Supporting Neurodivergent Clients at Olliers

At Olliers, we take pride in representing neurodivergent clients, including those with autism and ADHD. We recognise that the criminal justice system still has significant strides to make in ensuring fairness for neurodiverse individuals. Guiding our clients through what is often a confusing and intimidating process is a responsibility we take seriously.

Internet Offending

Many of our clients come to us after being contacted by the police regarding alleged internet-based offences including indecent images and allegations of sexual communication. While autism itself does not increase the likelihood of offending—autistic individuals are, in fact, more often victims of crime than perpetrators—it can sometimes be a contributing factor in cases related to internet use.
Offences stemming from internet activity are often tied to difficulties with social relationships or misunderstandings. Autism is characterised by challenges in social communication, which can sometimes manifest as repetitive behaviours, fixations, or misunderstandings about social and sexual norms. For some, vulnerability online may lead to mistakes, boundary misunderstandings, or even being exploited or radicalised.

Understanding Social Relationships

Many of our autistic clients are of average or above-average intelligence, often in professional roles or higher education. However, there can be a disconnect between their cognitive abilities and their social maturity, which might align more closely with a younger age group. This disparity can create risks, particularly in online interactions, where age assessments and social boundaries are harder to navigate. We frequently represent clients who unintentionally engage in relationships with individuals below the age of consent due to such misunderstandings. In these cases, obtaining expert evidence is crucial in demonstrating intent and context.

Vulnerability Online

Autistic individuals may spend more time online due to social isolation, which increases their exposure to risks such as inappropriate content or unsafe relationships. For some, the internet becomes a space to explore sexuality or educate themselves, but this can lead to unintentional exposure to illegal material. Without understanding the legal implications, they may access such material, triggering police involvement, arrests, and investigations that can be overwhelming and extremely damaging to mental health.

The Impact of the Covid Pandemic

The isolation brought on by the Covid pandemic further intensified these issues. We have found that our autistic clients often spent excessive time online, increasing their vulnerability. Many lacked the broader context needed to understand that certain behaviours, such as accessing illegal material, were harmful or criminal. This lack of understanding is often driven by curiosity rather than deviance, a distinction that can be critical in how these cases are ultimately dealt with.

Indecent Images of Children

For a small subset of cases involving indecent images of children, the behaviour may stem from obsessive or compulsive tendencies rather than intent to act on those interests. Risk assessments, often based solely on the volume of accessed material, can misrepresent the underlying behaviour. At Olliers we work with expert defence witnesses to provide nuanced evidence, which is vital for mitigation and achieving fair outcomes in court.

ADHD and the Criminal Justice System (CJS)

Evidence highlights a significant relationship between ADHD and involvement with the Criminal Justice System, including:

• Early Age Criminality: Individuals with ADHD are more likely to engage in criminal behaviour at a younger age.
• Higher Risk of Reoffending: ADHD increases the likelihood of repeat offending.
• Co-occurring Disorders: Prisoners with ADHD are at greater risk of having psychiatric conditions compared to those without ADHD.
• Aggression: ADHD is linked to aggressive incidents in prisons, with affected individuals being up to eight times more likely to display such behaviour.
• Self-Harm and Suicide: There is a significant association between ADHD and self-harm or suicide, particularly among women.
• Substance Use and Comorbidity: Approximately 96% of prisoners with ADHD also experience substance use issues, conduct disorders, or personality disorders.

The UK Government’s Prison Strategy White Paper reviewed neurodiversity within the CJS, emphasizing ADHD’s prevalence and its impact on the system.

Representations against charge

When deciding whether to prosecute someone with a neurodivergent condition, it is essential to evaluate the condition’s effect on the individual and its relevance to the specific circumstances of the offence, for example, ADHD may influence behaviour, intent, and maturity, which must be considered on a case-by-case basis.Prosecutors should take into account:

• The suspect’s mental functioning, even if autism, ADHD or a similar condition is not formally diagnosed.
• The Director’s Guidance on Charging, ensuring the investigating officer clearly notifies the Crown Prosecution Service (CPS) of any diagnosis or suspected condition.

Key Considerations for Prosecutors

Prosecutors must carefully evaluate information about the suspect’s mental health, including autism and ADHD, during the charging process.
Relevant material may include:

1. Diagnosis and Assessment: Details of the suspect’s mental health condition and the basis for the assessment.
2. Medication Information: Details of prescribed medication and whether it was being taken at the time of the alleged offence.
3. Educational and Health Plans: Any existing Education and Health Care Plans (EHCP).
4. Suspect Admissions: Admissions made by the suspect and the context in which they were made.
5. Defence Information: Details of the defence raised, including how it arose and any supporting evidence.

Pre-Charge Submissions

Defence teams should provide all available documentation and relevant information as part of pre-charge submissions to prosecutors. This includes any of the above material that could influence the decision-making process.
At Olliers, in many cases, we draft comprehensive pre-charge representations illustrating why it is not in the public interest to prosecute and suggesting that the matter could be better disposed of by way of a caution or, in some cases, no further action is appropriate.

Prosecutors’ Obligations

When applying the Code for Crown Prosecutors, prosecutors must:

• Record how autism, ADHD or any other condition has been considered in both evidential and public interest stages.
• Clearly outline the grounds for charging decisions, setting action plans, or deciding to take no further action.
• Seek additional information where necessary to ensure informed decision-making.

By ensuring neurodivergence is adequately considered, prosecutors can promote fairness, transparency and justice for individuals navigating the criminal justice system.

Pre-charge case success

We have had notable successes with efforts to persuade the police to take no further action or to caution our clients for offences. For example, in a case involving ‘paedophile hunters’ who targeted a neurodiverse man with learning disabilities online, and who livestreamed a subsequent confrontation on Facebook, we were able to show that he had completed intensive rehabilitation before a charging decision was made. The police gave him a conditional caution rather than him ending up in court.
In another case involving a teenager who was found to have a very large collection of illegal Japanese cartoons – images that are classed as prohibitive images – we were able to show that this was due to obsessive collecting which was a symptom of his autism. Again, the police were persuaded to caution a client who might otherwise have ended up in court. We have many such examples of where our skill and understanding when dealing with autistic clients have made a real difference to the outcome of a case.

Why Expertise Matters

Representing neurodivergent clients requires a deep understanding of how such conditions might influence behaviour. While autism does not excuse illegal actions, it can provide important context that explains why someone acted in a particular way. Many clients lack formal diagnoses until they are involved in a case although often comment they feel they ‘may’ have autism or ADHD. In such situations, we assist them in obtaining a diagnosis and connect them with organisations whose rehabilitative programs can significantly impact case outcomes.

Our Commitment at Olliers

At Olliers, we are dedicated to advocating for neurodiverse clients. Our team is fully trained in autism and remains up to date with legal developments and best practices. We also actively campaign for improvements to ensure a fairer system for neurodivergent individuals. Our experience and commitment mean we know how to navigate these complex cases and provide the best possible support for our clients.

Olliers Solicitors – specialist criminal defence lawyers

If you require representation for yourself, a friend or family member, then please contact us by telephone on 0161 8341515, by email to info@olliers.com or complete the website enquiry form below to discuss how Olliers can advise and represent you.