ADHD as a defence needs to be taken seriously and to scoff would do all concerned an injustice, writes KentOnline’s crown court reporter, Julia Roberts…
For such a small word – or acronym to be more precise – it provokes a huge reaction among readers whenever it’s mentioned in a court story.
ADHD, or attention deficit hyperactivity disorder to give it its full name, appears to attract more ‘bad press’ than anything else that may be used in defence of a criminal.
As one reader recently commented on a story about a drug-driver who had run over a police officer carrying out speed checks: “ADHD should never be an excuse to commiting a crime.
“The courts should throw out any mention of ADHD as a defence. Or at the very least, if used as an excuse, should be put into a psychiatric hospital and be tested for it to prove that they indeed have this condition.”
Another on the same article asked: “Is there any criminal that doesn’t (claim) to have ADHD?”, while a third was a little more hard-hitting, saying: “I know at least 20 people with ADHD who don’t go around stabbing people, running people over with cars and trying to bite police officers. In fact most of them are quite nice, if a little quirky at times. Stop using ADHD as an excuse and take responsibility for your bad behaviour.”
Barristers also come in for a lot of flak from commentators for ‘daring’ to even mention their client has an ADHD diagnosis.
But perhaps it’s time to put the record straight because the condition is in fact a recognised mitigating factor that must be considered by the judiciary when sentencing.
It is accepted that a mental disorder or learning disability – including ADHD, low IQ, autism and Asperger’s – can affect the offender’s culpability for the crime as well as the impact any punishment imposed may have.
For example, when looking at culpability, the court will need to consider whether a condition such as ADHD impacted on the defendant’s impulsivity, and/or self-control, and understanding of the consequences of their actions.
Of course, any voluntary behaviour by the offender which exacerbates their actions, such as the use of illicit drugs, abuse of alcohol, or choosing not to take prescribed medication for that condition, will also be taken into account.
With deciding the appropriate punishment, the court will look at whether a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.
And highlighting ADHD in mitigation is not a new fad, either. The new guideline for dealing with what was described as a “difficult and complex” legal area came into force four years ago following consultation by the Sentencing Council and with the aim of providing clarity and transparency around the sentencing process for offenders with mental illness, developmental disorders and neurological impairments.
It is accepted however that levels of impairment caused by any condition will vary significantly between individuals, and while the fact an offender has an impairment or disorder should always be considered by the court, it will not necessarily have an impact on sentencing.
For serious offences, in particular, the court must also bear in mind the protection of the public.
When the guideline was introduced, Sentencing Council member Her Honour Judge Rosa Dean remarked: “At a time when courts are seeing increasing numbers of offenders with mental disorders, this guideline will be of real assistance in sentencing in this area where no formal guidance existed previously.
“The guideline will make sure that courts have the relevant information when sentencing offenders with mental disorders to make sure their rights and needs are balanced with protecting the public, and the right of victims and families to feel safe.”
The Lord Chief Justice of England and Wales, and president of the Sentencing Council, Lord Burnett of Maldon, greeted the guideline as “an important and welcome step forward in helping judges and magistrates take an informed and consistent approach to sentencing in this difficult and complex area”.
“Cases involving these issues are increasingly common and it is important that the criminal courts are alive to the implications of mental disorders and neurological impairments when sentencing,” he added.
Will Johnstone, policy manager at Rethink Mental Illness also welcomed the provision of “much-needed additional clarity in the sentencing process when mental illness may be a factor”.
He said: “The complexity of many of these cases has meant that it hasn’t always been easy to apply the law in a consistent way in the past.
“We welcome the introduction of these guidelines, as they reflect how far the justice system has progressed in its understanding of mental illness.
”So, ADHD is not the automatic “get out of jail” card many may perceive it to be. Nor is it ever put forward by barristers as “an excuse”.
What it is is a legitimate and relevant factor in deciding the appropriate sentence – and should not be scoffed at by readers.
