Charlotte Newbold, PGR student at University of Nottingham
Introduction
An Autism Spectrum Disorder (ASD) diagnosis is not often identified early in the criminal justice process. There is a strong background of research which demonstrates cross-institutional barriers to identifying, diagnosing, and fairly treating autistic people between health and social care, the police and the courts system. This is particularly true in the case of individuals with ‘high functioning autism’, who may not portray typical signs of engagement or communicative difficulty, yet still struggle to meet the expectations of the criminal process. Some may even fail to participate at all.[1]
Autistic defendants are therefore presented with barriers, in part, due to their presentation at trial. ‘High functioning autism’ or better described as ‘high masking autism’ suggests high levels of social integration and a perception of lower support needs. This presentation of ASD is often misunderstood and difficulties in communication may be read as indications of increased culpability or guilt.[2]
This is the context in which we examine the use of special measures for autistic defendants at trial in England and Wales. These measures, initially introduced for vulnerable witnesses via the Youth Justice and Criminal Evidence Act 1999, have been sporadically developed to include the provision of live link capabilities and intermediaries for defendants. While there have been some bleak insights into how this has played out in practice, there is scope to examine some of the normative justifications for these support measures in light of the nature of communication at criminal trials. By interrogating the relationship between communication and assigning responsibility at trial, from accusation through to sentencing, we can see tension between these concepts and the vulnerability that special measures intend to support.
Aims and Principles of the Criminal Process
The ability of the criminal trial to uncover the truth and facts of an accusation is limited. This limitation is academic and context-specific, but gives rise to a need for the trial process to be legitimate. Part of the truth-seeking, or epistemic, aims of the criminal trial is to ensure that this uncertainty is minimised as much as possible, by ensuring that the facts of the case are fairly and effectively communicated and interpreted. Due process measures, such as special measures, support the legitimacy of the trial in this way.
Retributive aims, which provide that the guilty defendant should be punished according to their desert, are argued to be part of this communicative endeavor between the public, the victim, and the accused. Individuals are punished as a vindication of perceived wrongdoing which should speak accurately to the gravity of what they have done, and their culpability in doing it. If satisfying the truth of the matter fails, then we cannot say with accuracy that the individual deserves the punishment they receive. In order to overcome epistemic uncertainty, we should be clear about what judgements we are able to make based on the evidence provided.
To this end, measures focused on achieving ‘best evidence’ help witnesses to convey their account to the jury in the most coherent and cognisable way possible. For the defendant, these measures would provide the opportunity to express cogently their account where they would otherwise be unable to. This would be particularly important for the interpretation of mindset evidence,[3] and making reasonable inferences about intention.
By holding individuals publicly to account for their alleged wrongdoing, the criminal trial gives the opportunity for communication between the defendant and affected parties.[4] A power asymmetry arises between the autistic defendant and the community, where their account is scrutinised. We can view this asymmetrical relationship between the community and the accused through the lens of Fineman’s theory of vulnerability,[5] which suggests that all individuals can experience vulnerability, and certain relationships in life and in law can be inevitably unbalanced. This vulnerability can either be due to, or create precarity because of, relationship inequalities. This theory highlights some of the normative value of special measures. Not only are they instrumentally valuable to the trial’s truth-seeking aims, but special measures also facilitate testimonial justice. By supporting the defendant’s participation in trial, these measures are aimed at addressing the relationship imbalance, improving their treatment as epistemic equals in the adversarial trial.
‘Effective’ Participation in the Criminal Trial
The right to effective participation in a fair and public hearing reflects this relationship between the principles: truth-seeking, equal treatment and desert. Effective participation is a defendants’ right under Article 6 of the European Convention on Human Rights which is qualified, such that reasonable adjustments may be made to allow the defendants to understand and participate in the practical elements of the trial. However, these rights are not focused on a dialogic communication, but instead on whether defendants have a practical foothold on the processes and questions put before them. This is despite the fact that defendants deemed fit to plead, and able to assume full responsibility for their actions, may still be unable to portray themselves in a way which accurately conveys their account or mindset to a third party.
Being viewed as less credible, due to a stereotype or prejudice, may be termed a ‘credibility deficit’, creating a testimonial injustice: A person’s testimony is distrusted for unfair reasons.[6] When autistic defendants display ‘atypical’ behaviours which will affect the judge and jury’s perception of their culpability or responsiveness to blame, this is arguably part of the process. The way that the defendant responds to the accusation is important, and is often used as part of our best interpretation of their credibility and culpability. While there have been examples of jury directions addressing the unexpected behaviours of autistic defendants, the effect of these directions is unclear.[7] Studies also suggest that the overall presentation of autistic individuals, not just individual behaviours, have some impact on their perceived credibility, but this is shown to be both positive and negative depending on whether a diagnosis is revealed.[8] These may present examples of testimonial injustice to be explored further.
It is not necessarily the case that special measures will ameliorate a credibility deficit, either. Before the trial, where measures are unavailable, autistic defendants may struggle with recalling events, or appear unhelpful during questioning, thus building early inconsistencies in their account. Further, the presence of an intermediary may be used to suggest that counsel’s interrogation of the defendant’s account was not as robust or harsh as it ordinarily would have been,[9] inviting an appraisal on whether the defendant is sufficiently held to account.
These issues raise evidentiary concerns which may have real impacts on how defendants are perceived post-conviction, at the sentencing stage. To account for the cascade effect of failing to account for the impact of ASD traits on epistemic and retributive aims of the trial, we may further refer to a ‘desert deficit’.This is because sentencing decisions, when accounting for this interpretation of the defendant’s behaviour, may also fail to accurately inform the defendant’s degree of deservingness. Improving practical participation in trial procedure will not, in itself, undo this mounting asymmetry outside of the defendants’ locus of control.
Scope for Theoretical Development
Deficits of both credibility and desert may pose difficulties for legitimately asserting autistic defendants’ responsibility. This means, while autistic defendants may well be responsible for what they are accused of, the account of their responsibility suffers from a greater degree of uncertainty. While special measures address the practical and procedural elements of engagement in trial, there is still an ongoing tension between the expectation for defendants to take full control of their own account; prior, during, and after trial; and their vulnerability. While autistic defendants who show no obvious signs of communication or understanding difficulties in trial may be able to participate in practice, their ability to respond ‘appropriately’ to an accusation remains unsupported.
To this end, there is scope to further normatively probe the current approaches to effective participation. Would it be justifiable and practicable to reframe special measures for defendants, such that they more often directly address the jury’s reception of defendants’ testimony? In other words, rather than simply supporting a defendant’s understanding of the process, should we go further to facilitate the process’ understanding of the defendant? What is the role of expert evidence in this endeavour and how do we account for the lack of early recognition of ASD, particularly high masking ASD? These are difficult questions to answer, particularly as judicial decision-making research is difficult to conduct in this specific area, and our expectations of the criminal trial in balancing strong competing needs are broad and divisive.
Reference List
[1] Carter [2020] EWCA Crim 105
[2] Wheeler [2025] EWCA Crim 558
[3] Kajsa E Dineson, ‘A Terrorist Mindset: Findings from an Empirical Enquiry into Prosecutions, Evidence and Mindset Material’ (2024) 44 Legal Studies 703.
[4] R A Duff, Punishment, Communication and Community (New York: OUP, 2001), ch5, 179-181.
[5] Martha Albertson Fineman, ‘Vulnerability and Inevitable Inequality’ (2017) 4 Oslo L R 133-149.
[6] See further; Helen Williams and Alison Jobe, ‘Testimonial Injustice: Exploring ‘Credibility’ as a Barrier to Justice for People with Learning Disabilities/Autism who Report Sexual Violence’ (2024) Disability and Society 1; Kathy Puddifoot, ‘Credibility Deficits, Memory Errors and the Criminal Trial’ in Zachary Hoskins and Jon Robson, The Social Epistemology of Legal Trials (London: Routledge, 2020).
[7] Claire Allely Autism spectrum disorder in the criminal justice system : a guide to understanding suspects, defendants and offenders with autism (London: Routledge, 2020) ch 6; Clare Allely and David Murphy, ‘Autistic defendants in court: perceptions and support for accessing justice’ in Tom Smith (ed.), Autism and criminal justice : the experience of suspects, defendants and offenders in England and Wales (London: Routledge, 2023).
[8] Alliyza Lim, Robyn L Young and Neil Brewer, ‘Autistic Adults May Be Erroneously Perceived as Deceptive and Lacking Credibility’ (2021) 52 J Autism Dev Disord 490; Joshua W S Smith and Celine van Golde, ‘Mock Juror Perceptions of an Adult Autistic Witness: Effect of Diagnostic Label and Witness Intermediary Presence’ (2024) Psychiatry, Psychology and Law 1.
[9] Mahomud [2019] EWCA Crim 667.
Defending Vulnerability 