The criminal justice system needs to be more sensitive
The criminal justice system needs to be more sensitive to the possibility that perceived offenders may have a hidden disability as a result of brain injury or autism spectrum disorder (ASD), according to a leading UK criminal lawyer.
Paula Porter, head of criminal law at Thompsons Solicitors, the UK’s leading personal injury law firm, believes the current system should be improved to better cater for individuals with acquired brain injury (ABI), autism spectrum disorders, learning disabilities and behavioural problems.
She said: “Such individuals are vulnerable and may not understand the motives or dishonest intentions of those who may take advantage of them.”
Paula is calling on the legal profession, the police, probation and the judiciary, to better understand brain conditions and behaviours and how they can work with clinicians to achieve the most appropriate outcome for these individuals.
Paula said: “Early intervention, better educational support and understanding of why such individuals get into these situations should help make the justice system fairer for offenders with these conditions, and reduce the risk of re-offending.”
In the meantime there are some practical steps to help safeguard people with brain injuries who find themselves in custody:
- Every person in a police station is entitled to free and independent legal advice and has the right to ask for a firm with specialist criminal lawyers who have particular expertise in ABI, not simply the duty solicitor. Individuals must be encouraged to exercise this right.
- The legal representative should assess whether the individual is suffering from a disability, establish if they are able communicate adequately and should find out if they are being treated by a particular clinician. It is important for the lawyer to ascertain whether their client has a brain injury, as opposed to mental health problems, and they may need to get in touch with whoever is treating them, if practical, to establish their needs.
- Whether or not it is possible to make urgent contact with the treating clinician, obtaining information about their expertise should enable the lawyer to better understand the nature of their client’s condition. If the detained person is a member of the brain injury charity Headway, for example, this will provide a strong steer as to the condition from which they are suffering.
- If the custody officer, who has a duty to look after the welfare of detainees, considers someone to be vulnerable or is having difficulties in communicating and understanding the process, they should request the attendance of an appropriate adult.
- Maintaining a silence is not a safeguard for a brain injury survivor who is in custody, but such individuals should not be unrepresented when they speak to the police. It is crucial that the appropriate adult, whose job it is to support and assist in facilitating communication and observe whether an interview is conducted fairly, is also able to communicate well with the individual.
- The appropriate adult, where the interviewee has a brain injury, may often be someone involved in the care of the individual rather than a family member, e.g. a nurse or a rehabilitation worker.
- The appropriate adult’s job is not to give legal advice, but they have the right to request a solicitor even if the detainee has not done so. The detainee can refuse to see the solicitor when he or she arrives but in almost all cases, an effective appropriate adult will be able to persuade the detainee to see the solicitor.
- The appropriate adult has a duty to ensure the police interview is conducted properly and fairly and must be present during any caution or charge, although they should not be present during the private consultation with the legal representative.
- Police need to be sensitive in how they handle interviews with people with ABI and the appropriate adult must be able to ensure that the interviewee is not panicked and that clear, uncomplicated messages are given and understood.
- Regular breaks should be built into the interview process and any sign of distress should be an immediate trigger for the interview to be stopped. A clinician who has worked with the individual will know better than most what these signs will be.
For more information about the role, duties and rights of the appropriate adult see the Code of Practice for the detention, treatment and questioning of persons by police officers, click here.
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