Supporting Witnesses and Defendants with Autistic Spectrum Disorder, Jenny Cutler, (2015)

‘How long did the assault last?’ (Long pause . . . . . ) ‘About as long as it takes to eat a chip.’

A recent letter to the Times (28/08/2015), signed by 11,627 supporters of the National Autistic Society, including world renowned expert Simon Baron-Cohen, identified that the average waiting time for an autistic adult to receive a diagnosis was two years. This, of course, is the figure for those who have requested or been referred for an assessment. I strongly suspect that there also exists a large group of adults, adolescents and children on the autistic spectrum, currently being processed through the criminal justice system, who have either never been diagnosed or have been wrongly diagnosed. This clearly presents a challenge to Registered Intermediaries, many of whom will have experience working with individuals on the autistic spectrum.

Sometimes in the ‘chicken and egg’ world of the ABE interview by police, the RI will have conducted their assessment before I, as a Forensic Psychologist, am instructed. It is also possible that the RI may already have identified key diagnostic indicators but with no possibility of this being confirmed before the trial takes place. It is an unfortunate fact that involvement in the criminal justice system is often the trigger to obtain an important diagnostic assessment that will inform the appropriate management or treatment for a witness or defendant in the future. There is no doubt that confirmation of a diagnosis of an autistic spectrum disorder (ASD) can open the door to specialist services and interventions; but also, very importantly, a diagnosis is essential for a better understanding of the autistic individual in order to reduce anxiety and improve communication and management of vulnerable witnesses as well as to obtain an appropriate court disposal for autistic defendants.

In the case of defendants with ASD an understanding of an individual’s condition is crucial. My reports often conclude that criminalising the behaviour of an individual on the spectrum is not in the public interest. I believe that a health/treatment and education-focussed pathway should be provided in preference to involvement with the criminal justice system. Furthermore, understanding and appropriate treatment reduces the risk of future offending. Criminalising challenging behaviour rarely reduces that risk, while specialist placements and specialist interventions can provide the structured and supervised educational, leisure and social activities that reduce offending and improve quality of life.

For an RI confronted with an individual who appears to have an ASD, but has no formal diagnosis, my advice is to take a pragmatic approach. Below I have outlined some of the key characteristics of ASD that are likely to impact upon the role of the RI, and ipso facto, the issues which the RI will need to identify for the Court so that the individual can give best evidence; and to facilitate their meaningful participation in a trial.

Many of the RIs I have worked with are Speech and Language Therapists or experienced Teachers, and others Psychologists, all of whom may have considerable experience of working with individuals on the autistic spectrum. If as an RI you are concerned that a formal diagnosis of ASD has been missed, my advice is to request an assessment by a suitably qualified Expert Witness, and to keep a written note of this. If your advice is, for some reason, not acted upon then I suggest an Addendum is attached to your report. This may simply state that, in your opinion, the witness/defendant has demonstrated complex difficulties that require further investigation and that the individual’s presentation indicates that he/she would benefit from the best practice guidelines provided in The Advocates Gateway Toolkits 3 and 15. Such an Addendum will clarify your concerns and ensure that Counsel have been appropriately directed to a source of best practice guidance. You may be asked, at the Ground Rules Hearing, why you have produced this Addendum – at which point you may reasonably state that you recommended an assessment by an Expert Witness. Obviously this may not please anyone except the Defence, in the case of a prosecution witness; but as RIs and Expert Witnesses are not part of the adversarial process, our clear duty is to the Court and to the vulnerable witness/defendant.

Below are some key characteristics that may be observed in individuals on the autistic spectrum: you may wish to attach to your Addendum this brief summary of symptoms and indicate those that you have observed during your assessment.

Those members of Intermediaries for Justice not specifically involved in assessment of witnesses/defendants may be interested to note that ASD is seen as a complex and pervasive developmental disorder, which is lifelong and affects an individual’s social communication, relationships and central coherence as well as his or her perspective-taking and understanding of actions in terms of their consequences and empathic responses. The following three broad areas of difficulty always occur to some extent but will exist in varying degrees of severity, depending on the individual: communication, reciprocal social interaction; and stereotyped behaviours and restricted Interests. In the Diagnostic and Statistical Manual (DSM5) the use of a single diagnostic category (ASD) is now adapted to individual clinical presentation through what are termed ‘clinical specifiers’ and through associated features. Therefore, for example, an individual may be described as having ‘Autistic Spectrum Disorder with intellectual impairment and related Generalised Anxiety, also at the level of a disorder’.

Communication difficulties in ASD can include:

• a propensity to interpret what people say very literally.
• a reduced ability to maintain a reciprocal conversation, with limited turn-taking and topic-maintenance.
• limited eye contact which can include being gaze-avoidant in the initial stages of any meeting; and also fleeting eye contact and/or facial expression reflecting emotional response. (For example, focusing on a phone or tablet whilst being spoken to or while others are speaking does not mean an autistic individual is not listening. Such behaviour places a reassuring physical barrier between the individual and others.)
• limits in other aspects of non-verbal communication such as the amount of body language and gesture, this also tending to have an ‘odd’ quality and to appear awkwardly stylised.
• oddly-phrased speech, and a tendency to return to preferred topics and themes even when pressed to describe specific events.
• a tendency to talk in ‘lists’.
• limited use and range of facial expressions directed towards others, these expressions not therefore being communicative.
• use of ‘time’ to limit contact with others: for example, wishing to decide how long the communication will last, perhaps saying at intervals ‘Are we done yet?’. Then, when the allotted time they have ‘given you’ is up, the individual may simply stand up and politely say ‘That’s it, we’re done now’ or ‘I’m finished, thank you’, and then leave the room.

To take account of the above, it is recommended that assessments or questioning should be set collaboratively with a time limit, either 30 minutes or an hour, but no longer. If you adhere to this rule the autistic individual is more likely to agree to another session. Issues that are known to be difficult should always start with a 30 minute time limit. When the individual learns that one will stick to the time schedule he/she will be likely to consider the RI/police officer trustworthy.

Reciprocal social interaction difficulties can include:

• limited empathic or emotional gestures that are awkwardly integrated.
• a struggle to identify emotion in themselves or others. Asked what makes them happy autistic individuals will likely list the activities they enjoy. Asked how they know when they are happy, they tend to reply ‘Don’t know.’
• a marked propensity to label anxiety as anger. Importantly, individuals on the spectrum frequently struggle to identify the nature or differences between types of key relationships.
• especially among those with average to above average IQs, strong investment in minimising their social difficulties, some not even appreciating they have them. In several, these difficulties manifest themselves as social isolation. In others the problem may be extreme. For example, the offence of stalking should at least trigger consideration of the need for an assessment of the presence of ASD.

Stereotyped behaviours and restricted interests can include:

• a preoccupation with routine, predictability and the punctuality of others.
• special or restricted interests of the individual, often difficult to manage in assessment or police interview because of their preference for talking about those interests and their failure to identify that others are not as interested.
• idiosyncratic interests such as underground maps and timetables. Some such interests may draw them to the attention of the criminal justice system: for example internet trolling, downloading abusive images, interest in the effects of poisons etc. Some individuals will have learnt to mask antisocial special interests.
• unusual sensory interests, for example a desire to touch or sniff inappropriate or unusual things: sniffing other people’s hair or touching their shoes. Others may find certain textures or colours or smells so intolerable that experiencing them causes overwhelming anxiety. When the individual with ASD finds that their own sensory peculiarities, restricted interests, and routines and rituals are not adhered to, this is likely to cause swift escalation in anxiety, possibly followed by ‘acting out’ behaviours and aggression.
• the common occurrence of vocal and facial tics.
• the necessity for repeated reassurance and the need for every situation to have a predicted outcome.
• aspects of sensory processing which can contribute to current performance challenges in an individuals’ daily life: for example people with certain sensory issues may have difficulty responding to rapidly presented or low intensity stimuli or become quickly overloaded and anxious.
• a propensity to a strong sense of entitlement.
• a characteristic inability to perspective-take in some cases, meaning that they tend to feel justified in ‘acting out’ when their sense of justice is affronted, particularly if those in authority have not been consistent in their application of rules.
• in extreme cases, and resulting from the above, challenging and/or illegal behaviours such as repeated breaches of an Anti-Social Behaviour Order (involving a special interest or ritual that the individual cannot or will not desist from). These behaviours can be linked to the mental disorder and complex neurological deficits of an autistic spectrum disorder.

In conclusion, my suggestions for RIs working with individuals in whom they have identified traits of ASD are:

• Raise the possible need for an Expert Witness report because an RI does not make formal diagnoses.
• Offer simple contracts to the individual, for example an agreement to meet for 30 minutes to achieve a particular objective or piece of work. And if features of the spectrum only become apparent during your assessment, offer a break after an agreed period anyway.
• Offer continual reassurance e.g. it is ‘okay’ to be different and you the RI have met other people who experience the same problems.
• Offer suggestions of ways to relax, or self-soothing strategies for reducing anxiety, that can be realistically maintained and are age appropriate.
• Provide a structured schedule for your assessment, the police ABE interview if you are involved, and the Court process. Have a clear ‘now’ and ‘next’ augmented outline for each day at Court. Contracts and structured schedules are sometimes called Social Stories or Social Scripts and may be written or drawn as a less formal aid to memory.
• Since autistic individuals will require help to recognise emotion in self and others, use augmented techniques to develop coping strategies to manage emotions in Court, especially anxiety and self-esteem.
• Present any intervention in an ‘ASD-friendly’ way, utilizing an individual’s ‘special interests’ or idiosyncratic motivations as well as augmented communication systems, such as ‘Social Scripts’ and ‘Comic Strip Conversations’.