The first of our 3-part free webinar series across July to September 2022 was held on Wednesday 27 July on the topic of Autism and the Criminal law.
The focus was on criminal trials in terms of procedural fairness, trial issues and sentencing where accused persons have an ASD. You can view the webinar here.
The webinar was introduced by Green’s List member Dr Felicity Gerry QC who specialises in international and domestic criminal law with an overlap with business and human rights law, particularly homicide, terrorism, war crimes and modern slavery. Felicity has experience of working with people with autism spectrum disorders as clients, colleagues, and the judiciary.
Two academic experts gave us the benefit of their expertise discussing the complex issues that arise in the context of criminal law in Australia.
Dr Gabrielle Wolf is an Associate Professor in Deakin Law School and has published in this field. She and Dr Gerry QC are working with Dr Clare Allely on some new research in this area. Dr Allely is a Reader in Forensic Psychology at the University of Salford and the author of a new publication by Routledge, Autism Spectrum Disorder in the Criminal Justice System.
On identifying and understanding the disorder
Dr Wolf reminded us of the explanation of ASD in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th edn) (as encompassing the two key criteria of: (i) ‘persistent deficits in social communication and social interaction across multiple contexts’; and (ii) ‘restricted, repetitive patterns of behavior, interests or activities’, which impair an individual’s personal, social, academic and/or occupational functioning), but also that ASD encompasses a broad range of impairment and manifestation of symptoms can differ substantially between individuals and for each individual depending on environment and stage of life.
On procedural rights
Dr Allely explained that there exist a range of features of ASD which can be displayed by a defendant with this disorder during court proceedings that can make them be perceived by decision makers (who might have little understanding of ASD) as being aloof, disinterested, remorseless or even imperious (O’Sullivan, 2018; Berryessa, 2021; Allely, 2022). Not providing the decision maker which information regarding a defendant’s ASD diagnosis may increase confusion / prejudice because many of the social mannerisms, expressions and behaviours which the ASD defendant may exhibit can often be similar to those displayed by guilty parties (Foster, 2015). In order to ensure effective participation and appropriate sentencing, there may be the need to implement reasonable adjustments and other special measures. Murphy (2018) developed a checklist of areas which needs to be taken into consideration when interviewing individuals with a diagnosis of ASD in a forensic setting including: personal safety; sensory issues; difficulties with reciprocal social communication; cognitive style and neurodevelopmental disorder and psychiatric co-morbidity. For instance, regarding appropriate questioning of an individual with ASD in a forensic setting, Murphy outlined several recommendations. Some examples of recommendations regarding appropriate questioning of individuals with ASD include:
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The individual should be given more time in order to process and comprehend questions and should also be given more time to provide answers.
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Avoid questions which may be leading and ambiguous in interpretation.
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Avoid questions that are non-literal and require any amount of inference, insinuation, deduction, or abstractive extrapolation.
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Questions should be direct and avoid the use of “tags”. An example of a tag question is “You went to the concert, didn’t you?”).
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Questions should also not include negatives and double negatives. Some examples of questions that include negative and double negatives are: “You would not disagree with that interpretation Jeffrey, would you?” or “Is it not the case that he did not go outside?”
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Questions should be avoided which are phrased as statements. An example of this type of question would be: ‘So you saw her leave the restaurant?”. These types of questions may not be recognised by an individual with ASD as being something that can be disagreed with. Instead, the example question above should be re-rephrased as a clear question - 'Did you see him enter the shop?' (Murphy, 2018).
On trial issues:
Dr Gerry QC gave a broad overview of the following:
• In general questions of function do not reduce criminal responsibility with relatively rare exceptions. This fits with a broad policy to recognise autonomy in disability but nonetheless 5 issues arise in a criminal trial – both procedural and substantive:
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The need to obtain expert evidence and make decisions as to service. Sometimes protection of client from improper prejudice means many psychiatric and / or psychological assessments currently do not form part of trial process. Nonetheless it is important to identify your client’s needs to enable effective participation and to ensure that questions as to non -prosecution, diversion and defences have been properly considered in the light of any expert opinion. In advance of trial, uncovering an ASD may give an important role to prosecutors to change their approach.
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Procedural fairness requires us all to understand and engage in approaches that enable effective participation by those with an ASD. Toolkits have been developed by The Advocate’s Gateway in England and Wales which are a useful guide. Felicity worked with TAG for over a decade. She now researches on ‘Trauma Informed Courts” and suggests reasonable adaptations for those with an ASD should be court led. One example of progress falling short in Victoria is the intermediary scheme for victims and witnesses, not currently open to accused persons.
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In substantive law Dr Alley’s new book highlights how we need a fresh approach to repetitive / obsessive conduct such as downloading images in abuse / terrorism cases. It may be that collection does not prove or aggravate an offence.
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Of particular interest is the effect of an ASD in cases of complicity where an ASD may affect knowledge and / or foresight of what another will or might do.
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There are also evidential issues around the exclusion of police interviews and whether functioning is being misconstrued as ‘bad character’ or ‘propensity’. This can be particularly complex whether there is past challenging behaviour by an undiagnosed person living with an ASD and there may be times when a prosecutor should not apply to use prior offences or uncharged conduct.
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On sentencing
Dr Wolf was short on time but explained that it might be appropriate for a sentencing court to consider:
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the potential for a defendant’s ASD symptoms to reduce their moral culpability for their offending (for instance, if they have a diminished capacity to understand the moral wrongfulness of their offending)
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whether to mitigate the sentence of an autistic defendant as a consequence of moderating the usual sentencing objective of deterrence in light of the impact of their symptoms (for instance, a sanction may not discourage an autistic offender from reoffending if they are motivated by reward rather than punishment and their offending was inadvertent)
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whether a prison term in particular would be more onerous for an autistic individual than a neurotypical offender due to their symptoms (for instance, because their communication difficulties may lead to their conflict with and victimisation by other inmates)
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if incarceration would lead to a deterioration in an autistic offender’s mental health and exacerbate their impairments.
She also adds that in choosing a sentence for an autistic defendant, the court will need to determine their prospects for rehabilitation and thus likelihood of recidivism. For this purpose, a court may need to consider the likely efficacy of treatments for ASD symptoms that might have contributed to the individual’s offending, but this can be unpredictable.
We also hope that you find the following resources useful:
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Allely, C. S. (2022). Autism Spectrum Disorder in the Criminal Justice System. A Guide to Understanding Suspects, Defendants and Offenders with Autism. Routledge.
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Berryessa. (2021). Defendants with Autism Spectrum Disorder in Criminal Court: A Judges' Toolkit. Drexel Law Review 13(4): 841-868.
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Foster, S. (2015). Autism is not a tragedy-ignorance is: Suppressing evidence of Asperger's Syndrome and High-Functioning Autism in capital trials prejudices defendants for a death sentence. Lincoln Mem'l UL Rev., 2, 9.
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Murphy, D. (2018). Interviewing individuals with an autism spectrum disorder in forensic settings. International Journal of Forensic Mental Health, 17(4), 310-320.
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O’Sullivan, O. P. (2018). Autism spectrum disorder and criminal responsibility: historical perspectives, clinical challenges and broader considerations within the criminal justice system. Irish Journal of Psychological Medicine, 35(4), 333-339.
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The Advocate’s Gateway Toolkits < https://www.theadvocatesgateway.org/>
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Felicity Gerry, ‘Trauma-informed courts (Pt 1)’ (2021) 171(7919) New Law Journal 16
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Felicity Gerry, 'Trauma-Informed Courts (Pt 2)' (2021) 171(7922) New Law Journal 16.
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Gabrielle Wolf, ‘Growing Enlightenment: Sentencing Offenders With Autism Spectrum Disorder in Australia’ (2021) 44(4) University of New South Wales Law Journal 1701
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Tessa Grant et al, ‘Criminal Responsibility in Autism Spectrum Disorder: A Critical Review Examining Empathy and Moral Reasoning’ (2018) 59(1) Canadian Psychology 65
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Ian Freckelton, ‘Autism Spectrum Disorder: Forensic Issues and Challenges for Mental Health Professionals and Courts’ (2013) 26(5) Journal of Applied Research in Intellectual Disabilities 420
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R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Following events in this series will cover:
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24 August 2022 - Universal Jurisdiction – prosecuting and defending war crimes in Australian courts
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21 September 2022 - Mandatory sentencing in Australia – a question of legitimacy.
