ADHD and the Criminal Justice System  

ADHD awareness month falls in October of this year and the theme presented, “Awareness is key.”

What is ADHD?

Attention deficit hyperactivity disorder (ADHD) is a condition that affects individuals’ day to day behaviour. Individuals with ADHD can act on impulse, seem restless and may have trouble concentrating.

The symptoms of ADHD can be categorised into two types of behaviour problems:

• Inattentiveness
• Hyperactivity and impulsiveness

Many people with ADHD can fall into both categories however some may have a greater problem with concentrating and focusing as opposed to hyperactivity and impulsiveness. This form of ADHD is known as Attention Deficit Disorder (ADD) and this can often go unnoticed because the symptoms for ADD may be less obvious.

What are the challenges faced by those with ADHD in the Criminal Justice System?

In November 2021, experts came together at a policy roundtable to identify the barriers and challenges faced by people in the Criminal Justice System with ADHD.

It is estimated 25% of offenders have ADHD and yet it still remains critically undiagnosed in prisons.

A sustained policy focus has been adopted to improve mental health across the NHS, this in turn has driven a focus on improvements of mental health services across the Criminal justice System but challenges prevail, and improvements are necessary.

Recently, we have witnessed the re-nationalisation of probation services and the reduction of individuals within prisons. Additional financial support in the Spending Review has the potential to help the Criminal Justice System.

How is ADHD linked to the Criminal Justice System

Evidence illustrates that having ADHD is linked:

• An increase in early age criminality
• An increased likelihood of re-offending
• An increased risk of co-occurring psychiatric disorders compared to prisoners without ADHD
• An increased link to aggressive incidents compared to other prisoners without ADHD of up to eight times
• A significant association with self-harm and suicide particularly in women, compared to people without ADHD
• Around 96% of prisoners with ADHD have a comorbidity substance use, conduct and personality disorders
• If ADHD is recognised in prisons and managed appropriately; there can be a reduction in criminality of 32% for men and 41% for women which is staggering

The Government’s Prison Strategy White Paper is directed at cutting crime and protecting the public with a modern and secure prison estate, designed to rehabilitate prisoners, this strategy undertaken by the HM Inspectorate of Prisoners and HM Inspectorate of Probation provided an independent review of neurodiversity in the Criminal Justice System. It emphasised ADHD’s prevalence.

The strategy aims to increase understanding of the needs of people who are neurodiverse, including ADHD/ Furthermore, it aims to outline what is required to allow a successful and comfortable transition back into society including access to continuity of case post release and specific educational and skills support whilst in prison.

Screening for ADHD

Screening for neurodiverse conditions which include ADHD should occur on entry into prisons and often this is overlooked. Currently there is no agreed screening tool used as standard across the Criminal Justice System but when it does happen it has been suggested to be inadequate. Screening has the purpose to recognise those who should be referred for a full diagnostic assessment for ADHD and this can be applied not only on entry into prison but within courts and by police and probation.

Expert attendees at the roundtable discussed how it is imperative screening is introduced across all stages of the Criminal Justice System to ensure individuals are supported throughout their interaction with the courts.

Suspects presenting with ADHD symptoms

The fact someone has ADHD, a different disorder or mental health condition may have a bearing on the decision to prosecute.

ADHD and Pre-Charge Investigations

The extent and effect of ADHD on an individual coupled with the circumstances of the particular offence should be considered on a case-by-case basis before a charging decision can be made.

Prosecutors ought to have regard to the mental functioning of a suspect or a defendant in proceedings even where this is not reflected in a recognised condition such as ADHD when assessing the mens rea and considering their maturity particularly in cases involving young adults.

Prosecutors must apply the Director’s Guidance on Charging. The officer in charge of the investigation concerning the suspect with ADHD must notify the reviewing lawyer at the CPS of the suspect’s condition or diagnosis and this should be done so clearly in a request for early advice for a charging decision.

The grounds for that decision must be stated which draws attention to relevant material considered. That information may potentially come from different sources and may include:

• Details of the mental health condition or disorder that the suspect is believed to have and the basis or rationale for the assessment
  Any information provided by the suspect as to their condition
• Details of any medication and any further information as to whether the suspect was taking that medication at the time of the alleged commission of offence
• Any Education and Health Care Plan
• Details of any admissions or partial admissions made by the suspects and the context of those admissions whether in the interview or any other time
• Details of defence raised to the allegations and how this came about

Where copies of the documents above are available, they should be included as part of the pre-charge submissions from the defence. A prosecutor should consider the material and information available and decide whether a decision to prosecute can be made or as a result whether additional information should be sought.

Prosecutors should record clearly their consideration of any suspect’s mental health such as ADHD when it comes to the evidential and public interest stages of the Code for Crown prosecutors, whether they make a charging decision, set an action plan in place or take no further action.

Maintaining a mindset where “Awareness is key” especially from a defence perspective when representing a client who presents with ADHD is instrumental as the approach adopted needs to be bespoke to that individual’s symptoms.

Leading lawyers specialising in defending neurodivergent clients (London & Manchester)

At Olliers we specialise in representing clients who are neurodivergent. We receive referrals from all over the country to deal with children, young people and adults who are either under investigation by the police or who are already charged with criminal offences.

If you need assistance for yourself, friend or family member, then please contact us to discuss how Olliers can advise and represent you.