In October 2022, Dr Tom Smith published the first of a two-part series of articles examining how the experience and engagement of neurodivergent individuals (for example, those who are autistic or have Attention Deficit Hyperactivity Disorder (ADHD)) drawn into the criminal justice system (CJS) can be more effectively and fairly managed by criminal defence barristers, when undertaking their role as legal representatives. Whilst not a set term, neurodivergence commonly describes cognitive development which varies from the typical, primarily related to and affective of communication, learning, attention, sensory processing, and mood regulation (among other aspects of cognition and behaviour). Evidence suggests that significant barriers to a positive and effective experience for neurodivergent individuals remain at all stages, including in policing, courts and prisons (see, for example, the Criminal Justice Joint Inspection, published in July 2021).
As facilitators of access to justice, lawyers can either mitigate or aggravate these issues (in the same way they can for any vulnerable participant); they are therefore key to ensuring that neurodivergent individuals – whether as an accused person or a victim of crime – are able to engage with the CJS on an equal basis with their neurotypical peers. This is particularly the case for barristers and advocates representing neurodivergent defendants at trial and sentence. It is clearly vital to the right to a fair trial that the accused is represented effectively by their lawyer; as part of this, barristers and advocates must discharge their duty to protect and advance the best interests of their client in a meaningful way.
In the context of neurodivergent individuals, such principles arguably demand a more specialised approach which is carefully adapted to the needs of those being represented. This is particularly the case in relation to direct engagement (for example, client conferences or taking instructions); advocating for a client in court; and ensuring that clients are able to access hearings effectively through engagement with the court and other parties. Ultimately, providing good legal representation requires more than grasping the nuances of facts, case law, legislation, and procedures pertinent to a client’s cause. Good lawyering can only be realised if lawyers are also able to effectively engage with and understand the personal needs of the people they represent.
The article was published by Counsel, the official magazine of the Bar of England and Wales, which is read by legal professionals, from law students to senior judges, policy makers, key influencers, and members of the government, as well as having a wider general readership.
Read the full article on Counsel magazine. Part 2 is due to be published in November 2022.