Criminal legal system and neurodiversity

Neurodiversity: Brain Differences

• Neuro-cognitive developmental, medical, or genetic conditions whose differences affect the way their brain works.

• NOT a medical term

• Coined by Judy Singer (Australian Sociologist, 1998)

• Conditions may co-occur

Co-Occurring Conditions

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

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

• ~50% of people with ADHD are also dyslexic

• ~50% of people with ADHD are also dyspraxic

• ~90% of people with Tourette's also have ADHD

• ~66% of people with ADHD present with Autism Spectrum traits

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

Autism & ADHD (AuADHD)

Autism is a neurodevelopmental condition that can present across three domains:

• Communication

• Behaviour

• Social

ADHD is a behavioural condition

• Organization & Time Management

• Impulsivity & Risk taking

• Hyper focus & Inattentive

• Restlessness and ImpatientD so

Emotional Dysregulation

The inability to manage emotional responses (low window of tolerance)

• Behaviours:

• Having trouble steering your moods, causing you to feel stuck or unable to make yourself feel better, especially with negative moods and emotions like depression, anxiety, etc.

• Becoming easily frustrated by small inconveniences or annoyances.

• Mood swings.

• Impulsive behaviour.

• Mania or hypomania.

• Trouble with emotions interfering with how you pursue goals and achieve desired

• Being prone to losing your temper.

• Persistent irritability or anger between outbursts.

Rejection Sensitive Dysphoria

RSD is not an official diagnosis, people with RSD are likely to:

• Intense feelings of anger when someone hurts your feelings

• Intense feelings of sadness when you feel criticized or rejected

• Being very critical of yourself

• Feeling extremely anxious in social settings because you believe no one likes you

• Avoiding new experiences and interactions with new people because you're afraid of being rejected or criticized

• Being described as too "sensitive" by others

• Feeling physical pain in response to unpleasant emotions stemming from rejection or criticism

Treated with Alpha-2 r agonists (improves emotional signals), Stimulants (processing / communication), Monoamine oxidase inhibitors - MAOls (improves sensitivity to rejection)

Autism & ADHD in Criminal Contexts

• Sex offences higher in ASC than ADHD

• Property offenses (nonviolent) higher in ADHD

• No difference in violent offenses (Rutten et al., 2021)

• 3% of Autistic individuals charged with at least one offence by adulthood (Yu et al.,
  2021)

• 33% of incarcerated people have a learning difference (most dyslexic)

• 80% prisoners have speech, language and communication needs (Revolving Doors,
  2022)

• 9% meet ASC criteria and 25% for ADHD (Young et al., 2017)

Neurodiversity Relevant to CLS

Examples of disadvantages include:

• The police misrecognizing neurodiverse conditions, and behaviors relating to these conditions, leading to the unnecessary escalation of force

• Difficulties dealing with the police custody environment - leading to people not being in the right headspace to make informed decisions

• Neurodiverse conditions not being considered as part of mitigating circumstances

• Lack of understanding of the courts process because of neurodivergence, limiting engagement with a case and the ability to make informed decisions

• Lack of understanding of license conditions due to neurodivergence, potentially leading to breach

Challenges to CLS

86% of service users had not heard the term neurodiversity

66% of users were not screened for neurodiverse conditions

70% of users had not had any adjustments made to support their neurological needs

76% of users stated that staff in the CJS did not understand their needs

Only 5% of users had been on a programme or intervention that was designed or adapted for their needs

Some of the Chief of Prison's other recommendations include:

• A common screening tool for universal use within the criminal justice system, supported by an information sharing protocol which specifies how information should be appropriately shared within and between agencies,

• Systematically collecting and aggregating screening data to provide a more accurate assessment of neurodivergence that can inform needs analysis and service planning at all levels of the criminal justice system,

• The development and delivery of a programme of awareness-raising and specialist training to staff working within criminal justice services, and

• Adjustments to meet the needs of those with neurodivergent conditions throughout the criminal justice system.

• Criminal justice system agencies should work together and with other statutory and third sector organisations in a coordinated way

The three core criteria for IDD (intellectual and developmental disability)

• Significant impairment of intellectual functioning - Will be tested using standardised tests, such as Wechsler Adult Intelligence Scale (Wechsler, 2010).
  Significant impairment is generally defined as IQ less than 70;

• Significant associated impairment of adaptive or social functioning - Assessed using Vineland Adaptive Behaviour Scale (VABS) or Adaptive Behaviour Scale - Residential and Community (ABS-RC:2);

• Age of onset within the developmental period before adulthood - The period between childhood and adulthood, This is should partial out acquired impairment in adulthood due to disease or injury.

Mental Health Legislation

• The legislation covering detention for assessment and treatment of people with ID who have offended or engaged in offending behaviour is covered by the Mental Health Act, 1983 for England and Wales and the Mental Health Act 2006 in Scotland.

• Severe impairment

• Significant impairment

• in the year to March 2023, black people were 3.5 times as likely as white people to be detained under the Mental Health Act - 228 detentions for every 100,000 black people, compared with 64 for every 100,000 white people

What does the court have to say?

We have now introduced a variety of factors that may have the potential to draw someone into the CJS, whether as a victim, witness or defendant. 

Let's take the example of Fitness to stand trial. The Criminal Justice System in England and Wales operates to:

-To protect the public

-To provide victims with reparation;

-To increase public confidence.

-To ensure the system is fair and just

Fitness to plead

Partcipate in the logal processes within d

criminal trial

• Burden of Proof: typically the defence

•Standard of Proof: typically on the balance of probabilities

Pritchard criteria

Understand the changed

Understand the plea

Challenge jurors

Instruct his legal representatives

Understand the course of the proceedings

Give evidence

Insanity

• Insanity in English law is a defence to criminal charges and it primarily 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

• A purely legal concept and is unrelated to a psychiatric diagnosis.

Insanity - R v M’Naghten (1843)

• 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 under such a defect of reason, from disease of the mind, so as not to know the nature and quality of the act they were doing; or if they did know it, that they did not know what they were doing was wrong.

• s2(1) of the Trial of Lunatics Act 1883 =
Not guilty by reason of insanity