Treatment of Autistic People Who Have to Attend a Court or Tribunal

At some point in their lives, it is very possible that an autistic person may find themselves embroiled in the justice system. Not only are autistic people more likely to be a victim of crime, but many also sadly experience the courts and police as defendants. This post will focus on potential support for the difficult experience of attending a court or tribunal as a witness or defendant, when you are autistic. This applies to both criminal and civil courts, therefore autistic people involved in family, employment and other civil claims can access the same support.

The Equal Treatment Bench Book Guidance

The ‘Equal Treatment Bench Book’ is guidance for judges. Judges have a responsibility to ensure that certain groups of people attending court are treated fairly and given an equal chance. This includes groups such as young people, people from minority ethnic groups and disabled people. The information in this guidance may assist autistic people in understanding what support could be provided for them. It is important to note that each person won’t always get the same adjustments as they are provided based on individual assessment and need. The adjustments discussed in this blog are not the only ones that may be available and should not be taken as a definitive list. A court will usually have the power to dispense with certain courses of action where it is in the interests of justice.

All of the quotes that I am using here are taken directly from the Equal Treatment Bench Book, which is available in full at: https://www.judiciary.uk/wp-content/uploads/2018/02/ETBB-February-2018-amended-March-2019.pdf – Please note that this is the current version, last updated in March 2019, but updates can and do happen fairly frequently.

“The guidance in the Equal Treatment Bench Book regarding disability, ‘is important advice which every judge and every justice of the peace is under a duty to take into account’.” Whilst this is guidance for judges, it is helpful for advocates, other court staff and anyone appearing in court to be aware of the information given, particularly as adjustments will be most effective if they are put in place from the beginning of the court process. It is also useful for autistic people and their legal representatives to be able to apply support before judicial intervention as this will help to reduce potential costs that may occur if lawyers are responding to an order, rather than having carried out adjustments to case management and documents beforehand.

Where in the Law Does it Give Authority for Reasonable Adjustments and Support in Courts and Tribunals?

Assistance for autistic people in court has a clear backing in law. As the guidance explains, “Witnesses and parties may be ‘vulnerable’ in court as a result of various factors. There is no general definition of ‘vulnerability’ under the law. However, the criminal justice system defines as ‘vulnerable’, those witnesses who are under 18, have a disability, or where various other factors apply… This makes them eligible for certain statutory ‘special measures’.” In addition to this, “the United Nations Convention on the Rights of Persons with Disabilities outlines in articles 12 and 13 the need for States to ensure equal recognition before the law and effective access to justice.” Autistic defendants also have the protection of Article 6, the ‘right to a fair trial’, of the European Human Rights Convention (directly enforceable in UK courts using the Human Rights Act 1998).

Young Autistic People in Courts

It is clear that young defendants in particular are more likely to have special needs. “A 2015 study has shown that up to 60% of young people in the youth justice system have speech, language and communication needs.” The guidance has a whole chapter dedicated to young people in the justice system, which I will not cover here, but it is important to know that youth courts have different procedures in place to adult courts and tribunals.

How are Adjustments and Support Decided Upon?

The first important point to note is that at the outset of proceedings, “each person with a disability must be assessed and treated by the judge or tribunal panel as an individual so that their specific needs can be considered and appropriate action taken. Failure to do this may result in a decision being overturned on appeal.” The guidance highlights that “Some courts have Mental Health Liaison and Diversion Services which can help with diagnosis, adjustments and support needs.” Judges have the power to sanction adjustments for autistic witnesses and defendants.

Lawyers are regulated and have to abide by a professional code of conduct. These codes give specific duties not to discriminate and to ensure that law firms and barristers’ chambers have up to date equality and diversity policies. Therefore, if an autistic person has involvement with a lawyer, they will be able to ensure that their conduct and service is suitable for the autistic person’s needs. The same goes for other agencies, such as the police, who may be dealing directly with an autistic person as a witness, victim or defendant.

There are then separate duties on the court and the judge to ensure that court or tribunal proceedings take account of the autistic person’s needs. This can be especially important where an autistic person is acting as a ‘Litigant in Person’ (where they appear in court on their own and unrepresented by a lawyer, possibly if they haven’t been able to afford one and can’t access legal aid).

The guidance for judges states, “When discussing someone’s possible needs in court:

• Do not begin with any assumptions beyond those that are clearly justified by what is immediately and incontrovertibly evident.
• The person involved should be addressed directly and in a normal manner unless and until it is clear that some other approach should be adopted.
• Talk directly to the disabled person even if there is an interpreter, carer or personal assistant. Face this person if you can – with lip-reading this is particularly important.
• Enquire as to what is needed rather than the nature and extent of the impairment, e.g. ‘Do you need assistance to read this?’ rather than ‘Is your sight impaired?’
• If the condition is known, or disclosed, remember that within any condition there may be varying levels of impairment, so a general knowledge of the condition and its effects may be inadequate to deal with the particular individual appropriately, although it is a start.
• People vary in their sensitivity about disclosing their impairment and those with disabilities are often reluctant to ‘make a fuss about them’, so any questioning needs to be sensitive. The disabled person may be embarrassed or self-conscious, but a judge needs to be aware of how the person is coping so as to ensure that further steps are taken as and when required. This must be ascertained without appearing patronising.

When Autistic People Have to Give Evidence in Court (Examination and Cross-Examination)

People who are a claimant/victim, witness, or respondent/defendant in a particular case, may be required to give evidence in a court or tribunal. This means that they will have to stand up and be questioned (usually by a lawyer) about the information they have that is relevant to the case.

‘Examination’ is where a lawyer or representative for the person themselves (or someone the person is there to support) will ask the person questions in order to get them to state the evidence they want to give to help their case.

E.g. Alice has had her bag stolen. The lawyer who is ‘on her side’ in court will be the lawyer for the Crown Prosecution Service (who are the people that work with the police and victims to bring criminals and suspects before a court). During ‘examination’, she will be questioned by this lawyer in a calm and sensitive way, to get her to explain to the court all the information that she needs to, about how her bag was stolen. The reason that Alice has to be questioned to do this, is because if she were to just get up and tell her version of what happened without the lawyer asking her questions about it, then she might not give all of the information that her case has to give in order to meet the strict criteria that is required by the criminal procedure rules. The rules are to make sure that people are not brought to court as suspects and made to defend themselves based on missing or incomplete evidence.

‘Cross-examination’ is where a lawyer or representative for the person’s opponent (or someone the person is there to give evidence against) will ask the person questions in order to challenge what they have come to court to say.

E.g. Alice has had her bag stolen. Sarah has been accused of stealing Alice’s bag and Alice has given information that suggests that Sarah has stolen it. Sarah will have a defence lawyer to represent her in court. During ‘cross-examination’, Sarah’s lawyer will ask Alice questions about the bits of Alice’s evidence that Sarah disagrees with, and any bits of Alice’s evidence that may be weak, unsupported by other evidence, or where Alice could be lying. This questioning will likely feel more unpleasant, as Sarah’s lawyer will likely be trying to make it look like Alice’s evidence is not credible. Many autistic people struggle with the concept of people lying and it is very distressing to have it suggested that they might be lying. It is important to remember that the lawyer questioning does not personally dislike the person they are questioning and does not take a view on whether they think they are lying. It is also important to remember that questioning also helps to find out whether someone may have made a mistake in what they have remembered, or whether they don’t have the specific information needed about an important part of an event, even if they might have other, general information about it

This can be a particularly difficult and distressing experience for an autistic person and can pose a number of challenges. For many people, they will have an image in their minds from TV and films of the aggressive advocate, causing the witness to make all sorts of statements that they didn’t want to. It is important to know that this is not an accurate representation where a witness is vulnerable.

The guidance for judges on this point is also backed up by guidance for lawyers and in the procedure rules that all cases have to abide by. The following points are all taken directly from the guidance for judges:

• There is strong support from the higher courts for detailed constraints on the length, tone and wording of cross-examination where required. Appropriate explanations should be given to the jury.
• Judges and magistrates also need to consider how to communicate clearly with and reduce the anxiety of the vulnerable witness.
• Judges and magistrates have a duty to control questioning.
• If there is a problem with questioning, the ‘case law’ (past court decisions) encourages judges to intervene if needed, even if a lawyer or any other intermediary does not.
• Witnesses must be able to understand the questions and enabled to give answers they believe to be correct.
• The manner, tenor, tone, language and duration of questioning should be appropriate to the witness’s developmental age and communication abilities.
• Judges are fully entitled to impose reasonable time limits on cross-examination.
• The judge may direct that some matters be dealt with briefly in just a few questions.
• Duration of cross-examination must not exceed what the vulnerable witness can reasonably cope with, taking account of his or her age/ intellectual development, with a total of two hours as the norm and half a court day at the outside. The witness’s needs may require questioning to take place over more than one day.
• A defendant with Autism Spectrum Disorder can be allowed to have quiet, calming objects in the dock to help them to pay attention. Previously it has been acceptable to let a witness with Autism Spectrum Disorder give evidence wearing a lion’s tail, which was his ‘comfort object’ in daily life.
• It has been allowed for a Registered Intermediary to relay the answers of a witness with Autism Spectrum Disorder and behavioural problems, who gave evidence with her back to the live link camera; and in other cases, to relay the replies of witnesses who would only whisper their answers.
• It can be requested that all witnesses be asked ‘very simply phrased questions’ and ‘to express their answers in short sentences’, to make it easier for a defendant (who has complex needs but no intermediary) to follow proceedings.

There is extra guidance for lawyers who are involved in questioning and cross-examining autistic and other vulnerable people, from the Inns of Court College of Advocacy – National Training Programme, and toolkits and resources provided by the Advocate’s Gateway.

Support and Adjustments Specific to Autistic People

The guidance for judges has a disability glossary at the end, where over 40 different impairments and conditions are listed with specific details and recommended potential adjustments. As stated in the guidance, examples of reasonable adjustments are particularly helpful for autistic people. This is because autistic people often struggle with imagining what kind of adjustments they may need, as well as many of us not always interpreting our autism as a ‘typical’ disability. This means that asking an autistic person whether they need any adjustments will often not generate a response, or they may simply say no. This is not the only guidance on adjustments for autistic people in courts and tribunals, and the adjustments suggested should not be taken as the only ones possible.

The full entry for Autism Spectrum Condition in the glossary is copied below and can be found in the Equal Treatment Bench Book at section B-10 of the Appendix:

Autism Spectrum Condition

Note that this is an introductory overview for the purpose of considering reasonable adjustments, and should not be relied on as a medical analysis. See ‘Introduction’ within this Glossary.

What is autism?

Autism, including Asperger syndrome is a lifelong developmental disability affecting how people communicate with others and sense the world around them. It is estimated that 1.1% of people in the UK are on the autistic spectrum.

Autism is a spectrum condition and although autistic people will share certain characteristics, everyone will be different. To have a diagnosis of autism a person will have difficulties with social communication and integration, and will demonstrate restricted, repetitive patterns of behaviour, interests, or activities.

Many autistic people will have difficulties with the following areas, although this is not a definitive list:

• Literal interpretation of language.
• Unclear, vague and ambiguous instructions.
• Unwritten rules.
• Unexpected and sudden change.
• Hypothetical thinking – specifically the ability to accurately interpret and make a decision based on something that has not yet happened.
• Hypersensitivity to lights, noise, temperature and/or touch.

Many autistic people are methodical and logical and demonstrate strengths in the areas of problem-solving, attention to detail, and creative thinking. Despite this, according to the National Autistic Society, only 16% of autistic people are in full-time employment and 43% have said they have left or lost a job because of their condition.

Historically, concepts such as ‘high-functioning’ and ‘low functioning’ autism have been used. However, thinking in these terms can be unhelpful as an autistic person who is ‘high functioning’ may still have high support needs in different situations, specifically unfamiliar high stress situations such as tribunals.

Many people have never had their autism diagnosed. This is partly due to the levels of autism awareness and understanding in society and amongst health professionals. Many people will not have been diagnosed as a child over 15 years ago.

Diagnosis

It is not uncommon for people to be diagnosed with autism later in life following events such as redundancy or pending retirement, when the stresses trigger anxiety and demonstrably autistic behaviour. It is extremely common for women to be misdiagnosed or not diagnosed at all. This is most likely due to the fact that women are better able to mask or ‘hide’ their autism and will often mimic others.

In addition, people may have been brought up in other countries where tests for autism are less advanced or where there is a great deal of stigma attached to autism, so that it is rarely admitted.

Difficulties with the legal process

Autistic parties and witnesses, depending on the nature of their autism, may have these difficulties in court:

• Sensory overload, eg due to lights (which can appear excessively strong or strobing), noise (a quiet fan can sound like an aeroplane flying overhead), temperature (can feel heat or cold more intensely than others).
• Difficulty answering hypothetical questions. This includes difficulty with a question such as ‘What adjustments would you find helpful?’ An autistic person may be unable to envisage how he or she would feel if certain adjustments were made.
• Difficulty with chronology and time-scales.
• Expectations (settlement vs admission of discrimination)
• Settlement discussion and mediation is difficult. An autistic person will find it difficult to imagine how much he or she would like to settle for because it is too hypothetical to be answered.
• Any lack of continuity, eg with legal representation / judge / environment.
• Unwritten rules: when is it appropriate to speak, what language should be used when addressing the judge.

Anxiety will most likely be the overriding difficulty an autistic person will face in court.

This will affect a person’s ability to use communication strategies. As a result:

• The person’s body language and non-verbal communication may come across as aggressive.
• Their voice may become louder and they may shout.
• They may use stimming to self-regulate anxiety. (‘Stimming’ is fidgeting, flapping, scratching, picking, humming, coughing – these are coping mechanisms.)
• They may be visibly distressed and start crying.

Difficulties with the court process have been identified with the assistance of the National Autistic Society’s training team.

Reasonable adjustments

The following steps may be helpful but every autistic person is different. Always ask the individual.

Prior to the hearing

• Give very explicit instructions on all case management directions, including precise details regarding who documents should be sent to and when.
• Try to keep the same judge in all preliminary hearings.
• Explain in advance what the hearing procedure will be like. Send a written timetable.
• • Explain the person can visit the hearing venue in advance to have a look around and/or send a photograph. Describe arrangements on arriving at the venue for checking in with reception, finding the waiting room, being called to the court room etc.
• To avoid anxiety looking for a private waiting/conference room on the day, reserve one in advance for use by the autistic person rather than the general waiting room. Tell the individual that this will be arranged.
• • Ask other side to prepare a simple chronology, ideally with certain dates (possibly accompanied by photographs) which are personal to the individual as reference points.

During the hearing

• Explain at the outset in detail the hearing procedure including length and timing of breaks.
• Give regular breaks, eg 10 minutes after every 40 minutes in court to prevent anxiety escalating and other symptoms developing as a result.
• Seating: ask where the person would like to sit. Often they will prefer to sit near a door, (so there is an ‘escape route’).
• Prevent people going in and out the room or moving behind the individual.
• Switch off lights, fans and heaters with any humming sound, however quiet. If lights cannot be switched off, allow the person to wear sunglasses or a hat. Use window blinds.

In relation to communication:

• Prior to the hearing, get the other party to prepare and send to the person a clear and uncontroversial chronology.
• Give precise instructions, setting out apparently obvious follow-up steps (e.g. ‘Write out your statement, then photocopy it and send a copy to the respondents’ solicitor, ie (name and address) by first class post’).
• Give reasons for any order or rule.
• Establish rules at the outset. If e.g. the person interjects at an inappropriate time, either stop this the first time it happens and explain why, or allow it to continue throughout. Inconsistency is confusing.
• Avoid figurative communication, eg ‘take a seat’. Better is ‘sit down please’.
• Do not rely on intonation, gesture, facial expression or context to convey meaning.
• Avoid hypothetical questions, both regarding the substance of the person’s evidence and regarding court procedure.
• Avoid legal or management jargon.
• Allow individual to write witness statement / give evidence out of chronological order; help with dates by showing a pre-prepared chronology.
• Tell the individual he or she need not make direct eye contact. ‘I don’t expect eye contact. Look wherever you need to look to make you feel comfortable and concentrate.’
• Many people with autism have had a lifetime of difficulties interacting with others which can negatively impact on their self-worth and self-esteem. Be patient, consistent and wherever possible positive.

Watch out for signs of heightened anxiety, e.g:

• The individual starts to speak louder and more formally, and dropping their contractions (eg saying ‘did not’ instead of ‘didn’t’).
• The person might start swearing.
• The person starts ‘stimming’.

Consider intermediaries

Criminal and family courts, and certain other courts, can seek the assistance of an ‘intermediary’ where there is communication difficulty. For more detail, see the section on ‘Criminal court procedure – statutory measures’ in chapter 4 (Mental Disability).

Acceptable terminology

Many autistic people would prefer to be referred to as ‘autistic people’ rather than ‘people with autism’. However, individuals should always be asked which they would prefer.

It is better to refer to ‘autistic spectrum condition’ than ‘autistic spectrum disorder’, which might carry negative connotations.