Criminal Justice System and Neurodiversity

Neurodiversity

• Diversity/ variation of cognitive functioning in people

• Everyone has a unique brain and therefore different skills, abilities and needs

Neurodiverse

Describes the diversity and variation of cognitive functioning in people

Neurodivergence

Cognitive functioning which is nor considered ‘typical’

Neurodivergent

Describes people who have a neurodivergence

Neurodiversity: brain differences (Judy singer)

• neuro-cognitive developmental, medical/ genetic conditions whose differences affect the way their brain works

• Not a medical term

• Conditions may co-occur

Co-occurring conditions

• ~15% world population thought to be neurodiverse (1.2 billion)

• ~8% UK citizens have ADHD (5.4 million)

• ~50% ADHD also have dyslexia

• ~50% ADHD also have dyspraxia

• ~90% Tourette’s also have ADHD

• ~66% ADHD present as autistic

• People with ADHD are 8x more likely to meet full criteria for autism

• Behavioural: hyperactivity, agitation/ aggression anxiety

• Medical: constipation and seizures

• Cognitive: language impairment and intellectual disability

• Bio markers: abnormal EEG, altered brain region size and altered/ immune mitochondrial indices

Autism and ADHD

• autism is a neurodevelopmental condition that can present across communication, behaviour and social domains

• ADHD is a behavioural condition that impacts organisation/ time management, impulsivity/ risk taking, hyper focus/ inattentive and restlessness/ impatient

• Overlaps between the two include sensory issues, hyperfixation, interrupting, insomnia, restlessness, stimming, fighting, difficulty with friendships, creativity, OCD tendencies, executive function struggles, emotional dysregulation and depression/ anxiety

Emotional dysregulation and RSD (rejection sensitive dysphoria)

Emotional

• inability to manage emotional responses (low tolerance)

• Trouble steering moods → feeling stuck and unable to feel better

• Easily frustrated

• Mood swings

• Impulsive

• Mania/ hypomania

• Emotions interfering with how you pursue goals

• Losing temper

• Persistent irritability

RSD

• intense feelings of anger when someone hurts your feelings

• Intense feelings of sadness when criticised/ rejected

• Critical of oneself

• Anxious is social settings because you believe nobody likes you

• Avoiding new experiences/ interactions out of fear of criticism/ rejection

• Described as too sensitive

• Treated with alpha-2 agonist, stimulants and MAOIs

Ortoleva 2010

• To be fully included in society, persons with disabilities need access to justice.

• Barriers to justice system → unable to assume full responsibilities/ vindicate their rights

Autism and ADHD (crime)

• sex offences higher in ASC

• Property offences (non violent) higher in ADHD

• 3% ASC charged with at least one offence by adulthood (yu et al 2021)

• 33% incarcerated have a learning difference (mostly dyslexic)

• 80% prisoners have speech, language and communication needs (revolving doors 2022)

• 9% meet ASC criteria and 25% for ADHD (young et al 2017)

• ASD are more likely to be a victim of crime

• Link between ASD and cyber crime (more likely to develop advanced computer/ technological skills) - baron cohen et al 2003

Neurodiversity and CJS

• police misrecognise neurodiverse conditions/ behaviours → unnecessary escalation of force

• Difficulties dealing with the police custody environment (noisy, aggressive, removal of comfort) → not being in the right headspace to make informed decisions and struggle managing themselves

• Neurodiverse conditions not being considered as mitigating circumstances

• Lack of understanding of the courts process due to neurodivergence → limited engagement and ability to make informed decisions

• Lack of understanding of license conditions due to neurodivergence → breach

Challenges in the CJS

• 86% not heard of neurodiversity

• 66% not screened for neurodiversity

• 70% not had adjustments to support neurodivergence needs

• 76% staff did not understand their needs

• 5% had been on a programme/ intervention that was designed/ adapted for their needs

• Good practice/ positive experience = diagnosis, referrals to support, appreciation and willingness to listen and accommodate needs

• People tend to get caught up in the CJS due to services failing to recognise neurodiversity/ failure to provide support

Recommendations and interventions - chief of prisons

• common screening tool for universal use within the CJS and an information sharing protocol between agencies

• Systematically collecting and screening data for an accurate assessment of neurodivergence to inform needs and service planning

• Development and delivery of awareness training programme and specialist training to all staff

• Adjustments to meet needs

• Agencies work together

Intellectual and developmental disability

• significant impairment (IQ less than 70) of intellectual functioning - tested using standardised tests e.g. Wechsler adult intelligence scale

• Significant associated impairment of adaptive/ social functioning - assessed using adaptive behaviour scale

• Age of onset within the developmental period before adulthood - (between childhood and adulthood) to partial out acquired impairment due to disease/ injury

Mental health legislation

• mental health act 1983 covers detention for assessment and treatment of people with intellectual disability who have offended

• 2023 black people were 3.5x more likely to be detained under this act - 228 for evert 100,000

• This statistic could be due to black people being more likely to live in poorer areas, being seen as suspicious due to unconscious bias and more likely to be misinterpreted as aggressive

CJS aims

• reduce crime and reoffending

• Punish offenders

• Protect the public

• Provide victims with reparation

• Increase public confidence

• Ensure system is fair and just

Fitness to plead

• defendants ability to understand and participate in the legal processes within a criminal trial

• Burden of proof = defence

• Standard of proof = balance of probabilities

• Judge may only rule upon this issue where evidence is given by two of more registered medical practitioners (criminal procedure insanity act 1964)

Fitness to stand trial - Howitt

• CJS requires defendants are able to contribute effectively to their own defence (Hollin and swaffer 1995)

• Fundamental requirement of a fair trial

• Dates back to the 14th century

• Particularly important for adversarial justice system whereby winning is the key objective (battle between defence and prosecution)

• Public credibility of the legal process requires: trials are fair, legal process is dignified and demonstrates integrity and the defendant understands the reason why they are being punished (zapf and roesch 2001)

• Inquisitorial system = guided search for the truth by the judge so is not as important defendant is fit for trial

Pritchard criteria - capability of defendant

• give evidence

• Understand charges

• Understand plea

• Challenge jurors

• Instruct legal representatives

• Understand the course of proceedings

Trial of facts

• when someone is unfit to stand trial the court will determine based on the balance of probabilities if they committed the alleged acts based on the evidence

• Dependent doesnt need to be present

• Can’t issue a sentence but can lead to certain orders

Law commission 2010 - unfitness to plead

• A modernised test for unfitness to plead in line with today’s psychiatric and psychological thinking

• Look at the defendants decision making capacity and if they are able to participate effectively

• Can be extended to magistrates and youth courts

• Statutory entitlement to intermediary assistance

Insanity

• defence to criminal charges

• Concerns a persons mental state at the time of the alleged offence

• Criminal punishment should only be imposed upon those who are responsible for their conduct

• Unrelated to psychiatric diagnosis

• Burden of proof = defence

• Standard of proof = balance of probabilities

• S2(1) trial of lunatics act 1883 = not guilty by reason of insanity

R v M’naghten 1843 - insanity

• every defendant is presumed sane unless the contrary is proved

• It must be clearly proved that at the time of committing the act, the defendant was labouring from disease of the mind so did not know the nature and quality of the act they were doing or did not know what they were doing was wrong

Mental illness & culpability

• Mental illness ≠ automatic defence against offending.

• Law considers whether the disorder affected the person’s ability to understand, reason or control their behaviour. - insanity

• Diminished responsibility can reduce murder to manslaughter where a recognised medical condition substantially impaired rational judgement, understanding or self-control.

• diagnosis alone does not determine culpability; its impact on behaviour at the time matters.

• Courts consider acts reas and mens rea - MH is likely to impact mens rea

Mental health in prisons

• Mental-health problems are far more common in prisoners than the general population.

• However, this does not prove mental illness causes crime.

• Relationship is likely bidirectional: offending/incarceration can worsen MH, while shared factors such as trauma, poverty, substance misuse and social disadvantage can contribute to both.

• Most people with mental illness do not offend violently.

Personality disorder & offending

• Particularly antisocial personality disorder (ASPD), which involves traits such as impulsivity, aggression, deceitfulness and disregard for others.

• These traits can increase offending risk but PD does not automatically cause criminality.

• Violence can be influenced by emotional dysregulation, impulsivity, hostile interpretations, poor relationships and substance misuse.

Personality disorder & offending

• Particularly antisocial personality disorder (ASPD), which involves traits such as impulsivity, aggression, deceitfulness and disregard for others.

• These traits can increase offending risk but PD does not automatically cause criminality.

• Violence can be influenced by emotional dysregulation, impulsivity, hostile interpretations, poor relationships and substance misuse.

Neurodiversity & the CJS

Neurodiverse people (e.g., autism, ADHD, dyslexia) may experience:

• Communication and questioning difficulties

• Sensory overload and difficulty coping with stressful environments

• Problems understanding complex legal processes

• Behaviours being misinterpreted as non-compliance or dishonesty

• Difficulties with prison routines and social environments