Understanding ASD ADHD: Reducing the Risk of Unintentional Justice Bias

Following our recent workshop and attendance at CYCJ’s National Youth Justice Conference, Diversity, Inequality and Justice several things became more apparent emphasized across the two-day period. Namely, associated to a) ASD, and or ADHD, mannerism, and b) particularly in children and young people and the fact their capacities evolve, c) their rights not just within UNCRC (United Nations Conventions Rights of the Child) a legal requirement in Scotland, but also UNCRPD (United Nations Convention on the Rights of People with Disabilities) a treaty obligation across the whole of UK, ratified in 2009. Perhaps a ‘Time to Act’ is now, given the available data referenced and benefits highlighted in Autism, ADHD and Neurodiversity in Justice: Benefits of Indicative Profiling.  

Creating a neuro-affirming response to the support needs of ASD and ADHD and neurodiversity within the justice system requires viewing behaviour as an expression of need for those who experience communication or processing challenges. By responsively identifying and mapping neurodivergent and wellbeing needs early, justice system professionals can adjust communication styles, reduce sensory overwhelm, and recognise and mitigate unintentional prejudices that often lead to unfair outcomes or potential judicial mismanagement.

How does ASD, ADHD and neurodiversity present in the justice context?

Neurodiversity is an inclusive and generic term, perhaps one that is now being over-used with unintentional consequences, as whether we like it or not, we are all neurodiverse, but we do not all have a lifelong neurodevelopmental condition (or the nuanced alternative ‘Neurodivergent’). In a societal context, neurodivergent conditions are clinically defined as lifelong (pervasive), neurodevelopmental conditions, not disorders (a prefix which means ‘less than’). As the Rome review, an inclusive collaboratively produced review, alluded to.

The generic term recognises the natural variations in the human brain, not limited to ASD or ADHD, but it does highlight that individuals with ASD, ADHD, and other neurodivergent profiles experience and process the world – and the legal process – differently. The important thing to reflect on is that each condition is a continuum, very variable as an individual’s evolve and grow, often with some abilities and capabilities and capacities advancing and others detracting.

For police officers, court staff, and the judiciary whether children, young people or adults, understanding of these differences, is not just a matter of disability awareness: it is fundamental requirement for ensuring human rights and procedural fairness.

When we discuss ASD, ADHD and neurodiversity within legal frameworks, we are often looking at how cognitive processing (concurrent with a vulnerable nervous system) affects a person’s ability to navigate what one can term high-stake environments. The justice system is built on specific neuro-normative social norms: maintaining eye contact, responding quickly to questions, often following complex instructions or calculated loaded statements leading into a question. This places additional pressure on neurodivergent Service Users, often amplifying emotions and processing challenges whilst increasing the impact of their ability to regulate their emotions under extreme stress. For a neurodivergent person, ableist expectations can present challenges which can be physically and or cognitively impossible to meet. Without an Identifying process, like for example ‘1000 Times Better’ that looks beyond surface-level behaviour, the system inadvertently marginalises individuals for the way their brains are wired.

At AISee, we operate on the principle that many of the perceived “problematic” behaviours observed in custody or court rooms are manifestations and expressions of unmet need, whether that be a youth who appears “disrespectful “ or an adult who become agitated, both can be due to their processing and or environmental and sensory issues, these are communication signals. By Advocating for a deeper understanding of these signals, we can move away from majority culture reactions and towards Informed Solutions.

Why is behavior considered a form of communication?

In the field of learning disability, autism and neurodivergence (LDAN), it is accepted that “behaviour is communication.” For individuals with ASD or ADHD, traditional expressive or spoken language can become impaired during times of heightened stress or anxiety. On occasions when a neurodivergent person is unable to articulate their distress or confusion, behavioural expressions can take over. A person with ADHD might pace or fidget excessively not out of defiance, but to regulate their nervous system (known as self-stimulating, or stimming), so they can focus on what is being said. Conversely a person with ASD might dissociate, shut down or become non-speaking (selective mutism) when overwhelmed by the rapid-fire questioning of cross-examination. 

 If the justice system misattributes such behaviours as aggressive, lack of remorse or non-compliance, it can trigger cycles of unintentional prejudices. This lack of understanding often stems from lack of Educating professionals on the lived and living expression of neurodivergence. For example, a facial expression (flat affect) could be misconstrued by a jury as coldness, when it can be a threat response often observed within neurodivergent people’s profile expression in high stress situations. When we stop asking “Is this person being difficult?” and start asking “What is the function and intent being expressed by this behaviour?” We begin the process of Solutionising for better outcomes.

How does processing speed affect legal interviews?

Another significant and systemic barrier for neurodivergent individuals in the justice system is the assumptions made about discrepancy in processing speed. Many people with ASD and ADHD require additional times to process verbal information, translate it into meaning, and formulate a response this is referred to as ‘bottom-up’ processing, as contrasted with neurotypical ‘top-down’ processing styles. In standard police interviews the pace is often rapid. Questions are layered, and silences are often seen as suspicious or indicative of evasiveness or even guilt. 

For a person with a processing challenge, this unmodified set and setting is a cognitive minefield. An individual may still be processing the first question while the interviewer is already on the third. This can lead to inconsistent or incoherent answers, which can be (wrongly) ascribed and recorded as “lies” by investigators. To mitigate this, professionals should strive to make reasonable adjustments in interviewing styles and environmental contexts in order to adopt “one question at a time” approach and allow for significant time to enable the respondent to process and provide accurate answers. 

Mens Rea ('the guilty mind') Key Added Challenges

Across the four separate nations of United Kingdom, neurodivergence is not and should not be ‘singled out excuse’ for criminal behaviour, but should provide an opportunity, as part of a fair system, a telescopic opportunity accessing culpability. Our collective legal systems rely on ‘neurotypical’ standards and interpretations when it comes to intent. Therefore, neurological differences like autism, ADHD and other neurodevelopmental conditions does alter how individuals process information and makes determining ‘Mens Rea’ more challenging across key aspects highlighted throughout this piece.

In Consideration

In consideration, justice, tribunal and children’s hearing professionals should treat neurodivergent behaviour as meaningful communication often expressing distress rather than immediate evidence of defiance, evasiveness, aggression, or lack of remorse. In practical terms, this means adopting a needs-led approach at the earliest possible stage, rather than waiting for a formal diagnosis, (if not already diagnosed) before support is considered. Police officers, solicitors, social workers, court staff, sheriffs, etc. and other decision makers should be encouraged to ask what barriers may be present, what communication needs exist, and what reasonable adjustments are required for the person to participate effectively and fairly. This should include adapted settings to reduce sensory overwhelm, the use of plain language, one question at a time, additional processing time, regular breaks, reduced sensory pressures, access to advocacy and or appropriate adult support and careful consideration of whether an intermediary, communication support of other special measures may be needed.

Professionals should remain mindful of over-reliance on neurotypical assumptions when interpreting presentation. Limited eye contact, flat affect, delayed responses, fidgeting, pacing, emotional dysregulation, shutdown, selective non-speaking, or apparent inconsistency should not be conflated with dishonesty, evasiveness or disengagement.   

Instead, these behaviours should prompt further curiosity, reflective questioning and, where appropriate specialist input. Interview planning should be adjusted so that questions are structured, unambiguous and non-leading: complex information should be granulated down into smaller parts; and visual prompts and or written summaries should be considered where they assist understanding without influencing the content of evidence.   

At a systems level, justice organisations at all levels should embed neurodivergent awareness into continued professional development, custody procedures, court preparations report writing and judicial decision making. Screening and identification processes should be proportionate, respectful and focussed on support rather than labelling. Adjustments should be recorded clearly, shared appropriately across agencies and reviewed as the persons needs change. By identifying, educating, advocating and solutionising in practice, they justice system can move beyond individual goodwill and towards a consistent, lawful, trauma-informed and genuinely inclusive model of procedural fairness. 

In Conclusion

We believe by applying the learning from and considerations within this blog, practice would improve and ultimately reduce both risk of unintentional bias and risk of potential miscarriages of justices. 

Thom Kirkwood                                    Ramon Hutchingson                                           Bill Colley

Director/Advocating                            Coordinator                                                           President

Inclusion Specialist                              Autism Resource Coordination Hub                 Scottish ADHD Coalition

In the first instance contact enquiries@aiseecollaborative.co.uk