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Competent representation for autistic clients
Few lawyers are sufficiently trained to represent neurodiverse clients. Stephanie Hendry, an ambassador for Scottish Autism explains the need.
The criminal offence & autism
There are two elements to conviction of a criminal offence; the mens rea (the mental element) and the actus reus (the action). In order to convict an accused person, the mens rea and actus reus for the alleged crime must be proved to have been present at the time the alleged crime was committed.
But what if you were a person who quite often fulfilled the actus reus element of a crime, but not so the mens rea? Perhaps your mental state was quite different. Would you know to tell your solicitor, without having had any legal training, that both elements weren’t satisfied, therefore you couldn’t be convicted? Should that burden fall on the accused? Of course not, and of course it shouldn’t. This is the challenge that autistic people face when they find themselves accused of a crime.
When an autistic person is in a situation that they find distressing, it can contribute to feeling overwhelmed, anxious, stressed, or confused. What we perceive as being uncooperative might actually be as a result of not understanding what is going on, understanding the consequences of their actions, or what is happening when faced with an unfamiliar situation like a police cell or court room. Without authorities and criminal practitioners having the requisite knowledge of autism, they cannot competently make decisions in relation to the detention, arrest, prosecution and defense of that person. For example, should a person throwing his arms around as a result of sensory overload be detained by police for that action in the same way that a person who deliberately struck another would be? Should they be interviewed about that involuntary action, when the reality is, that some people may have differences in the way the move or co-ordinate their body especially when stressed? Should they be treated like they have committed a criminal offence and prosecuted as such? These are the questions that criminal practitioners ought to be asking themselves and in turn, putting to the relevant authorities. The realisation inevitably being that the treatment of autistic people ought to be more considered, well out with the comfort zone of the neurotypical norms of the system. Otherwise, the consequence is the unfair, mistreatment of autistic people, exposing them to an unmerited situation.
The court room
The approach taken by solicitors and the judiciary in general, particularly in the court room would benefit from change to ensure that an accused autistic person experiences a fair process. Sharp, stern and confrontational questions are the norm in the trial environment and when put to an accused in cross examination, are often entirely appropriate. However, for an autistic individual, that style of questioning can intimidate at a level exceeding that intended by the solicitor, and in some cases contribute to the person feeling overwhelmed and unable to comprehend and therefore answer the question put to them. It can also be the case that the structure and emphasis within the questions is difficult to process and interpret. A pause in response, which in many cases, is what is needed to process and respond, could be construed as not answering the question or trying to be deliberately evasive.
Indeed, it is entirely foreseeable that the court room environment itself could trigger a sensory overload, and practitioners should act accordingly to communicate the needs of their clients to the relevant officials. Bright lights, loud noises, people leaving and entering the public gallery in the midst of the process are distracting for a person with intense reaction to the senses.
A solution: training and consultancy
Criminal practitioners and indeed the legal profession in general would benefit immensely from receiving specialist training or consultancy on representing autistic clients.
Scottish Autism are the largest provider of autism-specific services in Scotland and a leading authority and advocate for good autism practice. Scottish Autism are committed to sustainable societal change that will support autistic people in their local communities. Their aim is to work across a range of legal practices to ensure there is an on-going commitment to accessibility for autistic people.
Since 2019 their advice line has received 128 enquires asking for support and advice across a range of legal issues, including for a recommendation as to which firms to instruct. The impact on these individuals and their families is high, often resulting in long term mental health issues, imprisonment and long-term trauma. Autism is so individual that whilst some broad principles can be applied, it is really about on-going engagement and learning to ensure adaptations are useful and make a difference to as many autistic people and their families as possible.
Scottish Autism’s consultancy service can provide solicitors with advice on how to provide an inclusive and welcoming environment for autistic clients, ensuring their competent representation.
Training is offered to support solicitors improve their understanding of autism. An experienced Community Advisor will support learning throughout and guide the solicitor on putting new knowledge into practice. Training is offered either online or bespoke. Online training costs £60 per person and has a variety of start dates throughout the year covering a range of autism related topics, with each course requiring around six hours to complete. Bespoke training events can be delivered face to face or online and are designed to focus on developing a solid understanding of autism as a developmental difference. Special attention is paid to how this may look in the context of the business and the Autism Community Advisors would provide a personalised learning approach for the team. Associated fees are dependent on the business’ requirements.
Any solicitor wishing to enhance their knowledge of autism to ensure that they are competently representing autistic clients and thereafter be recommended for instruction, please contact email@example.com
Stephanie Hendry, Scottish Solicitor
Published April 2022
Image copyright of Jonathan Andrews