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ADHD and courts

Attention Deficit and Hyperactivity Disorder (ADHD) Good Practice Guide

This Guide is relevant to those involved in Criminal Justice process (Police, Crown Prosecution Service, Solicitors, Witness Support Service, Youth Offending Team and Magistrates) in the Burnley, Pendle and Rossendale Youth Court.   

It will assist an understanding of ADHD, aid recognition of the symptoms of it and encourage an appropriate response by those involved in that process.  It should also be read in conjunction with other guidance issued in November 2002 by the Lancashire Magistrates’ Courts Service relating to Witness Care in the Courtroom.

What is ADHD?

ADHD was originally identified by a UK Doctor in 1902, but is still relatively unknown in this country!  Essentially it is a biological problem caused by a chemical imbalance in the brain and, as a biological problem that cannot be seen, is a hidden disability.

It is, however, recognised internationally as a disorder adversely affecting behaviour.  Accordingly the ratio of those coming into contact with the Criminal Justice system and subject to prison sentences with ADHD is thought to be disproportionately high.

There are three main types of behaviour that a person with ADHD may exhibit, namely 

  • Inattentiveness
  • Hyperactivity
  • Impulsivity

A person with ADHD is more likely to exhibit this sort of behaviour when under pressure.  Given that contact with the criminal justice system can create pressure, it is more likely to be apparent when he or she comes into contact with any part of it.  So from initial contact with the police to charge, first appearance in court to final decision and, on conviction, from the imposition of the sentence to completion of it ADHD may manifest itself as follows:

Inattentiveness

A person with ADHD:

a) Often fails to give close attention to details or makes careless mistakes

b) Often has difficulty sustaining attention for long periods

c) Often does not seem to listen when spoken to directly

d) Often does not follow instructions, not due to defiance or a failure to understand instructions

e) Often has difficulty organising tasks and activities, including thoughts and responses to complicated questions

f) Often avoids, dislikes or is reluctant to engage in tasks that require sustained mental effort

g) Often loses things necessary for tasks or activities and is disorganised

h) Is frequently and easily distracted by extraneous stimuli, and struggles to return to the original task

i) Is often forgetful in daily activities

Hyperactivity

A person with ADHD:

a) Often fidgets with hands or feet or squirms in seat

b) Often seeks to leave their seat in classroom or in other situations in which seating is expected

c) Often runs about or climbs excessively in situations in which it is inappropriate (in adolescents or adults, may be limited to subjective feelings of restlessness)

d) Often has difficulty engaging in activities quietly

e) Is often ‘on the go’ or acts if ‘driven by motor’

f) Often talks excessively and is easily led in conversation

Impulsivity

A person with ADHD:

a) Often blurts out answers before questions have been completed

b) Often has difficulty waiting their turn

c) Often interrupts or intrudes on others (e.g. butts into conversations or thoughts).

What about treatment and medication?

ADHD cannot be cured, but with an affective combination of social support, structured lifestyle and, where appropriate, medication, ADHD can be treated and many people with ADHD lead productive lives. 

The most commonly prescribed medical treatment for ADHD is in the form of a Class B drug, methylphenidate, appearing under the brand names of Ritalin, Ritalin SR or Concerta. There is also a non-stimulant drug called Strattera. These drugs are prescribed by either a GP or a psychiatrist / paediatrician and those to whom it is prescribed are entitled to carry it and should, in the interest of justice, be allowed to continue taking it throughout the legal process even if held in custody.  It will aid co-operation, understanding and compliance. 

What can those involved in the criminal justice system do to assist the person with ADHD attending as a witness or defendant?

A person with ADHD may exhibit one or all of the above difficulties throughout the criminal justice process.  He or she can be helped by:

  1. Ensuring that, where necessary, an appropriate adult attend with him or her
  2. Using language that he or she can understand
  3. Checking that he or she has taken any prescribed medication and, if necessary, allowing him or her to take such
  4. Keeping to appointment times and avoiding him or her waiting for long periods
  5. Reading back anything you have written or repeating that said
  6. Satisfying yourself that he or she understands all that is going on
  7. Taking appropriate breaks in the appointment, proceedings or evidence

A person with ADHD has great difficulty organising their thoughts and attending to detail.  They can rarely organise themselves well enough to get to appointments or court proceedings on time.  Short-term memory problems mean that firstly they will forget the time, date, and venue of an appointment.  Secondly, if they do remember, they will begin the journey at the time they should be there.  He or she can be helped by:

  1. Telling him or her to attend 30 minutes prior to the time of the appointment or proceedings and, as a consequence, building a period of tolerance were he or she to be late. 
  2. Engage their appropriate adult to take note of the date, time and venue of any appointment or court appearance.

A person with ADHD has problems with complex, verbal language and understanding facial and body language. They act and speak impulsively and because they may be agitated by their current situation will try to tell you everything at once.  He or she can be helped by:

  1. Being clear in your speech and intention and talking calmly
  2. Asking single questions that are not leading along a predetermined pathway
  3. Avoiding unnecessarily repetitious, irrelevant or confusing questions 
  4. Breaking up the questions asked (in interview, at any appointment or in court) into pre-determined time scales such as, background history, what happened immediately before the event, what happened at the event and what happened after the event?  Further subdividing that relating to the interviewee and then again for others who may have been involved.

A person with ADHD, talking about an issue, may very well wander off the track and leave the situation confused.  He or she may be helped by:

  1. Allowing him or her to practice what they want to say in advance of doing so.

People with ADHD are prone to exaggerating any story to improve their own part in it.  This is to counteract their very low self-esteem but can of course implicate them deeply in something that they had either no part or only a minor part in.  He or she can be helped by

  1. Careful questioning to accurately gauge the extent of their involvement.

What about sentencing those with ADHD, what should be considered?

In any case the court’s task on sentence is, through a process of reasoning, to make an Order (or Orders) which is:

  • A proportionate response to the persistence and seriousness of the offending
  • Is an intervention which in its judgement tackles the factors associated with the child or young person’s offending behaviour and is most likely to prevent further offending
  • Has proper regard to the offender’s welfare

The process involves answering a number of core questions:

The Offence

How serious is the offence?  Does anything aggravate it?  Are there any associated offences to consider?  Does anything mitigate it?  Is it a sexual or violent offence?  Is there a serious risk of harm to the public?

The Offender

What are the circumstances of the offender, including any mitigating factors?  What welfare issues are there?

The Options

  • Is the court required to impose a specific order e.g. referral order?
  • What is the risk of this young person offending again?  What intervention should the court consider, which in their judgement, based on all the evidence and reports (including view expressed by the offender and parents) is most likely to prevent this particular young person from offending again?
  • Is the intervention, which the court has in mind an appropriate punishment in the sense of being proportionate to the seriousness and persistence of his or her offending behaviour?  Are the thresholds for community sentence/custody met 

The Order

Subject to proportionality (seriousness) and welfare (where there are specific issues) is the Order the best option for preventing offending?

In this process the fact that the defendant has ADHD is one of a number of factors to be considered.  It is certainly relevant to those questions relating to the offender, the options and the order.

In this regard it is interesting to note that those with ADHD are accustomed to punishment. Because of the nature of ADHD they will have been getting it wrong in every way, all of their lives.  Not necessarily in a criminal way but probably in every other way! 

They will have been punished consistently all of their lives and become more and more accepting of it.  It is hard to punish someone who expects to be punished and adapts to whatever penalty is on offer.

It goes without saying that if, having regard to its task and answers to the core questions outlined above, the order of the court for a defendant with ADHD requires a punitive element then one should be imposed.    Having said that in relation to the specific orders available to the Youth Court it can be observed that:

  • Fines, costs and compensation:

The general principle that parents or guardians have responsibility for the payment of financial orders remains.  Having said that if the parent also suffers from this disorder he or she will, along with other problems, have great difficulty managing money.  They will invariably be using some form of addictive material to self medicate be it cigarettes, alcohol or cannabis and any money they have will first be used for this.  Memory difficulties will also conspire to ensure that fines are not remembered

  • Reparation, Action Plan, Attendance Centre, Supervision, Curfew, Community Rehabilitation, Community Punishment, Community Punishment and Rehabilitation and Drug Treatment and Testing Orders: 

These will have a beneficial effect on the offender.  An order might specifically recognise that he or she has ADHD and provide the sort of structured intervention that would help to alleviate its problems.  It may provide an opportunity for the offender to seek out regular medical help from professionals experienced in their disorder

However, as indicated, those with ADHD lack organisation skills and have difficulties keeping appointments.  They will either be two hours early or two hours late: that is if they remember at all!  They often set out for an appointment at the time they should be there.  Or they will arrive on time but on the wrong day! 

  • Detention and Training Orders: 

The Detention element can give the structure and security that someone with ADHD will crave BUT it could be a harsh environment in which they may not receive medication.

So, in a nutshell

ADHD is not easy, it’s not easy for the carers, parents or teachers that assist young people with ADHD.  It’s certainly not easy to run an effective court when there is a witness or defendant who has ADHD.  But spare an additional thought.  Having ADHD is not easy either.

With forethought and special considerations where appropriate, the chances of a successful rehabilitation for a person with ADHD who is an offender can be greatly increased.

ADHD should never be used to excuse anyone’s behaviour, but it may well explain someone’s behaviour, if we are prepared to listen.

Download the criminal justice pdf here

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