Graeme Hydari: Criminal justice system failing autistic people

Graeme Hydari

Despite receiving guidance, many of the judiciary and magistracy do not have a basic understanding of autism spectrum disorder, which is a developmental condition that cannot be treated or improved by medication. It is usually accompanied by common traits such as social anxiety leading to isolation, obsessional behaviour and often severe depression.

The condition does not provide a legal defence. It is not an excuse or justification for actions. But it does often provide an explanation for what amounts to criminal behaviour.

Those on the spectrum are often found to be legally ‘fit to plead’ and able to participate in their trials with special measures support, including the assistance of an intermediary. On conviction, their condition is unlikely to require in-patient hospital treatment unless there is an accompanying mental health condition, and their lack of mental development is unlikely to be impaired enough to provide a legal defence of insanity.

The police and CPS rarely exercise their discretion not to proceed with criminal charges against autistic people, even when charges are not serious and representations and supporting reports have been provided.

The excellent police and court diversion schemes, supported by the Care not Custody campaign, do not seem to pick up those with autism. Autistic suspects in police stations are legally entitled to an ‘appropriate adult’ to assist them during interview, but have no entitlement to one with an understanding of their condition.

My firm is regularly instructed by parents of autistic children. Applications to transfer legal aid in such cases are often refused by judges.

The court process can be problematic. It is essential to know how to communicate with an autistic defendant. Videolink hearings are inappropriate as autistic people often have difficulty with receptive and expressive language, and do not immediately understand questions and court directions. They need certainty and detailed explanations. Continuity of legal representation is essential.

Long delays and successive bail without any noticeable progress cause acute anxiety. This can lead to suicidal thoughts and acts.

The internet can be a minefield. Many do not have friends and often lead isolated lives, so the internet provides solace. But their lack of social experiences or boundaries, and misinterpretation or literal, rigid interpretation of communications, coupled with obsessive behaviour, often leads to them being charged with harassment offences.

When someone on social media blocks or ends an online relationship, an autistic person often needs a detailed written explanation. Sending persistent messages seeking this can amount to an act of harassment.

Such cases should be diverted from the police and courts and dealt with by a referral to a knowledgeable psychologist. They could explain the inappropriateness of such behaviour and the effect upon the recipient.

Autistic people are also vulnerable to being charged with the possession of indecent images of children. Many have never had any kind of relationship. Social isolation and an over-reliance on the internet to provide stimulation can lead to an addiction to pornography. Often immature, autistic people may find images of adult sexual activity distressing and will view sexual images of children to learn about sex without a particular sexual interest in children.

Young autistic people may commit sexual offences against other children as they try to learn about sexual behaviour. Such offences are always very serious but the defendant’s condition should be given more weight when considering culpability at the time of sentence.

Autistic offenders are unlikely to go on to commit more serious physical offences. They are usually too afraid to have such physical contact and are unlikely to be dangerous.

To prevent further such offending, these cases should be dealt with by the provision of compulsory counselling by an autism specialist psychologist in the community rather than imprisonment.

Graeme Hydari is a criminal defence partner at Hodge Jones & Allen, this article first appeared in The Law Society Gazette.