Dr Tom Smith, Associate Professor in Law, UWE Bristol
Introduction
Good lawyering is fundamental to the protection of vulnerable individuals accused of criminal offences – but causes one to question what ‘good’ lawyering is in this context. One method of assessing this would be consideration of how effectively lawyers discharge their professional duties for such clients. Whilst these principles can provide us with a general indication of what is ‘good’, they remain amorphous and will necessarily vary depending on each client and their needs. For vulnerable individuals, the concept of ‘good’ lawyering should require the ability to adapt to the client ‘as they are’ for professional duties to have practical meaning. In order to explore this conceptual understanding of good lawyering, this post will consider how criminal lawyers represent the neurodivergent accused – that is, suspects and defendants whose neurodevelopmental profile is atypical (for example, an autistic defendant). It will argue that defence lawyers must adapt to the particular needs of neurodivergent clients and that, without doing so, they cannot effectively discharge their professional duties and therefore be ‘good’ lawyers. The post will review neurodivergence in the context of criminal justice; markers of ‘good’ lawyering; the challenges for lawyers representing the neurodivergent accused; and consider how this might be addressed.
1 Neurodivergence and the Criminal Justice System
Neurodiversity, as a concept, is a relatively new one and remains without a concrete definition (see Casanova and Widman, 2021). Divergent profiles are generally associated with a range of medical conditions, with the most well recognised examples being autism, ADHD, Dyslexia; and Acquired/Traumatic Brain Injury (A/TBI) (APA, 2013). What classifies as neurodivergence is an open and expanding category; generally, individuals who are neurodivergent have differences in relation to social communication and language; learning, memory and executive function; sensory processing; motor skills and coordination; and attention and mood regulation. Current evidence suggests that neurodivergent individuals are regularly drawn into criminal justice processes (as both accused persons and victims of crime) (CJJI, 2021). The features of neurodivergence can present significant barriers to effective and quality engagement with criminal justice processes, since they are likely to experience difficulties with social communication, and cognitive and sensory processing. Criminal defence lawyers are a vital part of either mitigating or aggravating these issues; they arguably have professional ethical duties to ensure that neurodivergent clients are not disadvantaged as a result of their differences.
2 ‘Good’ Lawyering: an elusive concept
‘Good’ lawyering is a difficult concept to definitively pin down; some common sources can help identify widely recognised markers of good lawyering – that is, basic, broadly defined traits which reflect what we ideally expect from lawyers representing clients in legal proceedings, including professional ethical codes and guides, drawn from both international and national contexts (see, for example, UN, 1990; IBA, 2018; CCBE, 2019; ABA, 2020; BSB, 2020). Common themes, or ‘markers’, of good lawyering include the expectation that lawyers protect and advance the best interests of the individuals they represent (BSB, 2020, Core Duty 2; ABA 2020, Paragraph 2; UN, 1990, Principle 13). They must do so as a priority but ensure that the interests of justice generally are served, and that representing a client does not diminish from this wider duty (CCBE, 2019, Article 1.1; BSB, 2020, Core Duty 1). Lawyers must not discriminate (directly or indirectly) against those they represent on any basis, including their personal characteristics (IBA, 2018, Principle 2; BSB, 2020, Conduct Rule 12). All of the above must be done in a competent and diligent manner, with practice founded on up-to-date professional skills and relevant knowledge acquired through education and training (CCBE, 2019, Article 5.8; UN, 1990, Principle 9). Crucially, codes place particular emphasis on the importance of communication and use of additional support for vulnerable clients when necessary, recognising the challenges for such clients in the context of legal processes (ABA, 2020, Principle 1.14; CCBE 2019, Article 3.1.2; BSB, 2020, Guidance Note 41) . These principles provide a sound basis for understanding what a good lawyer is, but as amorphous concepts they must be adapted to apply in different contexts with different clients. For neurodivergent individuals, such principles arguably demand a more specialised approach, which is carefully adapted to the needs of those being represented.
3 Challenges for lawyers representing the neurodivergent accused
Existing research indicates that criminal justice systems are, generally, failing to adequately recognise and support neurodivergent individuals (CJJI, 2021). Studies suggest lawyers and judges have limited training and knowledge, and that neurodivergent individuals feel largely unsatisfied and misunderstood by lawyers (Maras et al, 2017; Slavny-Cross et al, 2022). It has been argued that there is a ‘need for lawyers to become adept at asking appropriate questions and identifying signs’ of neurodivergence, as they are likely ‘missing the signs’ (Allely and Cooper, 2017).
Basic duties like providing advice to and receiving instructions from the accused are contingent on lawyers quickly understanding and adapting to a client’s communication style. Lawyers should be alive to potential challenges for neurodivergent individuals, as they are more likely to have specific needs in relation language and communication; longer cognitive processing time; memory; and focus and attention (CJJI, 2021). All can affect the ability to comprehend and communicate with lawyers and vice versa, which (without adaptation) hampers the exchange of crucial information; effective advice; and clarity of instructions. Lawyers should ensure that a neurodivergent individual can actively comprehend and autonomously participate in proceedings. Language used and methods of questioning may be difficult to understand or engage with (see, for example, Crane 2016). There may be too much or too little sensory input, leading to distraction or distress (Holloway et al, 2022). The pace of proceedings and pressure of the circumstances may be overwhelming (for an example, see R v RT and Stuchfield [2020] EWCA Crim 155). If the lawyer fails to intervene to mitigate these negative consequences, they are arguably not acting in the accused’s best interests.
Representing a neurodivergent defendant in custody or in court requires a lawyer to understand who their client is and how they might be perceived by others. Protecting their best interests involves ensuring that this does not unfairly disadvantage them. This is particularly important in relation to the language, demeanour, and behaviour of neurodivergent individuals, who may ‘present’ (that is, display outward signs of their neurodivergence) in different ways (Yates and Le Couteur, 2016). The stress and abnormality of custody or court settings per se may exacerbate presentation; or lead to behaviour that ‘camouflages’ actual levels of understanding and therefore vulnerability (Lai et al, 2017). As presentation may deviate from the expectations of police, judges, and juries as to appropriate language and behaviour, the accused may be perceived negatively with a consequential impact on treatment and outcomes (Allely and Cooper, 2017; Crane et al, 2020; Lim et al, 2021). Lawyers must therefore ensure that atypical but unavoidable demeanour, behaviour or language is not misjudged and penalised; but understood as an expression of neurodivergence; may be difficult to manage; or may represent a coping strategy.
4 How lawyers might better adapt to neurodivergence
Current evidence suggests that general screening for neurodivergence in the criminal justice system is highly fragmented and incoherent, with patches of good practice contrasting with total absence (CJJI, 2021). As such, the responsibility to informally ‘screen’ currently falls on individual practitioners, including lawyers, to be alive to the possibility of neurodivergence when working with individuals. This requires lawyers to develop greater awareness and understanding of different types of neurodivergence; how this may present itself; and how to adapt their approach. Suggestions for facilitating this might include mandatory training for lawyers on neurodivergence; the provision of basic, accessible screening tools (for some examples, see CJJI, 2021; City of London Police, 2023); and access to or signposting for referrals and additional assessment of individuals (for example, via Liaision and Diversion Services (NHS, 2023)).
Lawyers must be able to adapt to a neurodivergent defendant’s needs, both in terms of their personal interactions; and in representing them to others. With a defendant’s consent, lawyers could ensure that appropriate people (such as judges, tribunals, jurors) are aware of an individual’s neurodivergence; how it presents; and what this means. They should seek, where appropriate, more time for a defendant to process and assess questions or requirements in proceedings (though challenges exist in this regard – see Howard, 2020). They should ensure that all parties to proceedings are clear on the best approach to engaging with a neurodivergent individual in court. Lawyers should, when appropriate and possible within relevant legislative frameworks, request adjustments to standard court proceedings and environments (The Advocate’s Gateway, 2023; Clasby et al, 2022).
Lawyers should consider whether accessing external support and advice (such as expert evidence, intermediaries, or family supporters) would be helpful. Expert evidence may (subject to admissibility) be particularly helpful in ensuring that all parties – particularly judicial figures and juries – fully understand an individual’s neurodivergence and assess it appropriately when weighing up a verdict or considering sentence (Allely, 2022). More generally, lawyers should – when appropriate – be proactive in intervening or challenging to enable neurodivergent individuals to manage proceedings. Arguably, most of these adaptations are simple and low-cost; but implementing them does depend on awareness, knowledge, communication, and collaboration between lawyers and others (particularly the judiciary).
Conclusion
Traditional markers of ‘good’ lawyering provide us with a broad guide for understanding what lawyers should be doing. In reality, being a ‘good’ lawyer arguably requires a much more nuanced, adaptable and specialised approach to engaging with and representing criminal clients. In relation to neurodivergent individuals, achieving this may be particularly challenging for the reasons discussed. Specific concerns have been highlighted in relation to awareness, knowledge, identification and adaptation. If lawyers are unaware; ignorant; and unable (or unwilling) to identify and adapt to neurodivergent defendants, they are likely to provide an inadequate service and, as a consequence, fit any reasonable definition of a ‘poor’ lawyer. These issues can be ameliorated with very achievable adjustments in approach – sometimes using tools and procedures that already exist. Based on the emerging evidence about the general status of neurodivergent individuals in criminal justice, this must happen soon.
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