Your client, intermediaries and ‘invisible’ Autism

Here’s a question that we regularly deal with as solicitors or advocates: is it possible my client needs an intermediary?

The answer might be ‘yes’ if your client is autistic. We don’t often think of asking a second question: how do I know if my client is autistic?

That’s because many autistic clients come to us having received a diagnosis when they were young. The purpose of this article is to encourage you to think about the other clients – the ones who are autistic but undiagnosed; the ones whose disability is truly invisible.

To begin by stating the highly obvious, if you can identify a client whom you suspect to be autistic, you can refer them to an expert for assessment. In the event of a positive diagnosis there are several benefits which will impact your client as a person, as well as their case.

First, your client will receive a foundation from which they can begin to understand how to live optimally in a society that isn’t geared towards them. That may not directly impact their case but, on a humanitarian level, it’s a pretty profound thing.

Second, you will have a basis from which you can formulate the means to take accurate instructions and reliably communicate your advice.

Third, an intermediary can be instructed to assess the client and make recommendations for the conduct of the trial.

Finally, in the event of a guilty plea or verdict, there will be mitigation available too.

So, how do you identify the client who may be autistic so that they can be assessed and diagnosed?

I could refer you to the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) but, frankly, if you can apply those criteria to a diagnostic standard, you’re probably not a lawyer!

One also needs to bear in mind that the ‘invisible’ clients that I have in mind have flown under the diagnostic radar throughout their lives, to date. They have ‘passed’ as neurotypical (not autistic) throughout their years at school and in front of medical professionals. They may have even seen psychiatrists and psychologists in the past. All that this tells you is that your client is very adept at masking their autistic traits.

Whilst I’m very much an advocate and have no background in psychology, I seem to have a knack of ‘finding’ these undiagnosed clients. To do this I rely on my own accumulated knowledge of autism (which does include the DSM-V, to be fair), but also a great deal of personal experience. As a consequence of this acquired understanding, I tend to consider autism in clients with a number of the following qualities. I should emphasise that this is by no means a definitive or exhaustive list, as I’ll go on to explain in a moment.

• Alleged offending that has a conceptual element or relates to human interaction (consent, neglect, stalking, an alleged assault with no apparent provocation);
• Alleged offending that involves navigating a unique system of rules (for example, the benefits system)
• Alleged offending that is computer-based (including the possession of indecent images and which need not have a sexual motivation)
• Above average intellect and/or academic attainment but difficulty in maintaining a job;
• A history of multiple failed and/or abusive relationships or a history of being the victim of bullying/coercion/deception
• Alternative relationship styles (polyamory, relationship anarchy and so on) and/or identification as non-binary/gender fluid/gender queer
• Social awkwardness (shyness, abruptness, over- or under-sharing, difficulty in back-and-forth conversation, speaking in ‘monologues’, not picking up on your ‘polite’ – read subtle – cues that you need to end the conference)
• Previous psychiatric diagnoses, often with limited success in treatment and particularly in women (emotionally unstable/borderline personality disorder, depression, anxiety and OCD are the most common ones)
• Diagnosed neurodiversity (ADHD, dyslexia, dyspraxia, dyscalculia or similar)
• Exceptional personal neatness (including expertly applied make-up), gender neutral, comfortable clothing (particularly in those who also identify as women) or a complete lack of attention to personal care despite being someone whom society deems to be ‘clever enough to know better’ (think of the ‘scruffy professor’ stereotype)
• Very strong beliefs or interests which occupy a substantial proportion of the client’s time, energy and/or thoughts. These could be stereotypically ‘geeky’ (computing and science) or less mainstream (the paranormal) or utterly ordinary but very intense (politics, social justice, animal welfare and so on)
• Repetitive fiddling or fidgeting; unusually high frequency of filler sounds in conversation (‘mmm’ or ‘hmm’) or another audible ‘tic’ such as throat-clearing or coughing.

Alternatively, you may just have the feeling that something is ‘a bit off’ or unusual about your client but you can’t quite put your finger on why. That could be because you are not autistic but you are communicating with an autistic person who is adept at masking their autism most of the time. You’re simply experiencing the little bits of autism that bleed out from behind a mask that is stressful and tiring to maintain. Don’t ignore your own gut impression without analysing it closely first.

Once you have decided that your client should be assessed, and have carefully obtained their consent, it is important to find a psychologist who has experience of assessing adults and, in the case of women, understands the female autism phenotype (the particular way in which autistic women can present – this is a very new area in which research is still ongoing). It’s also worthwhile adding a request that the expert consider whether further assessment by an intermediary would be appropriate. Not all autistic clients will require an intermediary but, given that you are representing someone who has potentially masked their autism successfully thus far, always assume that they are concealing their challenges very, very effectively.

Once your client has received a positive diagnosis and the psychologist has said that an intermediary assessment would be beneficial, what next? Registered Intermediaries are only available to prosecution witnesses and are allocated via the Witness Intermediary Service.

Thus, intermediaries for defence witnesses/defendants are all ‘unregistered’ but not necessarily less competent or less qualified. They can be instructed via one of at least two private companies who cover England and Wales. Annex A and B of the Registered Intermediary Procedural Guidance Manual provides useful guidance as to the areas that you should instruct their report to address.

Once the report has been acquired and the intermediary has made their recommendations, it may be appropriate to make an application to the court. This is done on the basis of the court’s inherent powers, as per C v Sevenoaks Youth Court [2009] EWHC 3088. Rule 18.27 of the Criminal Procedure Rules 2020 also applies. It is extremely rare for the court to grant a defence application for an intermediary to attend on the defendant throughout the whole trial. If the intermediary is permitted to assist the defendant at all, it is ordinarily allowed only whilst the defendant gives evidence. You may therefore be tempted to wonder, ‘Why bother going through all of this identification process anyway?’.

It is vital to bother for one very important reason, aside from the obvious one of collecting mitigation: the intermediary’s report is most commonly used to inform a ‘mini ground rules hearing’ at the start of the trial. It is the tool that you should employ to advocate for rest breaks, clear and simple questioning, time set aside to explain what has happened in court (which is very different from a rest break and the two should be kept separate and distinct) and a comment to the jury, at the start of the trial, about your client’s autism diagnosis. This final accommodation will ensure that the jury do not gain a misleading impression of your client’s demeanour as a result of a lack of visible emotion, fidgeting and so on.

Given that the defence intermediary is invariably absent in court, it therefore falls to the advocate to advocate for their client, in the fullest sense of the word. Develop a clear understanding of your client’s ‘tells’ that show when they are becoming overwhelmed or losing concentration and request a break or other adaptation accordingly. It is so important, as a matter of human decency as well as to fulfil our professional duties, that we do not allow these clients to become invisible again once they reach the courtroom.

By Charlotte Surley

If you would like to consider instructing Charlotte Surley, please contact Robin Driscoll, Senior Clerk to the Public Defender Service Advocacy Team on 0203 334 4253 or Robin.Driscoll@justice.gov.uk.