Autism, Asperger syndrome and the Criminal Justice System

1. Autism, Asperger syndrome and the Criminal Justice System

2. Unfit to Plead Statistics 2009 Primary diagnosis Frequency Percent Schizophrenia (& associated) 104 31.6 mental impairment 105 31.9 Dementia 14 4.3 psychosis and mental impairment 22 6.7 brain damage 22 6.7 depression/anxiety 15 4.6 unspecified psychosis 2 .6 hypomania 4 1.2 deafness/communication difficulties 4 1.2 drug induced psychosis 2 .6 Korsakoff's psychosis 1 .3 Post Traumatic Stress Disorder 1 .3 Asperger syndrome 1 .3 Tourette's syndrome 1 .3 Attention Deficit/HyperactivityDisorder1 .3 Catatonic state 1 .3 not known 29 8.8 Total 329 100.0

3. Outcomes from Unfit to Plead Disposals Frequency Percent none given* 31 9.4 Hospital w restriction no limit of time 120 36.5 Hospital restriction limit of time 8 2.4 admission order 79 24.0 guardianship order 20 6.1 supervision order - 2 years 55 16.7 Supervision order - under 2 years 4 1.2 absolute discharge 12 3.6 Total 329 100.0

4. Capacity Issues in Criminal Proceedings Fitness to plead (Youth Court and Crown Court) and disposal(s) Effective participation and “remedies” (SC v UK, TP v West London Youth Court) Doli incapax (The Crime & Disorder Act 1998, s 34 abolished the rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence. The age of criminal responsibility is 10)

5. Different Areas of Law • Civil Proceedings capacity test based on proportionality – should this be mirrored in criminal proceedings? • Civil test (Mental Health Act 2007) obviates the need for medical practitioner– ‘responsible clinician’ • Gillickcompetency- in, for example, family proceedings a young person must be assessed to see if they are competent to make their own decisions. In criminal jurisdiction as soon as they turn 10 they are as competent as an adult to instruct and make decisions.

6. Criminal Proceedings • Youth Court/Magistrates Court – s.37(2) Mental Health Act 1983 the court is satisfied, on the written or oral evidence two registered medical practitioners • Crown Court - the court shall not make a determination under s 4 (5) CPIA 1964 “except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved” (i.e. s 12 approved psychiatrist).

7. Magistrates / Youth Court Summary trial: As per Varma [2009] EWHC 836 (Admin) • It is well known that under the Domestic Violence Crimes and Victims Act 2004 new procedures apply when a defendant facing trial in the Crown Court claims that he is unfit to plead. These procedures do not apply in the Magistrates' Court. However, much the same effect can be reached by the application of section 37 of the Mental Health Act 1983, the relevant provisions of which read as follows. Subsection 1

8. Magistrates / Youth Court Mental Health Act 1983 s. 37(3):"Where a person is charged before a Magistrates' court with any act or omission as an offence and the court would have power, on convicting him of offence to make a hospital or guardianship order under subsection (1) above in his case as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act or made the omission charged the court may, if it thinks fit, make such an order without convicting him."

9. Magistrates / Youth Court Disposal Disposal the court may by order authorise his admission to and its detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local services authority as may be so specified. NB – no absolute discharge in the Youth/Magistrates Court NB – Guardianship is not available for those under 16. Therefore no community disposal available.

10. Fitness to Plead Crown Court • Two stage procedure. • Stage 1: Is the defendant fit to plead, decided by a judge alone, based on the opinion of the experts. Court decides “on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved” (i.e. one must be a s 12 approved psychiatrist). • Stage 2 - Trial of an issue: If found to be unfit, there is a (jury) trial of an issue under section 4A(2) of the 1964 Act as to whether the accused "did the act or made the omission charged as the offence", "the act" for this purpose refers to the actusreus of the offence and not to the mensrea; defendant does not give evidence.

11. Fitness to Plead Crown Court The Test • Is the defendant suffering from a “disability”? R v Pritchard (1836) 7 C&P 303: classic test but now: • Ability to understand the charge(s) • Ability to decide whether to plead guilty or not guilty • Ability to follow the course of proceedings • Ability to instruct a lawyer • Ability to challenge a juror • Ability to give evidence in his/her own defence • A court can find unfitness to plead if the defence could establish on a balance of probabilities any one of the above six things that was beyond the defendant's capabilities R vM (John)[2003] EWCA Crim 3452.

12. Fitness to Plead in Crown Court • Options: There are now three forms of disposal • 1. A hospital order (with or without restrictions) now identical to one made under the MHA 1983 (but where D is charged with murder and the court has power to make such an order it must impose restrictions). • 2. A supervision order. • 3. An absolute discharge

13. Effective Participation • European Court of Human Rights: It is essential that a child charged with a criminal offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (T v United Kingdom; V v United Kingdom [2000] All ER 1024, 30 EHHR121, 7BHRC 659, [2000] Crim LR 187, ECtHR).

14. Effective Participation SC v UK (2005) 40 EHRR 10, it was said that whilst Article 6(1) of the ECHR does not require that a child on trial for a criminal offence should understand or be capable of understanding every point of law or evidential detail, "effective participation" presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake, including the significance of any penalty which may be imposed; if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, the accused should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, to point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence;

15. Special Measures/ Intermediaries Not in legislation for Defendants and s.104 Coroners and Justice Act unlikely to be implemented. Still have common law power – see C v SevenoaksYouth Court [2009] EWHC 3088 paragraph 33 Where the accused is aged under 18 when the application is made, the condition is that the accused’s ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accused’s level of intellectual ability or social functioning. 

16. Intermediaries Register of intermediaries controlled by the Ministry of Justice. Registered intermediaries are; selected, trained (5 days), examined, CRB checked, regulated by a code of conduct, have a formal complaints procedure. Registered intermediary v. unregistered intermediary. Is there ever a situation where an unregistered intermediary is best? Perhaps with someone on the Autism Spectrum Code of Practice and Ethics for Intermediaries http://www.ssiacymru.org.uk/media/pdf/2/9/Code_of_Practice_for_Intermediaries.pdf

17. Special Measures/ Live Link YJCEA1999 s.33a-c; – Police and Justice Act 2006 Came into force on 15th January 2007 SI2006 No.3364 The court, may on the application of the accused (if a youth), give a live link direction – only if his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning and in the interests of justice and live link will allow him to participate more effectively For adult defendants must have a mental disorder (within meaning of Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social functioning. To ensure effective participation a court can order that a defendant be present for his trial via live link- not just giving of evidence.R v. Ukpabio [2007] EWCA Crim 2108.

18. Being an Expert Ask for clear questions in letter of instruction Ask lawyer to state things that they do not want discussed Discuss the offence in hypothetical with the defendant Unethical to exclude parts afterwards but can make amendments – speak to lawyer before final report prepared. Clearly state DRAFT. Legal aid rates usually £100 per hour £40 for travel.

19. Typical Requests Fitness to Plead (set out criteria) Effective Participation – Grisso Suggestibility and Compliance – Gudjonsson Suggestibility – likelihood of yielding to investigative pressure. Is there a case for the interview to be excluded? Compliance – likelihood of acting under duress Vulnerability to Custodial Setting Specific issues to client

20. Further Reading Law Commission review of Fitness to Plead http://www.justice.gov.uk/lawcommission/docs/cp197_Unfitness_to_Plead_consultation.pdf National Autistic Society guide to criminal justice system http://www.autism.org.uk/cjs Walls [2011] EWCA Crim 443 Varma [2009] EWHC 836 (Admin) C v Sevenoaks Youth Court : [2009] EWHC 3088 (Admin)