We were delighted to host the second webinar in our series exploring neurodivergence in the justice system.
This webinar discussed representing neurodiverse clients in the areas of crime and immigration, assisted by a leading psychologist, academics in the field and neurodiversikey™. neurodiversikey™ is an organisation dedicated to neuroinclusion throughout the justice system, at all levels and from all perspectives, from law enforcement to the judiciary. The session drew on the panel’s experience in representing youths and vulnerable adults, with a variety of mental health and neurodivergent learning difficulties, who require an intermediary. We also heard from academics on their associated research.
Timestamps:
– Tom Wainwright, Garden Court Chambers, Introduction (00:00)
– Mark Robinson, Garden Court Chambers, Chair (02:34)
– Emma Llanwarne & Danielle Gleicher-Bates, neurodiversikey™ (04:14)
– Dr Anne-Marie Day, Keele University (12:18)
– Dr Claire S.Allely, University of Salford (33:29)
– Dr Max Lowenstein, Bournemouth University (48:34)
– Amanda Weston KC, Garden Court Chambers (01:07:04)
– Q&A (01:29:00)
Welcome everyone uh to the uh second in the Garden Court series of webinars on neuro Divergence in the justice system um I just wanted to introduce very briefly before handing over to Mark uh the reason for bringing this series of webinars together the idea was to try and bring together uh experts and
Practitioners from different areas uh of the justice system different specialisms crime immigration family civil uh people who practice um academics other people with experience of of the issues and to examine where the justice system was getting it right uh in relation to uh neurod Divergent participants where it was getting it
Wrong uh and how we might be able to affect um change uh for the better whether that be as an indiv idual level for practitioners dealing with individual cases or in um Making Connections um through this series building uh Bridges learning from uh those other areas uh of Law and working
Together to improve um things on a broader um bigger level um so that is the uh hope um that um that may come out of this series uh as I say there are a number of uh further webinars to come uh if you want to join up to those if you
Haven’t already then please do check out our events page um also has another number of other uh webinars that Garden course putting on on lots of different topics that you may be interested in um but as I said it’s the sharing of that knowledge information and experience which I think is really key
Uh behind um improving things in the justice system um and I know that Mark is going to uh make mention of some of the projects that people have already been in in touch about uh the research uh that’s going on uh and other events so if there is anything that any of you
Involved in of that nature then please do please do Dr us a line um so having uh welcomed you all and introduced uh this evening’s webinar I’m delighted to hand over to Mark Robinson who will be your chair for this evening thank very much welcome to you all um pleasure to
Have you all here for the neurodiversity webinar and this is the second part of the neurodiversity webinar series well this webinar we’ll discuss representing neurodiverse clients in the areas of crime and immigration we’re going to be assisted tonight by the wonderful neurodiverse key a leading psychologist and academics in the field
Neurodiversity is key is an organization dedicated to neuro inclusion throughout the justice system at all levels and from all perspectives from law enforcement and to the Judiciary and it’s HED that this session will draw on the panel’s experience in representing youths and vulnerable adults and a variety of mental health and neurod
Divergent learning difficulties who require an intermediary we also hear from academics on their Associated research in in this field many thanks again to you all for joining us um hopefully you’ll get a lot out of this session so first up we have the neurod divers key team we have Emma Lan Wong
Who is the co-founder of neurodiversity key and is a consultant criminal defense pargal who was also called to the bar in 2022 and she’s joined with the co-founder Daniel gler Bates and she is um also a bar vocational um student and a double scholar at the City University
Of London so without further Ado I will hand you over to neurodiverse is key thank you thank you Mark Emer and I will be giving you a Whistle Stop tour of neurodiversity uh beginning with terminology and individual neurot types before focusing on ADHD in police custody and finally looking at
Intersectionality on the first slide we have a very brief overview of the terminology that we use when talking about neurodiversity so neurodiversity encompasses all of the different forms of neurocognitive functioning across Humanity which includes both neurotypical and neurodivergent neurotypical describes neurocognitive functioning that falls within the range that Society deems
Typical whereas neurod Divergence describes neurocognitive functioning that falls outside the range Society deemed typical and so it’s therefore deemed atypical a neurotype is the term for a particular form of neurocognitive functioning or brain wiring for example neurotypical or neurodivergent neurodiverse describes a group of people which is made up of more
Than one neurotype for example a mix of both neurotypical and neurod Divergent neurot types ADHD is mainly associated with differences in attention activity and impulsivity autism is mainly associated with differences in social communication social interaction and processing information including sensory information the next four all come under the umbrella of specific learning
Differences disc calcula is mainly associated with difference in understanding numerical information disra Maia is mainly associated with differences in written expression dyslexia is mainly associated with differences in processing information and language and lastly dyspraxia is mainly associated with difference in coordination and movement focusing on ADHD now we recently co-authored ADHD in
Custody a guide to police custody for adhders and that’s in collaboration with the ADHD Alliance the guide is aimed at detainees and police custody and provides basic information about legal rights and ADHD which include reasonable adjustments and appropriate adults the guide has also been commissioned for use as an educational resource by the
National appropriate adult network to raise awareness and understanding of ADHD among adults and um appropriate adults but why ADHD I hear you ask well 25% of people in the criminal justice system are adhders and this is is likely to be an underestimate ADHD medication also reduces criminality in ADHD is and the
Research has shown a 32% reduction in men and a 40% reduction in women finally ADHD cost the criminal justice system 11.7 million pounds every year a figure which would no doubt be lower if individuals were diagnosed and received adequate support before offending where ADHD is not appropriately accommodated
Ated and considered in police custody there’s a risk of evidence being deemed inadmissible and even miscarriages of Justice unsupported adhders who are likely multiple neurod diverent are at risk of being misunderstood and unintentionally harming their case the impulsivity restlessness inent and inattention characteristics of ADHD can manifest as false confessions whereas
Commonly experienced anxiety and low self-esteem can lead to over compliance with adhd’s going along with anything that others say or do in the police custody environment emotional disregulation and impulsivity can make it especially stressful and difficult to climatize and adhders May respond disruptive disruptively adopting unhelpful coping mechanisms in police interviews ADHD are
More likely to have difficulty both practically and emotionally to respond don’t know and to answer questions vaguely with the risk of this being inter misinterpreted as avoidant dishonest and uncooperative however when we look at ADHD is in the criminal justice system we can’t just look at their ADHD in isolation which is where
Intersectionality comes in a concept which was developed by kimberle crenchaw and intersectionality is a lens through which we can view an individual’s social identities and in particular the ways in which those identities overlap and interact and impact one another intersectionality is a crucial part of understanding and supporting
Individuals it enables us to identify the unique barriers the Injustice and the Discrimination that they face based on those identities and where an individual faces Injustice and discrimination on the basis of multiple social identities we term this in Justice squared Injustice cubed Etc as appropriate here are some
Of some examples of the social identities in the form of ice cream Scoops which illustrate how those in those identities interact and intermingle with each other so here we have sex disability class culture race and LGBT qia plus um but what’s the relevance to ADHD adhders in the criminal justice
System are likely to face Injustice and discrimination on the basis of multiple social identities resulting in disparities in ADHD diagnosis support and treatment as well as in policing and the criminal justice system for example women are under and misdiagnosed due to male Centric diagnostic criteria and male Centric
Research and in the CJs unlike men who kill their female Partners women who kill their male Partners mainly do so after suffering abuse at their hands yet only a tiny minority of 7% are acquitted on the basis of self-defense similarly it’s thought that black youths are underdiagnosed as ADHD but they’re more
Likely to be misdiagnosed including with a more severe diagnosis and and in the criminal justice system black ADHD youths are more likely to be incarcerated than their white counterparts and finally ADHD diagnosis has different consequences based based on an individual’s socioeconomic status for children with lower socioeconomic status diagnosis can perpetuate
Disadvantage whereas for children with higher socioeconomic status their parents may be able to Prov provide accommodations resources and other assistance in the criminal justice system those of lower socioeconomic status are over represented throughout thank you excellent thank you so much Daniel and Emma that was absolutely brilliant and of course
Intersectionality is a key word Now we move on so next we have another expert in the field Dr an Marie day she’s a criminology lecturer at kill University and also has many years experien as a practitioner a policy maker within the criminal justice immediately prior to this an completed a research study
Funded by the nutfield foundation the pathways into and out of custody for children in care was something that and we had some research on andry also completed a PhD at the end of 2018 which considered the pathways into offending for children in care in addition to this anur gained several
Years experience teaching a range of criminology and criminal justice modules in a number of different higher education institutions Amry also has many years experience as a practitioner and policy maker in a range of Criminal Justice roles she’s the qualified probation officer and has worked in the community courts and prison am Mar has
Also worked as a youth Justice manager and for the Youth Justice board as a senior policy advisor in the areas of prevent looked after children domestic abuse and antisocial Behavior currently anarie is a board member on the alliance for youth Justice and is an expert adviser to the Howard league for penal
Reform the youth Justice Board chesher youth Justice service and the home office of various youth justice issues one introduction so Dr anarie Day the floor is yours thank you Mark gosh that makes me sound like I’ve been doing lots of stuff can you not tell I’ve got ADHD um always
Bouncing around everywhere but no thank you for that thank you for the introduction so yeah my um my presentation is very much focused on children in the um youth justice system and just some of the um evidence and the and the research that I’ve done um and
Others just to hopefully give you guys some helpful and handy um advice really about how to um represent um neurod Divergent children in the youth justice system there’s my email if anyone wants to get in touch with me um so what we’re going to look at first
Of all is you know what do we mean by neurod Divergence or neurodiversity um I’m going to skip over that a little bit because I think it was covered in the last um presentation really well I don’t want to repeat repeat ourselves um I’m going to look at
What the legal protections are for children and also what has been said with in various treaties and international conventions about um children within the um youth justice system that are neurode Divergent I’m going to just do a little bit of myth busting or myth debunking around um neurod Divergent children because
There’s a lot that we hear um you know as in our professional practice and also amongst the public and I think it’s important that we we unpick some of those um then then I’m going to look at the um over representation of children in the youth justice system and what
Does the evidence say um before moving on to to police station courts and custody um and then I hopefully give you guys some pointers for um good practice or further information for children and what specifically if you’re a solicitor do you need to consider when representing children so quite a lot in
10 minutes hey so here we go just bear with me it’s a good job it’s being recorded so I’m going to just move over this because again I just want to make it clear that we’re using the term neurod divergent or neurodiversity because often people have more than one condition even though they
Have one diagnosis it’s very likely that um somebody may have ADHD or traits of ADHD but also they may be autistic um they may have some elements of Dyslexia um Etc and and just showing the overlaps in so many different areas of these I think is really important and I’ve taken
This slide from um some work that Amanda Kirby has done um just to show the kind of huge overlap and Nuance in this area and I think it’s important that we we we acknowledge that and we recog recognize that in the work that we’re doing as well what are the legal protections well
The obvious one is obviously the equality act and that duty to provide um reasonable adjustments and that kind of public sector equality Duty that we’re all bound by and that includes people that are neurod Divergent that have hidden disability and I’m going to make reference to that later on in the
Presentation because a recent National autistic Society report directly considers how reasonable adjustments can be made um throughout the criminal justice system for children and actually gives some really helpful and handy hints and tips that could be easily made at very little cost to help meet the needs of um the neurod Divergent
Population of children and adults and it’s important that you guys are aware of that as you obviously know article six of the um European convention and also article 40 of the United Nation convention on the rights of the child guarantee this right to a fair trial but
Often the definition of that and what it what it means is not clearly spelled out so you know air trial includes this idea of being able to participate um an effective participation in a criminal trial but the scope of it as is recently been um highlighted um by sixsmith in in
In the forthcoming um book around neuro law um remains unclear and this has led to concerns that particularly for children in the youth court that their rights cannot be and this right to participation cannot be effectively safeguarded but you know just stepping back and thinking about it in layman’s
Terms what does effective participation mean for children surely it must mean that they can follow what’s going on they can understand what’s going on in court that they’re able to express their views and that a judge is propably a properly able to take their views into account so again just thinking about the
Extent to which that happens for all children but in particular for neurod Divergent children who who will struggle with that processing of information um speech language and communication skills and so on and in 2016 when Charlie Taylor was asked by the M government to review the youth justice system as a as
A whole what he said when when looking at the court was that all children are often the passive recipients of Justice they don’t understand the process to which they’ve been subjected in addition the way that they’re currently dealt within the courts does not provide sufficient opportunity to understand the
Causes of their offending and this was a sweeping statement that was made for all children within the youth court so we can only presume that for neurod Divergent children these challenges will be even more acute uncrc has also said more recently that actually when when we’re thinking about children developmental delays or
Neurodevelopmental disorders or disabilities the argument is actually and the challenge to the UK and to other Justice systems is whether these children should be in the child justice system at all or should they be dealt with by a more welfare-based system such as a civil Family Court um that
Considers their behavior and it’s certainly something that the car inquiry um become frustrated with and as a lack of progress um since that in 2014 the sentencing Council guidelines for children as well states that you know children with speech and language difficulties and the effect that this
May have on on the child and the court should take account of that um they should also take account of the extent to which um this impacts on their ability to communicate with the court and understand the sanction imposed and I know from my own experiences working
As a e Justice officer in the court and also a probation officer um I would say and also speaking to children and observing since then that there isn’t a great deal that is done to take account of this at the moment and that often we do have some assessments of speech and
Language needs but in very very few cases do I see that actually filtering through to very meaningful adjustments taking place within um the court or any other legal settings and then finally the very recent case of Z A versus R reaffirmed this by stating that when sentencing a child this means taking
Care to explain the reasons to them in words that they understand so again you know when we think about you know magistrates in the Youth Court typically and the way that they speak to children and how things are explained it’s extremely variable um you know long sentences are used lots of information
It’s not broken down there’s not that checking into make sure that they understand it’s not provided in writing so are children really taking this on board chances are there they’re almost certainly not so that’s just some of the legal protection so before I move on specifically to look at children in the
Youth justice system I just want to look at some of the myths that exist and that some of you may be thinking um around neurode Divergent children or you may have heard third one of them that we often hear is it’s a fashionable excuse for poor Behavior it’s just the latest
Label for naughty children um and as I’ve put there you know this is very much an assumption um it flies in the face of physiological evidence in terms of the brain and how and how it’s wired differently um you know neurode Divergent children as it says there tend to display disruptive or challenging
Behavior when they’re triggered in some way so it’s something in the environment that they’re in that is overstimulating stressing them out or overwhelming them so rather than focusing on the child and saying oh this is a fashion fashionable excuse for them being naughty maybe what
We need to do is step back and look at what is going on in that environment and their interactions that could be triggering challenging behaviors it just it just makes us look at how a how an environment can disable a child rather than putting all the blame and
Responsibility on them um again there’s often this idea and I think there’s been a question already in the Q&A about this but the same set of adjustments or the same set of training can helpful for all neurode Divergent children this idea of a one size fits all hopefully from that
Slide I showed you a few a few back from Amanda Kirby you’ll see that that is not the case every NE neurode Divergent person has their own story we all struggle with different things and ex sell at others and we all have traits that can seem contradictory so you know
We may struggle with um be we might be be able to hyperfocus but then at times we can also struggle to get started and concentrate on some tasks so it’s not always consistent either um I’ve always heard this one we’re all a little bit artistic or we’re all on the Spectrum
Somewhere um that is not the case artism is a neurodiversity it the brain is wired in a different way you’re either Autistic or you’re not you can’t be a little bit autistic okay um and another one I’ve heard more recently as well is there’s an Autism epidemic um the evidence for
This um seemingly rapid change in statistics isn’t so much that there’s an epidemic but it’s that the um the understanding of it the assessment of it um Etc is becoming much much better and actually the the figures at the moment are actually becoming more and more accurate and our understanding is
Evolving which is a good thing and that is probably part of the reason why we’ve got this um wonderful series of seminars and that are being put on by um Garden Court Chambers at the moment there’s just some of the Miss there’s many more but I just wanted to pick out the main
Ones from my perspective think about children in the youth justice system why is this why is this an issue well anecdote and also the The Limited evidence tells us that children are significantly over represented and neurode Divergent children are significantly over represented in the youth justice system
At least one in three people may be neurode Divergent but this rate is even higher for children with ADHD and speech and language difficulties and actually up to 90% of children in custody met the diagnostic criteria for a communication disorder 90% and this was seven years ago so actually when we’re looking at
Children in the youth justice system is this a minority or is this the majority of children in the system do we need to be really looking at this for all children that we’re working with um children and young people as you are probably aware in the E justice system
Also have significantly higher rates of mental ill health cognitive and neuro disabilities and complex support needs than the general population so again that intersectionality is really important um and the associated impairments um such as you know ASD ADHD speech Lang language traumatic brain injury and also fetal alcohol Spectrum
Disorder are also the significant over representations and some of the references there to support that so we can conclude that this group of children or people are significantly over represented this is why we need to think about what can we do so again some of this has already
Been touched on when on the previous presentation looking specifically at ADHD but thinking about children research has shown that the police generally are not equipped to meet the complex needs of children the custody Suite processes are deeply unsettling for all neurode Divergent people the lights the noise the banging the weight
And the unsettling nature of it um Can can produce again thinking about how the environment can trigger and produce challenging behaviors this is then misinterpreted by the police as non-compliant which means you’re less likely to then be offered um an official or unofficial um informal diversion
You’re less likely to be bailed and more likely to be criminalized and this was found by the criminal joint Justice inspection in 2021 other issues at the police station included the failure to provide an appropriate adult um are that neurode Divergent adult adults and children then didn’t have someone helping them with
Understanding the police processes are advocating on their behalf okay this is just some of the um evidence that’s emerging in this area in the courts well there’s evidence to show that all children struggle to understand the court processes which is no great surprise and the carile inquiry
Which I’ve already mentioned 9 years old now how much progress has been made since then um not a great deal is is my own P my own perspective there’s been anecdotal um improvements but generally the youth court hasn’t really shifted in its makeup or how it’s run since its
Inception in um in in the early 2000s so they noted that children’s mental ill health and neurodevelopmental disability further hinders the understanding and there’s no way to identify these and we still struggle with this children are also more likely to be refused bail because they cannot understand the conditions or they have a
Lack of support to help them comply with the conditions or they’re over stringent often setting children up to fail children have often been found to agree to things as well so yes I’ll agree to this bail package I just want to get out of here I’ll plead guilty because I just
Want this to be over with without that understanding of the the consequences of what this will mean and for NE diverse adults at court and they found that they were more likely to be remanded in custody before trial over a fifth didn’t understand what was going on or why they
Were there and that neurodiversity is frequently not considered in sentencing decisions and then finally we get to custody um and for children I mean the the custodial establishment for children at the moment and and the secure estate is is pretty shocking you you may or may
Not be aware but the um secure training centers that exist of most of them have been um closed down recently as a result of concerns around children being locked up for too long in their cells up to 20 3 hours a day on their own um accusations of abuse and neglect and
Then the young Defenders institutions are also coming under um extreme scrutiny at the moment but custody can be um harmful to Children’s Mental Health and what and what I’ve found in some research I’ve done and and with others is that you know high levels of restraint segregation isolation can
Trigger mental ill health self harming and Suicidal Thoughts um and this is even more acute for children um who are neurod I interviewed 48 children in custody um around 20 of them were neurod Divergent a good chunk of them had ADHD um the behavior management regime is
Based on the adult model which is that you know you have to comply and you have to follow the rules children with ADHD struggled with that and we’re being disproportionately placed on basic which is the um regime that you go on if you’re not behaving and this would lead
To children with ADHD being placed in an 8 by8 cell for up to 23 hours a day um which would impact on their mental health lead to frustration more negative behaviors and they would stay stuck in this vicious cycle there also been evidence and research to show that there’s a lack of
Knowledge from Wing prison staff about how to interact with children who’ve got mental ill health or neuro disability or special educational needs and there’s a distinct lack of training there um and there are assessments done when somebody goes into custody but they are not filtered through to impact on how
Somebody’s interacted within that environment what can we do about it well there’s some there’s some good resources out there and I just want to highlight some of these and then give some specific advice um for solicitors and advocates in the court and police settings firstly um intermediaries are available they’re
Not used as much in the Youth Court as potentially they should be and but there’s some really good advice about intermediaries for child defendants on the youth Justice Legal Center website and there’s and these slides are going to be shared and there’s links to all of these resources on this slide well this
Gives advice on how to determine if a child needs one and how to apply there’s also advice about effective participation and fitness to plead again on these Justice Legal Center website and the these guides are really easy to read They’re about you know 10 pages they dead dead straightforward they
Don’t take a lot of time but they just give some really good practical advice um I’m not sure if you guys are aware of The Advocates Gateway but this gives some good practice guidance when preparing for trial um and this gives advice for children and adults but
Toolkits five six seven and eight are particularly useful for children and again just about you know how to apply for intermediaries you know different stages you need to go through and so on um I’ve already mentioned what the national autistic Society report they recently did a review Into the
Youth justice system for autistic teenagers um and they found that again the system is is wholly unsuitable and it’s quite traumatic and harmful for children but towards the end of the report they run through um for police custody um courts all the different stages um including Community Supervision a range of reasonable
Adjustments that could be made to help support children that obviously um are protected under the equality act and again I’d urge you to take a look at that report um and then finally there was some research done a few years ago with Nottingham University and Nottingham Shire police um where they
Looked at a range of resources that could be made for um autistic children and adults um in the police custody tweet um around communication the environment and so on um and and there’s a link there on the slide that hopefully you’ll find useful so just to finish off not sure
How I’m doing for time hopefully I’m doing okay and but what do you need to consider um as an advocate a solicitor I think firstly the key is communication um if you’ve got somebody who’s neurod Divergent and there isn’t a one-sized fits all but this is just some
General advice the things you need to think about are providing questions in advance in writing um in a similar way that is now being done for for job interviews um the use of social stories so you know like almost comic strips or YouTube videos to show somebody you know
What will happen when they go into court how it will work the kind of questions that they’ll be asked and there’s lots of resources out there that you can find and again when you’re communicating think about chunking information and what I mean by that is one question one
Statement at a time then allow somebody to respond to that to reflect that they understand what you’ve said and then move on because often we can say quite complex long sentences without realizing and somebody’s not taking that information in and that visual guide as well can help with that check double and triple
Check that somebody understands what you’re saying often someone will just say yes just for it to be over with or they’ll say I don’t know as was alluded to in the EMP police interviews for children with ADHD think about the sensory environment as well um you know is a child
Overloaded um you know is the lots of Lights noise do they feel uncomfortable because if that the if that’s the case then um the thinking part of their brain will shut down the amydala will kick in and they will not be able to respond in
The way that you want them to so you need to think about quiet calm non-triggering environments and again there’s further advice out there if the child’s got parents ask the parents you know often they’re ignored as a source of of expertise for the child ask them ask the child themselves what works for
Them they know what they feel comfortable with you know if they’ve got an education Health and Care plan or scn support plan in school or in college get a hold of it because that will contain very very detailed advice on how to meet that Young Person’s communication and
Wider needs and it may be quite useful for for outlining how similar adjustments could be made in the criminal justice environment you know and then don’t forget the ground rules hearings you know they’re required in all trials where intermediaries used and they’re good practice in all young
Witness cases in other cases where a witness or defendant has communication needs and again there’s some guidance there in the youth Justice Legal Center so hopefully that given you just a little bit of a Whistle Stop tour of just some of the things you may need to think about when thinking about children
And neurod Divergent children in the youth justice system um but if anyone does have any questions I know we’ll have time at the end but I hope that you guys have found that useful thank you very much ah excellent thank you so much Dr andry that was absolutely um
Wonderful again it was a wealth of information that was um that you have conscious of time so we move on swiftly to Professor Claire Ali she’s a professor of forensic psychology at the University of southford in England and is an affiliate member of dillberg neuros Psychiatry Center at gothenberg
University in Sweden Claire is an honorary research fellow in the College of medical and veterinari and Life Sciences Affiliated to The Institute of Health and well-being at the University of Glasgow clear acts as an expert witness in criminal cases involving defendants with autism spectrum disorder and contributes to the evidence base
Used in courts on psychology and level legal issues through her published work she’s author of the book the psychology of extreme violence a case study approached to serial homicide mass shooting school shooting and Loan act terrorism and this is published by routage in 2020 she’s Al also an author
Of the book autism spectrum disorder in the criminal justice system a guide to understanding suspects defendants and offenders with autism also published by Rouch in 2022 without further Ado I hand you over to Professor CLA Ali thanks Mark it’s a real pleasure to be here amongst such
Great colleagues and the topic I want to really focus in on today is how a person with autism might be misperceived or misjudged in the courtroom so how atic defendant might be perceived as by jors and judges in a NE very negative way so we’ve had a lot of really good
Discussions so far and I think a lot of what we’ve heard already from our colleagues about ADHD is also applicable here to autism so there are a number of features of SD that might make a defendant appear really evasive remorseless lacking an empathy and guilty I’ve lost count how many times
I’ve heard as an expert witness that a person with autism was like a psychopath they were really cold they didn’t care and I think this is really important to really unpick is is it the autism it’s causing them to present in that way so there’s a number of features that we’ll
All be very commonly familiar with that can lead someone with autism to be misperceived this is difficult to Mak an eye contact making it or maintaining it and that again can make a person with autism appear really Shifty and guilty they can’t look their lged victim in the
Eye for instance eolia or repetitive vocalizations this is where a person with autism May at the you know repeat what they’ve just heard um you know and and and that can be like seemingly like an agreement to what’s just been said when they actually don’t or it can just
Be perceived as being very aggravating behavior is with time to respond again another very commonly know known thing this is where a person with often sometimes needs more time to kind of process the question and to generate their response and again in a place B interview interview context or courtroom
Context this can be misperceived as the person trying to make up and fabricate a story in their head which is why they’re taking long time longer time to respond there’s also the misinterpretation of repetive interests or behaviors so if they’re sitting in the courtroom you know walking back and
Forth reading something doing engaging in something this again can be misperceived as being not caring about the process and rather than actually they’re needing to do that to maybe cam or suo themselves down or because it is part of their restrictive interest and but they’re they’re still engaged in the
Process that’s some of the kind of more commonly known ones I’m going to focus on some of the maybe lesser well-known features of autism can make them appear really negative in the core or be negatively misperceived so the ones listed here in bold are going to go
Through each one and speaking very fast I’m conscious of how much I’ve got to see in a short space of time so for me one of the really critical ones is issues that have been found in many people with Autism and there been some great work by Katy Mars and colleagues
Who have found that people with Autism often need longer time to remember things they often need to have much more probing they often rely much more on familiarity in order to guide their memory and recollection of those events and they also um can have difficulty with um remembering certain aspects of memory
So there’s people will remember the capital of England is London however only a small number of people actually remember when they actually learned that information so there’s actually two different types of memory one is the knowledge based information the names of cities you know and that’s called
Semantic memory and the other type of memory is memory for specific episodes or events which is called episodic memory so what’s been really interestingly found by researchers like KY Mars and colleag is that people with a often tend to have a spared or intact memory for semantic things you know they general knowledge
Based information whereas they tend to be often more impaired in their specific um episodic memory so remembering specific episodes of things or events they take tend to take longer to retrieve these they need more prompting with in order to do so and sometimes they can’t remember them at all so this
Is really important if you could think about uh courtroom context or police investigat into context when that police officer or ask you know tell me about what happened that day they may struggle to remember the events what happened in what order but they’ll remember very specific knowledge based things like
What they wore or certain things that were said or what they ate and again police can find this really weird it’s like how can you remember that level of detail for such innocuous you know semantic based information but can’t remember when was he did it or what was the episode what was the
Event so they often people with a need much more time with which to remember things and again this can be really appear very negative another thing that’s related to this is people LW have been found to have overall and more impaired ability to remember the sequential order of things so remember
The temporal sequence of narrative of things they’ve experienced so again how negative this can be perceived if they’re asked right take us through everything that happened that day start with breakfast and they make through that that sequence of events that occurred that day or over the weeks or months
Might say things really out of order but really believe that that’s the order they took place in and each time they’re asked they may pre present that information in a completely different sequence again this can be really negatively perceived in the criminal justice context it is relating to their
Difficult ulty with actually remembering the sequence of events rather than deliberately trying to be evasive and that’s indicative of that that the lies effectively people doesn’t often can also find it very challenging to remember how long specific events were so this is like affects with time perception so if you if they’re asked
How long do you think you were in the park before you then went into the pub or how long do you think you that that was you spoke to that person they may often really struggle with this type of questioning and again this can really look very
Negative another thing I think is really important to look at is how a person with autism may have no emotional expression on their face so as I mentioned earlier this can make the person seem like a psychopath you know when the LGE victims talking about what they’ve allegedly done and they’re like
Standing there like not having any emotional expression at all this can be really perceived as being really lacking remorse and this can obviously have major implications to their sentencing whatever however it’s really important to recognize that people with Autism they often sometimes can have as lack of emotional effect but it doesn’t reflect
What they feel inside so inside they may be feeling really stressed really anxious really upset about what’s being said and what’s what’s happening but not actually express it at all to really confuse matters you can also get people with Autism that are the absolute polar opposite they actually
Are very expressive in fact heighten so to the point of being almost really dramatic so it’s I think it’s really important to recognize just how autism can be present in so many different varied ways so if you’re used to someone with autism who’s very expressive and and
Overly so in some respects almost overly dramatic there’s also the other way where they can be the complete opposite but again it’s not necessarily reflecting what they’re feeling inside um so emotional expressions or behaviors they may exhibit emotional expressions or behaviors that are totally inappropriate to that context and they
May have no appreciation about how it would be perceived by others like actually better not do that better try not to do that because how others might think that has been very negative and it’s really important as an example would be if you’re in a situation it’s really you’re really really stressed
Like a uh say for instance um you’re a funeral and sometimes you’re so distressed that you almost have the Sensation that you want to laugh but it’s the last thing you want to do I’d like to argue here that this is what some people also may feel that they
Actually it’s totally in congruent to the situation but it’s like almost like a defense mechanism they don’t they have they’re confused the situation don’t know what else to do it’s overwhelming so they they sometimes engage in these unusual inappropriate behaviors and and again how negatively this could be
Misperceived in a courtroom context they may burst out laughing they may sit and grin but it may be serving a completely different function for that person with autism another thing is unusual ways of speaking so some people also may speak very monotonously you know with no intonation no variation in their in
Their tone and again this can make them seem really cold and Psychopathic in manner they may also all of a sudden speak out very loudly and all of a sudden Shout with for no reason again this could be misperceived as being aggressive or angry they can also often um you know seem
Really you know aggressive or odd when they all of a sudden speak really loud and all of a sudden speak really quietly so they might and you know vary between the two and again this can make them seem like they’re trying to hide something or you know they’re they’re being
Deliberately you know challenging in the courtroom another thing is the issue with compliance and this is something some of our other colleagues mentioned earlier in this session today and it’s also the case of people with Autism we do tend to see they’re much more heightened in their compliance aspect but not more
Suggested but they are more compliant more eager to please more likely to try and do things that will avoid confrontation so this is like the thing I mentioned earlier on with people with ADHD that they may say things in order to avoid that situation and this can even be false confessions or saying
Things that can be self-incriminating just to get out that situation as soon as possible there’s also issues with mistrust and paranoia so it makes sense if you have someone with autism who has maybe had a lot of difficulties and challenging social interactions where you know they thought
That this person was a friend to them but actually they learned they were just abusing them and exploiting them and so they may have interactions well where they interact with someone they’ what they’ve said something wrong and it’s led to an altercation this can over time lead to people with Autism being very
Mistrustful or very we of people other people to the point bordering on paranoia has to make them very mistrusting very anxious in different social situations including the courtroom and when you think about it some people doesn’t haveit have really difficult challenging abilities to understand what other people are
Thinking or recognize and pick up an emotional facial expressions particular negative ones why this could also lead them to be very mistrusting and almost paranoid of other people and what their intentions are the last one is social communication and interaction so they may all of a sudden interrupt
The speaker like say they’ve been questioned and cross-examined in court they may all of a sudden butt in with it recognizing that’s actually not the end of a sentence or there may be very one-sided in their communication I think it’s really important to highlight here that this is
Not always the case some people with Autism can actually mask or camouflage their social interaction difficulties or challenges and I really recommend a questionnaire called the camouflaging autistic traits questionnaire and this is a really great measure of self-report where you can really see whether the person’s engaging in any of
These camouflaging behaviors that includes imitation masking assimilation behaviors and some people with a are really really good at this to the point where they appear to recognize and understand everything that’s going on but actually there may only be getting the gist in that particular negative challenging situation so I really recommend that too
People with Autism can also have difficulties with metaphors irony nonliteral language as well but again the camouflaging may make if they engage in that they may hide that that challenge that they’re facing so I’ve really gone through very fast here um I don’t know they didn’t set the
Timer but I welcome questions at the end as well so hopefully this just giv me some insight here into some of the challenges that some people L some face in the courtroom I I probably have spoken too fast there but I I re I can send resources and
Slides and a link to the camouflaging autistic tra questionnaire because I think it’s so valuable it’s been found to be a valid and riable measure as well now we’re moving on to our next expert Dr Max loin who’s a principal lecturer in the in law at Bournemouth University
A non-practicing bar with an expertise in legal communication and equality and diversity disability law Max is a a social legal academic with a passion for exploring comparative criminal justice his research teaching interests areas in include criminal law comparative law sentencing law evidence law public law legal practice skills jurist Prudence as
Part of his research and teaching efforts he’s also traveled widely in Europe to the Netherlands Denmark Germany and England to both expand his knowledge of Criminal Justice issues and to share his ideas with his fellow academics at various conferences so without further Ado Dr Max Lin please um
The floor is yours um so thank you for that introduction yes I I um I I teach at University um and do various criminal justice talks on neurod diversity um frankly to anyone who will listen um but I have done talks or helped review for the CPS on the mental health policy help
Them magistrates Association um with a talk on your diversity in the courtroom um um and assisted Parliament too or get on to Parliament actually towards the end um you’ll also see on the the introductory slide that I’m I do charity work so I I work for charity action for
Neurodiversity which looks to help and assist autistic clients with um counseling um and um and work is very important to me as well beyond that my research using how new Justice uh mainly sentencing and currently I’ve now diverged into equality law and employability with autism employability um and the global picture too which
That’s um interesting what I will cover with you today is these three main points that on scen on the first one on disability awareness um this tends to manifest itself around challenging mental health uh stigma um and the important first hurdle frankly of actually disclosing a
Disability um and some people do I do uh I have autism anxiety and depression but many don’t um and as their hidden disabilities you will never know unless they disclosed or you find a report somewhere for your client beyond that secondly I’ll talk about uh reonal adjustments the Accord law regime which
Puts that centr stage um um the issue though is the application of the reasonal adjustments and the understanding and the listening to your client to be able to do that um and and that is not not easy to do um and you may note that I’ve put criminal and
Civil Justice System because disability and neurodiversity does not respect systems or services or boundaries at all it is inherent to the person that you’re dealing with thirdly I’ll talk about sentencing and best practice and I’ll reflect a little bit on the research that I’ve done um into fencing
Communications which can be very tricky um and challenging when you are dealing with neurodiverse clients or when judges have neurodiverse defendants in their court but just to start the overall Duty inequality law is very very broad uh very very broad indeed um but under Section 1.1 of the equality act 2010 as
Public authorities of which legal services and courtrooms are part um there is this Duty a very strong Duty um to eliminate discrimination harassment and victimization and Advance equality of opportunity and Foster good relation so it’s a very very broad Duty um and a very powerful Duty um and you’ll see
Actually in the the slide here how how wi that is um just on the equality act itself the uh protective characteristics we’re only talking about one aspect of it which is the uh disability side but there are many others and of course someone will have a disability and they
Will have a gender uh they will have uh sexual orientation all the rest will will go with it which can obviously add to the complication what can further add to the complication um is sorry bit further is uh how you view neurodiversity as a whole so this slide really covers a lot
Of um aspects of neurodiversity here you can see um however as has been alluded to with other speakers um we have inter lapping inter intera um conditions that people will have if you have autism you may well have anxiety depression as part of your sensory sensitivities and just
Dealing with the world um of which I I deal with that every day um and these these are not easy condition conditions to understand and I think it’s important for people to recognize that um to try and boost their understanding um via Charities and Via various other
Mechanisms um but it’s it’s a challenge to do and then just from a specific uh neurodiverse conditions perspective you can see with autism itself all of the different conditions of this slide covers quite quite a few conditions interestingly enough they are not all neurodiverse some of them are physical
Impairments as well um in this list of um conditions so examp called development um Coordination Disorder or DCd um on the on the list that one um is a a physical impairment so they they all vary in terms of the impact and they Interlink together now when they get to the
Courtroom they’ve gone through the police station um they’ve gone through the CPS challenging situation and then they’re going to go to the courtroom um and what’s been found there well uh slly cross setel a Cambridge study uh last year um you can see the quote here it says they found there were significant
Problems uh with the um implementation of reasonal adjustments um in the courtroom and this was an analysis of 93 places that they looked at um and you can just see in the picture below uh without reasonable adjustments that’s what the ladder looks like with no rungs and with reasonal adjustments that’s it
Looks like if you if you do them so they are tremendously important and I’m finding this actually in my employability research that um it is exactly the same picture whether it’s in the employment picture whether it’s in the criminal justice system Civil Justice System anything you like the
Adjustments are just so important what did slab across at actually find well they said only a quarter 25% of autistic people they look at were given reasonable adjustments um with 38% not given um any even though the lawyers stated this would have been beneficial um to them
And that they’re entitled to it under equality law um of the autistic people who went to trial more than one in5 or 22% were not given any reasonable adjustments even though their lawyers stated this would have been helpful um although on a positive note they later
On found in the study um in the cases that where their client was found to have committed a crime 60% of the judges saw the defendants autism as a mitigating Factor um and in these cases the majority of autistic people were given suspended or reduced sentences as a result and so quite significant
Impacts there but beyond the statistics there’s a much more complexity going on on an individual basis um between um the lawyer and cents um the push back on reasonal adustment um is legitimate and these four areas in green are what they are um and it’s got to be cost effective um and
It’s got to be practical to actually um implement the change from the employment perspective they can push back on it and from the service perspective as well um they can they can make these um these arguments and it is important to see the other side of the coin that we want to
Make adjustments I’m sure all of us would agree with that but there is a resourcing issue um uh that that is uh acting here and we need to be aware of that and try our best to to be coste effective in everything um we do so then we get to the actual courtroom
And misperception or misjudgments that you would you could potentially get now this is a list that cla’s spoken before me um from from cla’s book um what I’d like to add to that is that the adversarial system and I said this to my students um is incredibly stressful and confusing
Well don’t take my word for it my students report this to me every time they go to a courtroom and they you know F students and law students that’s the impression that they get um I’ve seen it many many times when I’ve gone to call um other represent usually representing
Myself um and i’ one example I give to students is that I saw a bunch of Builders Bly Builders I call them and I’ve never seen them look so scared in all their life and I said what’s going to happen oh we’re going to be uh going
Through cross- examination now um and we are scared so it it is incredibly scary experience now to the list that somebody’s got a neurodiverse condition it doesn’t take a genius to work out that um not only are they going to um manifest different behaviors as this
Slide shows but the stress of the whole situation is um is also going to manifest um that’s if that you know beyond their understanding um beyond that in the courtroom there’s a lot of body language going on um which impacts how judges uh um um perceive matters in
The court as well as the jury um and so guidance and understanding for judges and juries is very very important how would body language manifest itself eye contact voice tone and Pace the emotions and understanding which CLA was so skillfully talked about earlier but then we get to the
Practicals really what can we what can we actually do um well I actually um grid that I’m going to show you this was actually adapted from um my own in inex ability um to um a major publisher and um and what I did is I actually produced this for actually people trying to
Publish their work because uh if you have neurod condition it affects as I said everything you do um and this I adapted for the qut we can see here for dyslexia uh for example the difficulties they would have the challenges but also the solutions and this is very very important that
We understand the condition listen to the person then we provide solutions that will assist them and I’ve put here some solutions for example dyslexia to ensure that the speaking task or requirements with the courtroom are clearly and logically structured and are explained succinctly to the person and
Offer onetoone support some of you will be saying at this point one to one support well if that’s practical if we can fund this but we should be doing it because we want to include and we know the equality law um specifies that we should do this and back the same sort of
Thing I’ve put some examples here of what that what that means and what you can do in the courtroom frankly to help um the person um and with disax for example the planning an organization in their life can be affected and that can be assisted we can see in the first
Point there on the slide with clear guidance on what is to be expected um not only inside the courtroom but before they go into the courtroom itself so they can be prepared so there’s lots and lots of PR practical things as lawyers that we can do and as judges who are in
Charge of the courtroom that we can do to make that experience just so much uh uh better much better uh for the client for the defendant that we’re seeing moving on to other other conditions within the uh courtroom we can see for example autism at the top
There in blue um and we can see the main ways that can manifest I mean that’s no by no means an exhaustive list so I’ve simplified it um but sometimes simplification can really help people’s understandings and it says just in the first point use use of plain language and structured logically and sensitive
Sensitively um now in the use of plain language this is very much inin in sentencing um but what might might be plain language to um you as an individual may may well not be uh a plain language to the person involved and um certainly in teaching I
Experience this every day um how how simple and plain my language has to be frankly so that uh people understand um and the use of visuals as well can really really help with that and ADHD at the bottom here the impact of it in terms of challenges and then the
Solutions which is so important of of what you can actually do and um the second point there is about drip feeding and simplifying the tasks to complete bit by bit um for the cour user now would like to say that I produced this guide simply by scanning the internet
Finding the charity best practice and creating this grid um it didn’t take me too long to do um and it’s something that that you can do in your own you want to just to to educate yourselves frankly about each condition because they are complicated and um for the clients that you
Have moving on to the sentencing side of things uh well section 52 of the sensing Act is very clear it’s got to there’s a duty to explain sentencing in ordinary language um to your client but what does that actually um mean um and that can be can be complicated I suppose depending
On on who you have in the courtroom um and as we’ve discussed um you can say to say to the client or Defender do you understand um they might say yes um and they actually don’t by the way this happens with my students a lot of the
Time um with particular the NE diverse students that I know um they will say that they understand but they they don’t and then they might I have to sort of probe them almost to get that understanding um you know to the same level that that I have and repetition
Actually can be very very important in the processes you apply um with your clients and in the courtroom the judges themselves are very much aware of Duty to make re adjustments of course they are um it’s within the equal treatment and bench book which they take very very
Seriously um so so judges are are very open and and and I want to make adjustments as much adjustments as possible to assist um all courtroom users of which they are in control of that courtroom um and um and have obviously the quality or duties too Beyond this we then get to the
Sentencing explanations that they give uh within the court now these are are complex globally significant um and they have a unique disabled cour of user impact depending on what disability the the court uh user has so um in my research I’ve covered the adult sphere which tends to be the negative side of
Sentencing remarks and what I call adult denunciation or public condemnation and blame um and I’ve I’ve put in the Publications for that um which actually was a comparative study with Denmark um of which Denmark was a lot um uh nicer in in simple words uh than in in uh the UK on adult
Denunciation um and then on the youth perspective or Youth System side um how you communicate I looked at it from the judicial perspective in my research um and and of part of that research what really stood out actually beyond the language simplification for young defendants um was the the Moral Moral
Re-education element of which could be completely lost um on um a neurodiverse uh um Court user so um retraining on this and knowing what that means and explaining that in a way that um um and Ne divers client or defendant will understand is just so so important um it
Was certainly deemed important when I did the research um for the judges um when they sentence to morally reeducate some of the young young young um offenders or young defendants but um again if it’s it’s meaningless unless the um defendant themselves their parents their approximate relationships to youth fending service Etc understand
And can then continue that moral re-education as I found in my research beyond the courtroom so beyond that we then come towards the end of my slides um we we talked I did actually a search on equality I was interested to find out what the equality picture was if you
Sort of searched it on I put the link in there for the sentencing Council um various um offense specific guidelines came up you can see the list there um um but that was about it um and um and so I think there is work that can be done the
Sensing council’s own equality and diversity report and response in 2023 um stipulated the bullet points below um they talked about aggravating and mitigating factors and we’ve said that um neurodiverse disability often is mitigating but it can sometimes in case law also aggravate uh depending on the
Context of of each case um and then beyond that the importance of pre-sentence reports was picked how and then the collection of data frankly um for um uh judges directions and then sentencing explanations so I recently did a a report or contributed to a report for Parliament on public
Understanding of senty um of which it was found to be that the public don’t understand sentencing very well at all um and I just added in it um in in my inputs that um have you thought about the equality and diversity impact as well because I suspect um it’s a lot
Worse there um so there’s work to be done um to um improve things now I’ll tell you a funny story when I um not so funny but some of you might find it surprising but what in the process of actually engaging with Parliament um I asked for reasonal adjustments and I
Didn’t get any or they weren’t implemented very well uh which then led to a complaint and the reason I’m telling you this is to say that even our own Parliament can make mistakes um on implementing reason adjustments and if our own Parliament who implemented the very statute the
Equality act 2010 can make mistakes of course we can all do so the important thing is is to learn from those mistakes and improve the S the system which is what I did in my feedback and and they accepted that which is a good good story
To end on um that they needed to actually improve their inclusivity um and the use of adjustments to include me within um their select committee work so that brings me to the end of my slides now I don’t know I I supposed to start
My time up but I didn’t but I hope I’m to time for everybody thank you so much Dr Max that was Now we move on to our final guest maybe one of our most esteemed guests of the evening and panelist um Garden Court’s very own Amanda Western KC Amanda is a leading
Public um and administrative law silk she co- for judicial review a practical guide available on Lexus Nexus and is a member of the a panel of preferred Council who act for the equality and Human Rights Commission Mander has acted in hundreds of Asylum and human rights appeals including high-profile and
Sensitive cases and those involving extradition cas include gender and sexuality cases complex political and religious cases and appeals for children and vulnerable adults Amanda also acts in the case cases in the Family Division administrative court and the appeal courts where the rights of children the young people are in play her particular
Areas of crossover expertise involve safeguarding local Authority corporate parenting duties education and disability deprivation of Liberty immigrant ation and citizenship matters and sensitive cross-cultural areas including FGM radicalization trafficking and false marriage she operates a trauma informed practice using her extensive in mental capacity should say extensive experience in mental um capacity law and
Safeguarding practice to inform her approach to the representation of vulnerable adults and their litigation friends in whole wide range of cases um another great introduction so Amanda it is over to you I’m I’m really grateful to all the um participants so far because I I’ve I’ve learned a lot and um
I’ve also seen where um there’s some overlap with um uh the the what’s in this um uh PowerPoint which is a very long PowerPoint it’s actually um um a a set of training that I deliver with my colleague in the family team Amanda Muse um on what the current practice is in
The family courts um when faced with individuals who have barriers to effective participation and that’s really the focus of um what I want to to sort of sweep up a bit because I’m not going to go over ground that’s already been gone over by um by the panel um uh
I think it fair to say that the family um jurisdiction is sort of in the Vanguard of of finding um solutions to barriers to effective participation and is quite Forward Thinking um in the approaches which are taken by um in the family courts and so I’m going to be
Suggesting that there is some read across into um other jurisdictions um and we can all learn from good practice um in uh in in in any aspect of um the justice system um again my my focus is very much not on um diagnosis um but but definitely on barriers to effective participation in
Any proceedings um and I’m I’m actually going to go a step before that and say that there is um there is already good practice and judicial recognition that um evidentially to get the best evidence to make sure that evidence isn’t skewed or distorted by
The effect on um uh access to um to the just to the justice system access to effective participation to to ensure that the there’s the the evidential basis isn’t skewed and that um the best evidence is obtained and to protect the Integrity of that evidence then consideration has to be given to
Ensuring that reports which are before the court also and I’m thinking not just about about courts relating to competence but in the in the family um uh jurisdiction we’re often looking at um uh parenting skills parenting abilities um and so in in circumstances where the court is looking at a person’s
Ability to um a perform a parenting role or indeed any role or any function it’s important that those who are assessing those abilities for court purposes also ensure that their means of gathering that evidence um takes account of um the impact of neurodiversity um on uh on providing the
Right information and communicating the right information so that the court has the information that it needs um page um five please um uh please Amy so um just a quick look at the legislation um so obviously um under the equality act 2010 judicial functions are exempt from prohibition on discrimination but it’s
Important to note that um that doesn’t um uh that only goes to the core um judicial decision making not the um uh ancillary functions around the arrangements made by the court um the arrangements made by hmcts um and then um of course when we’re dealing with the sort of the the
Legislative framework we remember that the um uh non-discrimination provisions of the Human Rights Act um uh aren’t bounded by the same sorts of um legislative carve outs as the equality Act is and therefore that even if you can’t run the equality act typ point or use the equality act as a lever and
That’s not to say that you wouldn’t be able to do so under the Human Rights Act and obviously in the context of family we’re very much dealing with the overlap article 8 procedural safeguards article 6 and um article 14 disc discriminatory failure so um just to to to check the
Equal treatment bench Mar again um it’s important to note that that that that document which is available online it’s a huge great big thing but it’s in intensely useful because it does um uh contain the sort of upto-date approach of um those who train the Judiciary um
And I think it’s fair to say that not all the Judiciary all the time are terribly up to speed with what’s in it um um and it’s important to recall that there’s been some quite Forward Thinking already in the senior levels of the Judiciary about the impact of failing to
Make adjustments to the process on the quality and integrity of the evidence um and it’s important I think to to remind to remember what um uh the former Lord chief justice said which is that um the truth is the objective so getting to the heart of the evidence making sure
Individuals are able to give their best evence and the court is able to get to the truth of the case is the key underlying um uh prime mover um uh um in in ensuring that um the appropriate adjust adjustments are made so um and again we have some some useful uh dictor
There from the um from the M case um you know which is sort of 11 years U old now um and does give an indication of the extent to which the family courts are already alive to the problem of um caused by um uh barriers to uh accessing
The process so just a few more um interesting little bits of dicta so um in the context of the family um uh jurisdiction the family proceeding rules and the accompanying practice directions always already make quite detailed um Arrangements um in addition to the overriding objective obviously um
But the practice Direction three AA in the um uh in the family proceedings rules um makes it quite clear that the court has a general duty to identify any party or witness who’s a vulnerable person um uh and to make specific consider specific Arrangements like screens like intermediaries um in
Practice that normally means that there will be um a report followed by a community court report followed by um the parties usually agreeing what um measures might be necessary the the other panelists have already gone over those in detail I don’t intend to repeat them but it’s important to note here
That um in contrast to some other jurisdictions um including the immigration courts and tribunals um the family court is all over the idea that it’s for the court to ensure that it is it has properly considered what adjustment should be um uh made in order to ensure that the court can guarantee
And protect the Integrity of the evidence um and it points it points out here that it’s important that those issues are dealt are identified long before um any proceedings are um are started um in the in the context of public law proceedings in in um care proceedings obviously then it’s for the
Local authorities to ensure that when they’re um making assessments and when they are um considering taking um uh legal cases against um parents um in respect of the care of the children that they themselves have taken appropriate steps to ensure that their decision- making and that gets the that gets the
Parents into court in the first place um is properly informed by uh adjustments to the process of gathering information about the children that they Weare and the parents ability to parent them um could we go to page 24 please because I’m I’m I’m conscious that there’s some parts that I want to
Highlight um and I don’t have time to go through absolutely everything but this is the um DNE case and this is really the court highlighting um the point I made previously about the Integrity of the underlying evidence that the courts consider in the underlying reports um
And it’s here this was an appeal which was allowed because the court had identified that it was an error of law that there had been an absence of suitable targeted and attuned assessment having a regard to the mother’s ASD meant that the court could not attach sufficient weight to the community-
Based assessment or indeed to the social workers parenting assessment so it’s clear here that the the process as I say of gathering evidence which is then put before the court must also be properly informed by the sorts of adjustments that you’ve been hearing from the other panelists just looking at um the issue
Of um communication needs um it’s important um obviously we’ve been we’ve been looking at that with with the um other um panel list as well but it’s but it’s important to to see um and I think the Family Division and family practition generally are quite at home
With the with these sorts of Concepts but it’s um it’s the individual person’s ability to communicate and to understand the um uh the process which must inform the um approach that Advocates have not only to representing them but also importantly ensuring that the way that um uh information is sought from them we
We talk about it in terms of questioning but it’s it’s really more of a facilitation to ensure that the the evidence comes out in a way which ensures the Integrity of the of of the evidence before the court it’s um uh so as far as family practition practitioners are concerned that
Assessment that proper understanding of um of communication Styles deficits skills how whatever language you want to use is much more important than the identification of a particular um diagnosis and not only can um the individual’s communication um abilities I think as one of the other panelists made absolutely clear it’s not just
Personal to that individual but it’s also so situational um and uh being alive to to to to the kind of pragmatic and practical Solutions means that there there are going to be um individuals in respect of which bespoke arrangements are going to be necessary to be able to
Deal with that issue and um courts and family practitioners um have been warned um repeatedly not to get on tram lines um or one- siiz fitzall type set of um adjustments uh when um uh when when ensuring the Integrity of evidence with people with those sorts of um access to Justice
Needs so on to page um 33 um the question of vulnerability um it it’s it it can be um uh too broad a term but it is useful sorry um page 33 please um Amy um it is useful because it very much um uh situates the kind of adjustments that
Might be necessary in it in the in their broadest context so um um a good encapsulation of this is in um Lord Reed’s um formulation in the um Osborne and the Pearl board um case in the in the Supreme Court Justice is intuitively understood that’s the kind of
Intuitively understood is the kind of legal formulation that you can only get away with if you’re in the Supreme Court but anyway it’s intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions in the exercise of administrative or judicial
Functions um and uh that sort of underpinning um uh formulation is is good to bear in mind and it’s a good one to throw out to um uh those individuals and public authorities whose job it is to fund and resource the sorts of um uh uh adjustments that are needed the
The next point I wanted to go on to is about the cloak of competence which is a really interesting and I in my experience helpful and um useful concept um for courts to get their heads round um how individuals are presenting so um this is um this is a term which was
First used by um uh Dr Parsons in Reen a child um Dr Parsons had noted that one feature of the mother’s presentation is that she initially presents as far more cognitively able than is the case now obviously a lot of the time in the context of neurodiversity we’re not
Strictly speaking about cognition at all but we are um dealing with again um vulnerability and barriers to participation and um as the other panelists have made clear the sorts of maladaptive coping strategies or even um masking that um that clients can develop mean that um an individual can appear
That they’re um uh much more um able to participate than they are in fact and that um cloak of competence um is something it’s a concept that um uh family courts are increasingly aware of because um in any circumstance where um a person is is under pressure to appear
Their most competent um uh and and credible self um the the pressure to to seek to appear and to sort of mask um the difficulties that might be faced um are obviously intense and there has to be a way of an Escape Route for those um participants in proceedings and the
Concept of the cloak of competence is one which if um uh uh courts and um representatives are sufficiently astute to it um Can can help a client to feel sufficiently safe in order to make those vulnerabilities known to um to the court um uh and for the for the same reasons
The the family courts have noticed and family practitioners um increasingly are are familiar with the um concept that um self-reporting will be unreliable um because individuals obviously choose not to disclose for fear of discrimination ridicule or a more punitive response so the advice general advice is an advocate
Who suspects a witness or a defendant or um um a party in family proceedings or whatever proceedings should consider asking questions of that person’s um asking appropriate others to make inquiries or to seek expert advice in an environment which is safe for that person and non-judgmental I just wanted
To highight like page 58 please um it was a very long powerp pointer um and it’s right that um we’re all stressed when we go to court but it’s important to note that the impact the cumulative impact of stress on um uh uh on on individuals in the in the justice system
Uh taken with everything else um can uh lead to very extreme stress reactions and um avoidance um and um I just wanted to draw your attention to the advoc advocacy toolkit U number five at 4.25 has got some really helpful guidance practical guidance for um Advocates um
Uh dealing with that um sort of situation so um the the rest of the um uh of the PowerPoint really does sort of go into the to the sort of mechanics of um uh the different sorts of um uh modes that the brain can go into and put under
Particular stress and I’m not an expert on that and we’ve heard some really good experts um speaking about those practical um difficulties um and the Practical impact of those cumulative matters um I think I would just say um P page 84 please um that as professionals um that there are sort of
Um a few um and you know a lot of us are legal aided and we don’t have a great deal of um uh of funding and time to cover the the extent of the of the work that needs to be done to properly support individuals um but as professionals um
Seeking to support um uh individuals through what might be the most stressful time of their lives that um taking taking time to listen to to learn about your clients individuals and what they want individual um needs and what they want what they actually want is um much
A much better use of your time than reading what the diagnoses are um and and and planning your representation according to diagnosis um do not immediately focus on criticisms think about the positives and how you can help um ask going back to the issue about situational differences asking your clients how they experience
Certain situations um and how they react to in particular professionals um can solve a lot of problems early on you might have an individual who has found it impossible to be understood by somebody who is reporting on them and if you’ve asked that question if you’ve if you’ve
If they won’t they may not volunteer that information you can’t rely on self-reporting if you’ve asked that question yourself then there’s a better chance that that whatever report that’s prepared in respect to them is going to more um uh be better evidence try to adapt your style to the
To the to fit the client’s needs and think about preparing a one-page profile Aid Memoir for you in your file so that you’ve always got it in the front of your mind when you’re taking any steps in your client’s case about what the specific um characteristics are of that
Individual that make it difficult for them to access and uh the justice and effectively participate in the process that’s all I had I’m just looking at the time and thinking um i’ I’ve better call a Hal there thanks Mark thank you so much Amanda for that right so now is the
Time where we’re going to be um delving into the Q&A and answering some of your questions I am conscious of the time so I’m not going to do too many questions so apologize if I don’t get through to you all but um first things first a
Question from from Alan um and he says he’s interested in if any of the experts have um had attended vulnerable witness training and if so what they thought the guidance for dealing with neurodiverse people um and he alludes to it saying it was Prett condescending with one siiz
Forits all approach um again the floor is open for you to take those questions but I’m assuming vulnerable witness training is something that I suppose Council have had to do I I know I’ve done it and I’m sure Amanda has done it so amand maybe you want to take that
Question unless any of you other guys want to answer it um I I think we’re in we’re in the early days of um this kind of training um I’m interested to know whether it was the family or the criminal um vulnerable witness training that was attended
Because I I I found the the the um training run by the Family Law Bar Association really quite advanced compared to the criminal one that that went that was at middle Temple and that’s not to criticize the individuals that were running the training um I think everyone accepts that we’re in you
Know we’re in the shallows of um of those um of those process of those um sets of training and um yeah I mean quite I think one of the one of the points about the cross-examination techniques in particular in that kind of training is that you’ve got a limited
Amount of time to get some very key points across um and I agree it should be a lot more nuanced and um as I say I think that the family law training has got a lot to teach other jurisdictions about um uh more person centered approaches to
Access to justice so I agree um do you think that terms like disorder should be replaced with condition as neurod Divergence isn’t an illness or disease and that’s from B I’ve slightly rephrased that but it gets to the point I was wonder if I could jump in here on
That I’m probably know that I’m probably was would’ be considered the worst offender in that regard in this panel session today so I very deliberately you’ll notice I used the word person with autism or individual with autism I know this is frowned upon I do think that the National Society had a study
Where it found that a lot of people not the majority but a lot of people with Autism certainly the ones that took part which I would say would be a select group of individuals with autism not represent of all individual do favor the identity first so artistic person I
Think in a forensic context it’s really D dangerous and potentially damaging because it gives over the impression the person is unable to change there inflexibility in both their attitudes their behaviors their motivations and so I very deliberately use individual with autism very deliberately and also use the word disorder very deliberately as
Well I know that again there’s a favorability towards autism spectrum or autis conditions again I think this is really damaging in a forensic context if you’re talking to like jurors and lawyers no offense um judges who already have misconceptions around autism like the ones were discussed today if you
Fling in it’s a condition almost demeaning it devaluing it when we’re already kind of going on this idea that and everyone’s you know neurodiversity and that and everyone’s somehow got autistic treats I think it’s really demeaning the disorderness nature of it for individuals who’ve been so disordered or um impaired that they’ve
Actually engaged in a behavior in the first place largely I actually was in a prison in the M Midlands of the England now I had was had a luxury and joy of meeting with a lot of artistic prisoners there and I asked them this question what do you think about disorder what do
You think about individual with autism and it was UN ninous that they feel it’s very disorder it’s very impairing for them it’s caused a big issue and so so I really do feel that it’s really important to capture and be very nuanced as to the kind of populations we’re
Talking about and dealing with when we use different terminology yes neurod divers is great neurodiversity is great and a spectrum conditions great in a community setting where a forensic setting my strong views are stay well clear ‘re already struggling to get people with Autism who’s generally committed an offense because certain
Features have been a criminal you know a vulnerability Factor you know provide that context of vulnerability let’s not in my view further muddy the waters and make it because I mean I’m going to stop after this last point but I’ve actually had cases where defense lawyers obviously some are really great some are
Less knowledge over autism and I’ve actually had defense leers say the autism is immaterial to their defense it’s not important to look at in relation to their F Behavior anything in terms of diversion or leion or anything like that and that’s because they have seen the person as been like all
Everyone’s on Al Spectrum you know they’re very highly articulate very intelligent and a very professional jaw yeah as I’ve already alluded to this can often mask and Amanda also mentioned that mask you know this um cing um can really mask their actual impairments and as Max also discussed the anxiety that
These sits provoke it’s overwhelming for some with autism I’ve heard it said again I said that was going to be my last point but I heard it says so many times oh but the court room is anxious for everybody the you don’t know what questions going to be ask you but for
Someone with autism it’s much more intense much more pervasive to the point where they will struggle to think about what they want to see they will miss out large proportions of what’s going on around them such as their anxiety I’m going to stop there and let my colleagues speak but it’s something I
Feel very strongly about which is why I really wanted to come in there and I know I’m not popular in that view but I think um it’s just just to add absolutely and and I think from a forensic point of view as a practitioner we we need to move away
From the idea it’s about making people feel better you can’t make people feel better all you can do is everything to protect the Integrity of the evidence and those are the those are the steps which need to be be require be absolutely man I I just add in here
Mark as well that I was really saddened when anarie and some of our colleagues did a great day conference at University of sford tremendous presentations and and Dr Luke Vinter did a presentation and I posted up images on Twitter about what he was talking about and the diet tribe about terminology the vitriolic
Animosity that he received when all he was doing was trying to promote understanding about people autism in that prison context and people with Autism are sex you know engag in sex offend to try and really understand that and I just thought listen guys we’re get
It was just sad to see you know we’re all want to do what we’re doing today and further the knowledge and you know make people also have more effective participation in own trials and be hearings Etc it’s just it’s just it’s so sad to see Amanda you’re right it’s it’s
We need to move away from making people feel better and and face for people it is a disorder it’s very much um I really real thank you very much especially extend thanks to neurodiversity is key or neurodiversity is key um em Daniel thank you to Dr
Amory day thank you to to Professor CLA Al thank you to Dr Max Lin and thank you to Amanda Weston Casey and of course thank you to Amy Hughes for being the moderator in the background and of course um Tom Wayne right as well um much gratitude to you for helping
Organize these sessions um so before you all go um there are neurodiversity webinar series of course this was series two the up and cominging webinars are the next one is part three that’s on the 23d of January 2024 almost upon us and that’s about witness handling and that’s um
Shared by Amanda Western Casey Again part four is the on the 20th of February 2024 neurod Divergent children in the justice system system part five is on the 19th of March 2024 neurodiversity in the criminal justice system and final part six the last episode in the series on the 16th
Of April 2024 neurodiverse lawyers there’s also a wide range of events at Garden call um with free tickets available and the next ones um actually tomorrow um which is um Tuesday 22nd of November that’s between 1 p.m. and 5:30 p.m. and it’s a hybrid conference about children’s rights um and children and
Detention and we have another one at Garden CT Chambers next week on the 29th of November between 6:00 p.m. and 7:30 p.m. it’s a hybrid event as well illegal migration act part three Third Country removals and interim measures on the 5th of December between 6: p.m. and 7:30 p.m. we have hybrid
Training training an introduction to nonviolent resistance NRV or NVR rather trauma inform training for family practitioners and Guardians and on the 6th of December 1 between hours of 1:30 p.m. and 6:45 p.m. we had a hybrid conference brook house inquiry what lessons have been learned so that’s all
Of the the events of course all of the events that Garden CT does are on the website we have a whole range um hybrid events webinars and lots of things going on towards the end of the year and many more things going on into next year so please do check out the
Garden Court website um again um the we have to shout out various ongoing research projects they need your help guys um so we need some respondents and interviewees the University of b are doing a new study as part of their autism in court project where they’re looking for respondents they’re also
Surveying Justice professionals on their experiences of working with autistic people in court and tribunal proceedings with a particular focus on giving evidence and the use of special measures of course that’s intermediaries we are also running parallel surveys for artistic adults and friends family members who have supported them through
The court process if you’re interested in taking part please do let us know information about how to get involved will be circulated in the followup email after the webinar also Dr Tom Smith the University of West England and Dr roana Delani um at cardif University are also undertaking a research project about how
Autistic individuals access Justice through criminal defense lawyers they are currently looking to interview Barr sers and accredited police station Representatives also chared legal Executives about their views understanding and experiences of representing autistic individuals accused of crime in England and Wales interviews are voluntary confidential would last around an hour con conducted
By Microsoft teams if you’re interested in finding out more about the project of been interviewed um information about how to get involved will be circulated in the followup up email after this webinar and of course most importantly slides that again there’s been some so much information that’s been soen about
There are tool kits and a full range of resources available to you I thank all of you guys all of our attendees for joining us and we would appreciate your feedback and a feedback form will pop up in the zoom when the zoom end so please
Do fill this if you are able to do so I know we overrun by 50 minutes but I’m so glad that we had so much to discuss um so much information for you guys I hope you found this session helpful and again um have to Big up and give um Extended
Gratitude to all of the panelists tonight thank you guys this is the end of the session and um I B you all have a good
1 Comment
Fantastic webinar! Thank you very much for making this session available to all. We'll be sharing the video with our practitioners and recommending it as CPD.