognise potential signs of a neurodivergent defendant; and act as a form ‘triage’, seeking support for working with their client and making appropriate adaptations. A key first step will be the ability to identify neurodivergence. General screening for neurodivergence in criminal justice systems is highly fragmented and incoherent (CJII 2021); the onus therefore currently falls on individual practitioners working with neurodivergent individuals to be alive to the possibility of vulnerability. This requires barristers to develop greater awareness and understanding of different types of neurodivergence; how this may present itself; and how to adapt their approach. Suggestions for facilitating this might include mandatory training for barristers on neurodivergence (via regulators and representative bodies, such as the Criminal Bar Association); the provision of basic, accessible screening tools for advocates; and access to or signposting for referrals and additional assessment – it is important to highlight that barristers are lawyers not clinicians, and should not be expected to become experts on neurodivergence (CJII, 2021).
The second step is for barristers to adapt to a neurodivergent defendant’s needs, both in terms of their personal interactions; and in representing them to others. With a defendant’s consent, the barrister could ensure that appropriate people (judges, tribunals, jurors) are aware of their client’s neurodivergence; how it presents; and what this means. They should seek, where appropriate, more time for a defendant to process and assess questions or requirements in proceedings. They could ensure, via Ground Rules Hearings, that all parties to proceedings are clear on the best approach to engaging with a neurodivergent individual in court (for example, using short, closed questions; providing additional time; having regular breaks – see The Advocate’s Gateway). They – where possible within the restrictive legislative framework – should request adjustments to standard court proceedings (for example, the use of video evidence); or ask the court to exercise its inherent discretion to allow support, such as an intermediary, sensory adjustments or aids to communication. Barristers should consider whether accessing external support and advice (such as expert evidence and family supporters) would be helpful (Allely, 2022). Where appropriate, barristers should proactively intervene to enable a neurodivergent defendant to manage proceedings (for example, by requesting revised questioning by opposing advocates); or to correct misleading assumptions about behaviour, demeanour or language. Arguably, most of these adaptations are simple and low-cost, and will already be common practice in relation to some vulnerable defendants; but implementing them does depend on awareness, knowledge, communication, and collaboration between barristers and others.
Barristers cannot be stand-alone crusaders for fairness in the context of neurodivergent defendants. Alongside lawyers, the judiciary, police, and officials of courts, prisons and probation should all have adequate awareness and knowledge of neurodivergence. As a form of check and balance, all should be alive to issues in each other’s practice: a failure by the defence to highlight a defendant’s neurodivergence should not be left uncorrected if this is recognised by a prosecutor. Arguably, the judiciary should take the lead since they will be responsible for managing court proceedings. The CJS needs to have clear, cooperative communication; appropriate information sharing; and use of external expertise – currently areas which are not adequate. Criminal justice is a collaborative system involving many different individuals and interactions – change must therefore be systemic. However, as is often the case, the Bar can lead the way.
References and further information
Criminal Justice Joint Inspection Neurodiversity in the criminal justice system: a review of evidence, July 2021
‘You can’t judge a book by its cover: evolving professional responsibilities, liabilities and ‘judgecraft’ when a person has Asperger’s Syndrome’, Allely and Cooper, Northern Ireland Legal Quarterly 68(1) 2017
‘Quantifying and exploring camouflaging in men and women with autism’, Lai, et al., Autism Aug; 21(6), 2017
‘Sensory processing in adults with autism spectrum disorders’, Crane et al 2009, Autism 2009 May;13(3)
Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, Smith and Shaw, 2022
‘People should be allowed to do what they like: Autistic adults’ views and experiences of stimming’, Kapp et al, Autism 2019 Oct; 23(7) 2019
Autism and the criminal justice system: An analysis of 93 cases, Slavny-Cross and others, 2022
‘Brief Report: Autism in the Courtroom: Experiences of Legal Professionals and the Autism Community’, Maras and others, J Autism Dev Disord 2017 Aug;47(8)
Toolkits for advocates working with vulnerable witnesses and defendants are available on: www.theadvocatesgateway.org
‘Neurodivergence in the CJS and role of the Bar (1)’, by Dr Tom Smith, appeared in the October 2022 issue of Counsel.
Dr Tom Smith is Associate Professor in Law at the University of the West of England (UWE), Bristol; and Joint Co-ordinator of the Neurodivergence in Criminal Justice Network (NICJN).
Alongside directly engaging and communicating with a neurodivergent client, the lawyer must also be their advocate in a court setting. Representing a neurodivergent defendant before judges and juries requires a barrister to understand who their client is and how they might be perceived by others. Protecting their best interests involves ensuring that this does not unfairly disadvantage a defendant during trial or sentence. This is particularly important in relation to the language, demeanour, and behaviour of a neurodivergent individual. These aspects of the defendant may appear significantly different to neurotypical defendants; they may deviate from the expectations of judges and juries as to appropriate language and behaviour in a court setting and, as a result, may be perceived negatively. Neurodivergent defendants in court may ‘present’ (that is, display outward signs of their neurodivergence) in different ways. An autistic defendant might appear visibly or outwardly unemotional or inexpressive, even if the issues in a trial might be expected to evoke visible emotional reactions in participants (Allely and Cooper, 2017). A defendant with ADHD might fidget, or outwardly appear inattentive or bored by proceedings. Autistic and ADHD defendants might interrupt or interject at inappropriate times (such as during a complainant’s testimony) (see, for example, R v Thompson [2014] EWCA 836). A defendant with a tic disorder may regularly make unusual or disconcerting noises or movements during proceedings. All of the above are relatively common and often overlap – an autistic defendant might display all of the above. Various neurodivergent conditions – including acquired brain injury, dyslexia and dyspraxia – can cause individuals to appear confused; be slow to respond to questions; or appear unable recall information (Criminal Justice Joint Inspection (CJII) 2021). The stress and abnormality of the court setting may exacerbate presentations of neurodivergence, leading to exaggeration of such features. In contrast, some neurodivergent defendants may appear to be hyper-verbal, eloquent and cognisant of proceedings – when in fact this is a ‘camouflage’, disguising their actual level of understanding (Lai, et al., 2017).
Without this context and understanding, neurodivergent presentation in court may be perceived negatively (or its impact underestimated). Neurodivergent individuals who fidget, avoid eye contact or do not answer questions directly might be unfairly and inaccurately perceived as being untrustworthy, suspicious or guilty (Allely and Cooper, 2017). Those who appear unemotional, unresponsive or bored might be judged to lack remorse or be unconcerned about proceedings. Interruptions might be regarded as disrespectful, rude or deliberately disruptive. These perceptions could damage an individual’s credibility in court (particularly before a jury); lead to unfair convictions or punishments; or restrict their ability to participate (for example, being excluded from proceedings).
With this in mind, barristers should seek to ensure that a defendant’s atypical demeanour, behaviour or language is not misjudged and punished; but understood for what it is – an expression of their neurodivergence, which may be difficult to manage or represent a coping strategy in a situation of stress. Doing so not only requires barristers to recognise these differences in their clients, what they mean and why they happen; but to effectively communicate this to the judges, juries and others involved in proceedings. It should not be assumed that the court or other parties will independently recognise and understand a defendant’s presentation. A failure to recognise and understand these potential barriers and to explain them through effective advocacy will undermine a client’s best interests, as well as failing the interests of justice generally.
Ensuring that a neurodivergent individual can participate in proceedings – for example, being able to give and understand evidence – also requires barristers to take action. A neurodivergent client may find court proceedings more stressful, confusing, and distracting than other individuals. The language used and the methods of questioning deployed by opposing barristers may be difficult to understand or engage with. There may be too much or too little sensory input in the court environment (for example, differences in light, noise, temperature), leading to distraction or distress (Crane, et al., 2009). The pace of proceedings and the pressure of the circumstances may be overwhelming for a neurodivergent individual. For example, in R v RT and Stuchfield [2020] EWCA Crim 155, a witness with ADHD had a lengthy wait to give evidence, followed by cross-examination which involved lengthy, complex, repetitive and aggressive questioning. The witness refused to return to court after a short break and gave no more evidence. Transposing this into the context of a defendant, significant barriers could arise. The defendant may refuse to give evidence, which will inevitably undermine how they are perceived (and may lead to adverse inferences under s 35, Criminal Justice and Public Order Act 1994). If they do give evidence, they may be unable to cope with the circumstances, affecting their ability give best evidence (that is, accurate, coherent, and complete (Smith and Shaw, 2022)). They may engage in coping behaviours to manage stress (such as ‘stimming’ (Kapp, et al., 2019)), with such behaviours being misunderstood or misinterpreted without context and understanding (as described above). Again, if barristers fail to intervene to explain and mitigate these negative consequences, they are arguably not acting in the defendant’s best interests; and undermine the interests of justice generally. Moreover, the wellbeing of the defendant is negatively affected by a highly stressful experience, with risks for their mental and physical health (Slavny-Cross, 2022).
To manage these challenges, significant change is needed. Evidence suggests that court professionals have limited training on and understanding of neurodivergence. For example, Maras and others (2017) found only a third had received training on autism; and autistic individuals and carers felt largely unsatisfied and misunderstood by lawyers. Allely and Cooper (2017) have argued there is a ‘need for lawyers to become adept at asking appropriate questions and identifying signs’ of neurodivergence, as they are likely ‘missing the signs’. Most recently, Slavny-Cross and others (2022) found that in around half of cases involving autistic defendants, the jury were not informed about the defendant’s autism or its potential impact; and that nearly 60% of prosecution advocates said or did something suggesting an inadequate understanding of autism. They concluded that ‘[t]here is an urgent need for… legal professionals to receive mandatory autism awareness training’, and noted that ‘the impact for an autistic defendant of receiving legal counsel from an autism aware legal team may be far reaching’ – particularly in relation to effective communication, and providing mitigating circumstances and arranging reasonable adjustments.
So, what does ‘good’ lawyering looks like in this context; and how do we get to that position? Ideally, barristers will have at least basic awareness and knowledge of neurodivergence generally; be able to recognise potential signs of a neurodivergent defendant; and act as a form ‘triage’, seeking support for working with their client and making appropriate adaptations. A key first step will be the ability to identify neurodivergence. General screening for neurodivergence in criminal justice systems is highly fragmented and incoherent (CJII 2021); the onus therefore currently falls on individual practitioners working with neurodivergent individuals to be alive to the possibility of vulnerability. This requires barristers to develop greater awareness and understanding of different types of neurodivergence; how this may present itself; and how to adapt their approach. Suggestions for facilitating this might include mandatory training for barristers on neurodivergence (via regulators and representative bodies, such as the Criminal Bar Association); the provision of basic, accessible screening tools for advocates; and access to or signposting for referrals and additional assessment – it is important to highlight that barristers are lawyers not clinicians, and should not be expected to become experts on neurodivergence (CJII, 2021).
The second step is for barristers to adapt to a neurodivergent defendant’s needs, both in terms of their personal interactions; and in representing them to others. With a defendant’s consent, the barrister could ensure that appropriate people (judges, tribunals, jurors) are aware of their client’s neurodivergence; how it presents; and what this means. They should seek, where appropriate, more time for a defendant to process and assess questions or requirements in proceedings. They could ensure, via Ground Rules Hearings, that all parties to proceedings are clear on the best approach to engaging with a neurodivergent individual in court (for example, using short, closed questions; providing additional time; having regular breaks – see The Advocate’s Gateway). They – where possible within the restrictive legislative framework – should request adjustments to standard court proceedings (for example, the use of video evidence); or ask the court to exercise its inherent discretion to allow support, such as an intermediary, sensory adjustments or aids to communication. Barristers should consider whether accessing external support and advice (such as expert evidence and family supporters) would be helpful (Allely, 2022). Where appropriate, barristers should proactively intervene to enable a neurodivergent defendant to manage proceedings (for example, by requesting revised questioning by opposing advocates); or to correct misleading assumptions about behaviour, demeanour or language. Arguably, most of these adaptations are simple and low-cost, and will already be common practice in relation to some vulnerable defendants; but implementing them does depend on awareness, knowledge, communication, and collaboration between barristers and others.
Barristers cannot be stand-alone crusaders for fairness in the context of neurodivergent defendants. Alongside lawyers, the judiciary, police, and officials of courts, prisons and probation should all have adequate awareness and knowledge of neurodivergence. As a form of check and balance, all should be alive to issues in each other’s practice: a failure by the defence to highlight a defendant’s neurodivergence should not be left uncorrected if this is recognised by a prosecutor. Arguably, the judiciary should take the lead since they will be responsible for managing court proceedings. The CJS needs to have clear, cooperative communication; appropriate information sharing; and use of external expertise – currently areas which are not adequate. Criminal justice is a collaborative system involving many different individuals and interactions – change must therefore be systemic. However, as is often the case, the Bar can lead the way.
References and further information
Criminal Justice Joint Inspection Neurodiversity in the criminal justice system: a review of evidence, July 2021
‘You can’t judge a book by its cover: evolving professional responsibilities, liabilities and ‘judgecraft’ when a person has Asperger’s Syndrome’, Allely and Cooper, Northern Ireland Legal Quarterly 68(1) 2017
‘Quantifying and exploring camouflaging in men and women with autism’, Lai, et al., Autism Aug; 21(6), 2017
‘Sensory processing in adults with autism spectrum disorders’, Crane et al 2009, Autism 2009 May;13(3)
Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, Smith and Shaw, 2022
‘People should be allowed to do what they like: Autistic adults’ views and experiences of stimming’, Kapp et al, Autism 2019 Oct; 23(7) 2019
Autism and the criminal justice system: An analysis of 93 cases, Slavny-Cross and others, 2022
‘Brief Report: Autism in the Courtroom: Experiences of Legal Professionals and the Autism Community’, Maras and others, J Autism Dev Disord 2017 Aug;47(8)
Toolkits for advocates working with vulnerable witnesses and defendants are available on: www.theadvocatesgateway.org
‘Neurodivergence in the CJS and role of the Bar (1)’, by Dr Tom Smith, appeared in the October 2022 issue of Counsel.
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James Onalaja concludes his two-part opinion series
