Dilemma Medico Legal

People with autistic spectrum disorders and the criminal justice system

At Dilemma, we have professionals who are able to evaluate fitness to plead and diminution of responsibility on the basis of their considerable accumulated experience in these fields in relation to mental disorder in general, and Asperger syndrome in particular.

People with autistic spectrum disorders, like others with learning disability or mental disorders, may be unable to participate fully in legal proceedings.  They may lack capacity to act as a witness, in which case there is a range of procedures that may assist them (not applicable to the defendant though).  They may be vulnerable to suggestion in a police interview, and as a result, be falsely accused. They may be unable to plead (lack competency in the US), in extreme cases if they are found to commit a crime, they may be deemed to have lacked intent, and if they commit a murder, they may be considered to have diminished responsibility.  Finally, autistic spectrum disorder may be considered  to be a mitigating factor.

Several recent acts of Parliament have introduced new provisions to protect and support people who are disadvantaged in the criminal justice system, including people with an ASD. Other acts, such as the Mental Capacity Act of 2005 and the recently revised (May 2008) code of practice of the 1983 Mental Health Act also retrospectively alter how some of these acts should be interpreted.  The code of practice of the mental health act lists autistic spectrum disorders, including Asperger syndrome, as mental disorders, for the first time. 

The 1984 Police and Criminal Evidence Act (PACE) includes people with mental disorders as ‘vulnerable adults’ and uses the definition of the 1983 Mental Health Act.  People with an autistic spectrum disorder are therefore, by definition, ‘vulnerable’ in terms of PACE.   Children and vulnerable adults should only be interviewed in the presence of an appropriate adult, wherever possible this being a person with knowledge of the particular condition of the interviewee.  Interviews conducted in the absence of an appropriate adult may be deemed inadmissible in court, because of the risk of false confession or inadvertently misleading evidence.

The 1991 Criminal Justice Act set out provisions to support witnesses who were under-age, who had sensory impairments, who had learning difficulties, and mental disorders which since the ruling on the mental health act must be assumed to include autistic spectrum disorders. These supportive measures were reviewed in the guidance document, “Achieving best evidence in criminal proceedings” .  Witnesses in court (other than the defendant: this anomaly in the law is being questioned and may changed: further information here) have the right to an intermediary, who can be a litigation friend, often a family member and carer; their attorney if a family member or friend has been appointed to this role; an advocate appointed by the court of protection if they are under the jurisdiction of that court; or an independent mental health advocate appointed by the court from a roster of trained intermediaries.  They may also be able to give evidence by video link from a separate room or give their chief evidence via a pre-recording (although a recent House of Lords judgement may have made this unlawful). 

The 1991 Criminal Justice Act does not apply to defendants.  The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 does.  It introduces new principles for dealing with people who are unfit to plead by virtue of a ‘disability’.  It specifies the grounds on which a person can be acquitted on grounds of insanity (which might rarely apply to people who are severely affected by ASD), and it refers to the special considerations that apply to homicide, the only crime for which it is possible to make a case for diminished responsibility.

Further information is available from the National Autistic Society web site (Criminal Justice System and ASDs).