Disadvantage, Neurodivergence and Disability

Melanie Jameson (Dyslexia Consultancy Malvern & Prisoner Learning Alliance)

Introduction

Any exploration of the vulnerable accused in the criminal justice system (CJS) should consider whether the majority of suspects, defendants and prisoners are vulnerable, often in multiple ways. In recent years a growing understanding of the nature of adverse childhood experiences (Hughes et al in The Lancet, 2017) and the ensuing maladaptive coping strategies that these give rise to, are now more widely discussed and have started to inform various initiatives. However, we still lack a coherent policy across all sectors of the CJS that takes this fundamental issue into account.

Another layer of difficulty arises when there are signs of dyslexia, dyspraxia, attention deficit hyperactivity disorder (ADHD), dyscalculia and/or autism – a family of overlapping conditions which are overrepresented in the CJS, according to government-funded research by the former dyslexia Institute (Rack, 2005). The report concluded that almost 20% of prisoners sampled across a range of establishments were affected to the extent that their learning and employment prospects were compromised. One can assume that this proportion also relates to police suspects, court defendants, prisoners and probation caseloads.

Terminology

A note on terminology, which has always been problematic, from the use of Specific Learning Difficulties for those who are no longer learning, to the prison service’s adoption of Learning Difficulties and/or Learning Disabilities, shortened to ‘LD/LD’ or ‘LDD’. This confuses people with an intellectual impairment with those with ‘specific’ areas of difficulty, whose intelligence is unaffected – but often under-perform educationally. The U.S. Asperger community coined ‘neurodiverse’ to describe themselves, in contrast to the general ‘neurotypical’ population. Experts agree that ‘neurodivergence’ is a more accurate term to indicate this marked divergence from more common ways of functioning (Walker 2020) – in either case the initials ND are now widely used.

The scope of this blog post is a grouping within the wider ND umbrella: the ‘specific’ difficulties/differences cluster of dyslexia, dyspraxia, ADHD, dyscalculia and high functioning autism. What are the challenges arising out these widespread conditions? They break down into three main areas: poor information processing (written, oral, auditory); a limited working memory and heightened reaction to stress. A short attention span and high levels of distractibility are also implicated.

Research

Research in the U.S. (Klasen, 1972) which explored whether there is a ‘dyslexic personality’ pinpointed a high level of anxiety and frustration as consistently differentiating the dyslexic and control groups. Further investigations reported an ND profile as someone who is very wary of situations where his/her inadequacies will be shown up yet again (Hales, 1990). By adulthood most have developed various coping strategies, diverting some of their energy into operating them – but thereby leaving themselves depleted when dealing with situations that show up their areas of weakness.

Foremost are situations which place heavy demands on language skills and working memory (Jameson in Miles, 2004) such as formal questioning, whether in police custody, court, adjudication procedures or parole hearings. If one has initially misunderstood spoken information or only partly retained it, the communication that follows is inevitably impaired. In addition, struggles with self-expression, word retrieval or/and a tendency to use the wrong word – the latter can be particularly misleading – cause the stress levels of the individual to rise while the professionals involved can experience growing frustration.

A pattern of difficulties

Involvement in the CJS often entails official documentation. Reading accuracy, retaining what you read, grasping subtleties of language and producing an appropriate written response can all be problematic. Reading issues may be further exacerbated by visual stress, a visual processing/perceptual difficulty which forms part of what Miles (1993) refers to as the ‘pattern of difficulties’. Typical symptoms when reading include the blurring or shifting of print, a ‘glare’ from white paper which obscures the text and, most commonly, continually losing the place. It is now well established that certain types of visual dysfunction, often missed in routine eye tests, can be regarded as visual correlates of dyslexia and dyspraxia (Evans, 2001). Some people report sensitivity to bright lights, leading to discomfort and headaches, especially under fluorescent lighting which is common in custody and court settings.

Working memory, in this context the ability to hold on to information while formulating a response, is also sorely taxed in interactions with the justice system. In addition, concentration must be maintained and distractions blocked. All are typical areas of difficulty. A project initiated by the former Greater Manchester Probation Service explored whether dyslexia might lead to problems fulfilling the requirements of a probation order. We found that this was indeed the case, and produced a resource that itemised ‘Points of Impact’, ‘Risky Stages’ and ‘Appropriate Strategies’ (Jameson, 2000).

Stress is particularly debilitating in two key ways: firstly, the individual’s particular ND problems are exacerbated and secondly, their coping strategies collapse (Jameson in Miles, 2004). Physical symptoms include queasiness, faintness, hyperventilation, rapid heartbeat, and taking flight.

Disadvantage in the courts [1]

In the role of expert witness, I have observed the vulnerability of ND defendants, leading me to push for judicial guidance, and better support across the CJS. Two examples illustrate this vulnerability. CJ (dyslexic with ADHD) was caught speeding and was asked to blow into a breathalyser but found himself physically unable to do so. He had now committed the additional offense of obstructing the police. Strongly advised to plead guilty, CJ reluctantly accepted that he would gain a police record. After we discussed the incident, it became clear that there had been no wilful obstruction on CJ’s part; on the contrary, he had been struggling to comply with the officer’s request.

CJ’s performance in court demonstrated how a normally garrulous individual can be rendered almost speechless by the experience. A slight delay between hearing something and understanding it led to long pauses. Sometimes CJ missed the point, stumbled over words or produced spoonerisms. Being aware that he was making a poor impression, his stress worsened until he was barely audible. Having a short attention span, CJ found it increasingly difficult to concentrate, soon reaching complete mental overload. Afterwards, although CJ won his case (being just charged with speeding) his only comment was: “I went completely to pot there!”

Disadvantage in the courts [2]

In contrast, MT, seemed unable to express himself without striding about the room (despite requests to stay still) using his whole body to help the words out. His extraneous arm movements were typical of dyspraxia, all the characteristics of which applied to him: poor posture, disorientation, inability to perform tasks at speed, weak visuo-spatial skills and poor coordination. There was no problem with volume in MT’s case, in fact his voice was overloud and his discourse rambling and often inconsequential as though he were trying to avoid the question. Compound questions and an oblique line of questioning made things worse. Being unable to use words with any precision, MT struggled to express himself, eventually weeping with frustration. He was unable to make sense of the notes he had prepared – the print became blurry and indistinct due to his Visual Stress – and the bright lighting was giving him a headache.

My expert witness submission included my finding that MT was unable to pass the standard test of sobriety for drivers: he was incapable, under any circumstances, of bringing his finger from a distance in front of him to touch his nose or of walking along a thin line, placing one foot in front of the other(Jameson in Law Bulletin, 2001).

Conclusion

An unfortunate outcome of many ND behaviours is that they can make a bad situation worse: inconsistent responses undermine credibility, hesitations and misunderstandings seem evasive, an overloud unmodulated voice sounds aggressive. Restlessness, fidgeting and loss of attention appear ‘unengaged’. I have observed these behaviours and the adverse reactions of professionals on a number of occasions.

For these reasons I regard the ND population as ‘vulnerable’ in all criminal justice interactions. Many would fit the Equality Act 2010 (Government Equalities Office, 2015) definition of disability: ‘a person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities’. Support in police custody could come in the form of an Appropriate Adult, or in more severe cases, a Registered Intermediary.

The issue of entitlement to reasonable adjustments is especially pertinent in court hearings. In 2008 I was commissioned to remedy an omission in the judicial Equal Treatment Bench Book (Judicial College, 2023) and inserted each ‘specific’ condition into the alphabetical Glossary of Impairments and reasonable adjustments.In practice, official confirmation is often requested by the courts, such as a diagnostic assessment. In addition, a useful document can be prepared to record the impact of the individual’s disability, along with appropriate accommodations (such as breaks). A template is available at Accommodating SpLDs in hearings at dyslexia-malvern.co.uk/goodpractice. However, many people with dyslexia, dyspraxia etc would not regard themselves as ‘disabled’ – still more are likely to be unaware that this is the root of their difficulties.

We currently await the outcome of the Joint Inspectorates’ investigation into ND across the CJS. Despite an Action Plan (Ministry of Justice, 2023) and the roll out of ND Managers in prisons, implementation is slow. Would it be better just to recognise that many Accused are vulnerable and simply ask, as did Judge Ashton, former Chair of the Equal Treatment Advisory Committee: “What can be done to facilitate reliable evidence?”

References

Rack, J (2005) The Incidence of Hidden Disabilities in the Prison Population, Dyslexia Institute

Equal Treatment Bench Book (2023) Appendix B:Disability Glossary: Impairments and reasonable adjustments p385ff  https:www.judiciary.uk/wp-content/uploads/2023/06/Equal-Treatment-Bench-Book-April-2023-revision.pdf

Government Equalities Office (2015) Equality Act 2010: Guidance. Available at: https://www.gov.uk/guidance/equality-act-2010-guidance

Evans, BJW (2001) Dyslexia and Vision Whurr Publishers

Hales, GW (1990) Personality Aspects of Dyslexia: Meeting Points in Dyslexia British Dyslexia Association

Hughes et al (2017) in The Lancet: The effect of multiple adverse childhood experiences on health: a systematic review and meta-analysis

https://doi.org/10.1016/S2468-2667(17)30118-4

Jameson, M (2000) Probation Information Sheets http://www.dyslexia-malvern.co.uk/docs/justice/GMPS information sheets.pdf

Jameson, M in Law Bulletin, Vol 13, Number 2, pp30 & 31 (2001) Implications of Dyslexic Difficulties

Jameson, M in Miles TR (2004) Dyslexia and Stress, 2^nd ed. Chapter 6 Dyslexia and the Law Whurr Publishers

Judicial College (2023) Equal Treatment Bench Book. Available at: https://www.judiciary.uk/about-the-judiciary/diversity/equal-treatment-bench-book/.

Klasen, E (1972) The Syndrome of Specific Dyslexia  Lancaster (USA) Medical and Technical Publishing Company

Miles, TR (1993) Dyslexia: The Pattern of Difficulties 2^nd ed.  Whurr Publishers

Ministry of Justice (2023) A Response to the Criminal Justice Joint Inspection:

Neurodiversity in the Criminal Justice System, A Review of Evidence. Available at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1131185/MoJ_Neurodiversity_Action_Plan_Six_Month_Final_edit_pdf

Walker, N (2020) https://neuroqueer.com/neurodiversity-terms-and-definitions/

Free resources on ND in the CJS in http://www.dyslexia-malvern.co.uk/goodpractice