Dr Felicity Gerry QC, at Libertas Chambers discuss the importance of considering autism spectrum disorders in criminal proceedings. Watch her recent webinar delving into the topic of Autism & the law.
In criminal proceedings legal professionals have to consider autism spectrum disorders (ASDs) in four main respects:
- Procedural adaptations so that a child with an Autism Spectrum Disorder (ASD) can effectively participate in a criminal trial;
- How autism might impact on criminal responsibility, particularly in cases where a child is accused of being complicit in a crime;
- whether past challenging behaviour can be properly used to demonstrate a tendency to commit a particular crime.
- how autism can be considered on sentence.
Often these issues arise in relation to persons who are undiagnosed until they have the benefit of legal representation.
ASDs are neurodevelopmental disorders characterised by reciprocal social interaction and communication impairments and restricted repetitive behaviours.[ii] Whilst there is no evidence to indicate that individuals with an ASD are more likely to offend when compared to individuals without an ASD (and may be more likely be victims of a crime rather than the perpetrator), clearly some individuals do engage in behaviours that result in involvement with the criminal justice system.[iii]
An increasing number of studies are indicating that certain features or symptomology of ASD can provide a real context for vulnerability to explain engagement in a range of offending behaviours including: arson; the viewing of indecent child images (images of child sexual abuse); violent behaviour; sexual hands-on offences stalking terroristic behaviours cybercrime and mass shootings. It is imperative that the role that certain features or symptomology of ASD can have in the offence or offences in question is understood when considering alleged conduct and state of mind and appropriate special measures. It is also particularly critical in terms of diversionary measures, sentencing, and out of court disposal.[iv]
As more is understood about ASDs the practical reality is that it can remain misunderstood by criminal justice professionals and/or jurors may hold misconceptions about ASD. This may have a negative impact on the decision making regarding an accused person with ASD. This may be procedural; the behaviour of a person with ASD at trial may be alienating and consequently highly prejudicial.[v]
Research by La Trobe University in 2017 called for accessibility and support measures for people with disabilities in the criminal justice system recognising that access to justice for people with disabilities is a ‘significant issue in every jurisdiction in Australia’.[vi] Approaching the issue as one of access to justice on an equal basis with all others for persons with disabilities the La Trobe research suggested the provision of procedural and age-appropriate accommodations’ and training for judicial staff attaing that support should ‘facilitate [persons with disabilities’] effective role as direct and indirect participants, including as witnesses, in all legal proceedings’.
Procedural adaptations were suggested as follows, drawn from a range of legislative provisions:
- additional breaks in court proceedings;
- counsel explaining court processes to the accused person in an accessible way, and ensuring language is accessible or slowed to allow interpretation and/or explanation;
- providing a support person, including a family member or a more formal support person, such as court-based supporters under ‘special witness declarations’;
- ‘easy English’ summaries of trial proceedings including provision of dot-point summaries at the end of each court day;
- video testimony for those who may find the courtroom environment distressing or confusing;
- educational sessions/programs for accused who may be considered fit to stand trial following education; and
- modifying courtrooms in a variety of ways to make them more accessible.
These procedural adaptations for accused persons with an ASD are now relatively well progressed in England and Wales: there is detailed guidance in a toolkit from The Advocate’s Gateway[vii] and the Autism Society [viii]and substantial guidance in the Equal Treatment Bench Book.[ix] Representing a child with ASD who is accused of a serious crime is likely to be one of those rare cases where an intermediary would be useful and would be funded in England and Wales. Currently some intermediary schemes for witnesses are in place in Australia for witnesses but not defendants.[x] It would be important to explain to the jury that such adaptations are nnot relevant to the charges. This also accords with guidance published by the American Bar Association.[xi]
Some of the common features of ASD might affect an assessment of criminal responsibility. A person with ASD may appear evasive, remorseless, lacking in empathy or look guilty. They may also have issues with memory and with sequencing of events; lack of outward emotional expression; unusual ways of speaking; inappropriate expressions or behaviours; difficulty with making or maintaining eye contact; literal cognitive style or interpretation of information (cognitive rigidity or inflexibility of thought); issues with compliance; difficulty in recognising simple conventions in conversations (social cues); presence of paranoia; issues with time to respond; echolalia or repetitive vocalisations; repetitive behaviours or interests; and/or particular obsessions.[xii]These are features of ASDs that may be perceived by criminal justice professionals and jurors as being evidence of guilt or lack of remorse. This can significantly affect outcomes where wrong conclusions may be made about credibility and reliability if the ASD is not explained. In addition, these many features of ASDs may well be relevant to criminal responsibility and an understanding of the functioning of the individual could make a difference in the verdict. I. some cases there may be a profound impairment. In others it will be a question of assessing the comprehanison at the time. Where autistic people are accused of complicity crimes, that is not acting as a principal offending but playing a role in a plan or as an accessory, research is lacking as to what extent autistic people may perceive the essential terms of such a plan or act intentionally in furtherance of someone else’s crime. Recent cases in England and Wales have highlighted a reluctance by courts to recognise autism as relevant to state of mind. In the absence of clear research, there is a risk of an assumption of complicity. It may be that an autistic person would be less likely to engage in a crime if the principal’s objective was understood. The point here is that ASDs can be relevant to knowledge, intention and contemplation as well as understanding conduct. Diagnosis would require expert evidence but expert evidence can also help on the ability to know, intend or contemplate, particularly in fast-moving violent events. This might depend on social, education and health records which may well contain evidence of challenging behaviour, particularly where an accused person has been undiagnosed. Research is currently lacking as to what extent challenging behaviour exhibited by an autistic person in the past is being used in criminal trials to allege that an accused person has a ‘tendency’ to commit a crime. The danger is that the jury will not hear expert evidence on responsibility for fear of triggering admissibility of uncharged conduct. This could be both misleading and unfair where behaviour was attributable to frustration rather than criminality and repeat behaviour may beseen as aggravating an offence and copying behaviour. This goes beyond procedural issues and leaves a question mark over how criminal offences are defined and whether those definitions fail to account for autistic conditions. It could be said that to withhold the information on autism from the jury creates a false impression, particularly if evidence is given.
The approach to autism remains ad hoc. Much may be due to a lack of understanding amongst legal professionals: A 2014 study by Berryessa[xiii] which investigated judicial views of criminal behaviour and intention of offenders with high-functioning ASD in the United States (US) of America supports the need for and creation of meaningful training programmes on these issues for judges, as well as the criminal justice system as a whole, so that judges are able to more fully understand these issues on their own and meet the needs of these individuals in order to ensure that they have a fair trial.[xiv] Otherwise, the fear is that a culture of ignoring autism as a relevant characteristic is ignored when considering criminal responsibility.
At the sentencing stage in Australia consideration of whether the offender suffers from a mental condition that affected his conduct, and what the offender’s motive was has developed. Most jurisdictions have multiple punishment objectives – including deterrence, rehabilitation, incapacitation, and retribution.[xv] Relatively recent research has suggested that to the degree that an offender with ASD “was unable to understand and react to the morally relevant features of his criminal action to the same extent as a corresponding neurotypical offender, the former should be treated more leniently than the latter” but otherwise should be treated like an otherwise similar neurotypical offender.[xvi] It behoves legal representatives to understand the client, educated themselves and the court n the client’s condition and its impacts and ensure that the system moves to accommodate what is now known about ASDs and related personal and societal abuses and disadvantages thus giving courts a role in the community to change legal approaches to disabled persons to meet their needs and ensure that they are fairly tried and outcomes (whether by verdict or sentence) are meaningful and safe.
[ii] Autism spectrum disorder, International Classification of Diseases 11th Revision (online, May 2021) https://icd.who.int/browse11/l-m/en#/http://id.who.int/icd/entity/437815624.
[iv] The University of Salford and SicKids, 2017) Si; Andrew G Rowland. Living on a Railway Line: turning the tide of child abuse and exploitation in the UK and overseas (Discussion Paper, The Winston Churchill Memorial Trust and the University of Salford, 2014).
[v] Ian Freckelton, Forensic Issues in Autism Spectrum Disorder: Learning from Court Decisions in Michael Fitzgerald (ed) Recent Advances in Autism Spectrum Disorders – Volume II (InTechOpen, 2013).
[vii] Planning to question someone with an autism spectrum disorder including Asperger syndrome: Toolkit 3 (Toolkit, The Advocate’s Gateway, 1 December 2016)
[ix] 8 Judicial College UK, Equal Treatment Bench Book (February 2021) https://www.judiciary.uk/wp- content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf.
[xi] Elizabeth Kelley (ed), Representing People With Autism Spectrum Disorders A Practical Guide for Criminal Defense Lawyers (American Bar Association, 2020).
[xii] See Clare Sarah Allely, Firesetting and arson in individuals with autism spectrum disorder : a systematic PRISMA review (2019) 10(4), Journal of Intellectual Disabilities and Offending Behaviour 89; Clare Sarah Allely and Larry Dublin, The contributory role of autism symptomology in child pornography offending: why there is an urgent need for empirical research in this area (2018) 9(4) Journal of Intellectual Disabilities and Offending Behaviour 129; Clare Sarah Allely and Ann Creaby-Attwood, Sexual offending and autism spectrum disorders (2016) 7(1) Journal of Intellectual Disabilities and Offending Behaviour 35; Colleen M Berryessa, Judiciary views on criminal behaviour and intention of offenders with high-functioning autism (2014) 5(2) Journal of Intellectual Disabilities and Offending Behaviour 97; Penny Cooper and Clare S Allely, You Can’t Judge a Book by Its Cover: Evolving Professional Responsibilities, Liabilities and Judgecraft When a Party Has Asperger’s Syndrome (2017) 68(1) Northern Ireland Legal Quarterly 35; Lino Faccini and Clare S Allely, Rare instances of individuals with autism supporting or engaging in terrorism (2017) 8(2) Journal of Intellectual Disabilities and Offending Behaviour 70.
[xiii] Colleen M Berryessa, Judiciary views on criminal behaviour and intention of offenders with high- functioning autism (2014) 5(2) Journal of Intellectual Disabilities and Offending Behaviour 97.
[xiv] Ian Freckelton, Forensic Issues in Autism Spectrum Disorder: Learning from Court Decisions in Michael Fitzgerald (ed) Recent Advances in Autism Spectrum Disorders – Volume II (InTechOpen, 2013).
Professor Felicity Gerry QC is admitted at the International Criminal Court (ICC) and the Kosovo Specialist Chambers (KSC) in The Hague, to the Bar of England & Wales and in Australia (Victoria and the High Court Roll). She has also had ad hoc admission in Hong Kong and Gibraltar. As an international QC she is regularly called upon to handle serious, complex and sensitive trials and appeals at every level of court. Her cases and advisory work often involve an international or human rights element, including genocide, war crimes, torture, terrorism, homicide, biosecurity, illegal logging, human trafficking and other major domestic and international crime. You can speak with Felicity on LinkedIn.