24th October 2019
ADHD Specialist Defence
ADHD Specialist Defence Guide by Imogen Cox
ADDISS has been referring work to me now for a number of years, and I spoke at the ADDISS conference this year. Through the contacts made there I now also have close links to ADHD Solutions in Leicester.
I have noticed through my dealings with people who have ADHD, and their families, that there is a common thread to the types of questions that I am asked. I have outlined some of those questions here and will attempt to answer them. This is a huge subject so I am not able to cover every eventuality.
Where I refer to any figures or statistics in relation to people with ADHD and the commission of criminal offences, these figures come from Tipping Point, by Phil Anderton PhD. A brilliantly written book which outlines "what professionals should recognise as the social impact of ADHD".
In a Police Station
If arrested and taken to the police station should a child with ADHD have an Appropriate Adult at interview?
All children are entitled to have an Appropriate Adult in interview if they are aged 16 or under.
Who can be an Appropriate Adult?
Any person aged 18 or over as long as they are not connected in any way to the alleged offence in any way, for example a victim or witness. In the absence of someone suitable, or in the event that suitable persons are unavailable (at work or child care issues) then the police can contact the Appropriate Adult Service to attend. These are a separate organisation not connected with the police. As a solicitor, my view is that sometimes an Appropriate Adult not known to the person in custody is preferable. They are not emotionally involved or stressed by the situation, for example of finding the child you love in the police station, or being angry with the fact that your child has got themselves into this situation.
What can a parent expect if their child is arrested?
You will be notified that your child has been arrested and if appropriate may be asked to act as an Appropriate Adult. If your child is over 16 though – even with ADHD – there is no requirement for you to be notified of his/her arrest. This said though, unless exceptional circumstances apply any person in custody is entitled to a call to advise someone of their choice that they have been arrested.
If my child is on medication for ADHD what happens whilst they are in custody?
All persons under arrest are booked into the Custody Suite and are spoken to by a Custody Sergeant who, amongst other things will conduct a medical assessment. As long as your child discloses that have been diagnosed with ADHD and that they are on medication, arrangements can be made for the medication to be collected and administered as appropriate
What about if my child (under or over 16) has missed his/her mediation and the interview is still conducted? Is this allowed?
As long as your child has told the Custody Sergeant that he/she is on the medication, and then it is not given to them, it MAY be that the interview could be rendered inadmissible. This is a legal application made by solicitors in Court. The effect of winning the argument would be that the interview would not be able to be used in evidence in any court case. If there is a solicitor at the police station then they are able to make representations to the police in the event that the mediation has not been sorted out.
What is the role of an Appropriate Adult?
- To support, advise and assist the detained person, particularly whilst they are being questioned.
- To observe whether the police are acting fairly ,properly and with respect for the rights of the detained person – and to tell them if you think that they are not.
- To assist with communication between the detained person and the police.
- To ensure that the detained person understands their rights and that you have a role in protecting their rights.*
Should an adult with ADHD have an Appropriate Adult at interview?
Anyone with a recognised mental disorder should have an Appropriate Adult at interview. In practice however, some custody sergeants would not necessarily request one in all cases. Again, this could lead to a legal argument to exclude the interview.
I have to say though that in practice people with ADHD do not always tell custody sergeants that they have ADHD and if the police do not know then they cannot make informed decisions.
This is where you come in. If you are a parent of a child of any age with ADHD make sure that you advise them that if they are ever arrested then they must always tell the custody sergeant that they have ADHD and ensure that they let them know what medication they are on and how often it has to be taken. They should also always have a solicitor at interview and let the solicitor know that they suffer from ADHD. Sufferers of ADHD are twice as likely to commit criminal offences and are three times more likely to be arrested. This means that given the increase in risk, it makes sense to educate your child as to what to do in the event that they are arrested so that they are given the best possible help in the event that they get into trouble.
How do the courts perceive a defendant with ADHD giving evidence in court and the inherent difficulties associated with the disorder?
In the past when dealing with a defendant with ADHD giving evidence in court I have ensured that the court are aware that my client has ADHD and how it effects them. I have asked for regular breaks and rests and made sure that the Court are aware of how my client may come across in Court Things are now moving on and it is now possible for intermediaries to be used in Court to help. One such company who provides such a service is Communicourt. In the event that legal aid has been granted forth court proceedings, the cost of this service may be covered by the Representation Order. Through my attendance at the conference it is clear to me that progress is now being made with assisting the various agencies within the criminal justice system to become aware of the condition and how it affects people.
Can the existence of ADHD remove responsibility for the commission of a crime?
There are two elements to the commission of all criminal offences, the actus reus and mens rea. Simply put, the actual act, and the mental intent to commit the act. In order for a person to be guilty of an offence, both elements have to exist. Having ADHD does not remove either element – although it may assist with an explanation as to why the offender committed the offence. It does not however, not provide an excuse. In my experience, and as explained more fully in The Tipping Points, people with ADHD are more likely to have issues with substance misuse i.e. alcohol or drugs. If an offence is committed under the influence of either, the fact that a defendant has ADHD can become irrelevant.
If a person with ADHD is convicted of an offence does the existence of ADHD affect sentencing?
Any sentencing exercise takes into account the circumstances of the offence itself and the offender. It follows that any characteristics of the defendant, including ADHD, have to be considered. A good solicitor with knowledge of ADHD will explain to any Court that the condition can lead to impulsivity and the inability to Wait Think Act**, and therefore more easily lead to the commission of criminal offences. If diagnosed with ADHD then clearly providing the Court with important information about the condition can be excellent mitigation and in turn make a difference to the type of sentence passed. In addition, if the person with ADHD has difficulty reading or writing, then there are certain Court Orders that they could not be given. Equally though, if the existence of ADHD has led to substance misuse, then a relevant Court Order can be tailored to address these issues. In the event that a custodial sentence is passed then the prison must be notified of any diagnosed disorder and the usual prescribed medication. The responsibility then passes to the prison to treat the prisoner.
* Ed Cape fifth Edition Defending Suspects at the Police Station. ** Russ Barkley
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