Communicating difference: the importance of strong representation at the police station for neurodivergent children

In 2014, during an independent inquiry into the operation and effectiveness of the youth justice system, Lord Carlile recommended that all children should be represented by specialist youth justice lawyers at the police station. Ten years later, we are still waiting for this recommendation to be introduced.

As the police remain the lead agency in any youth crime investigation, the process continues to revolve around the police interview. Therefore, effective representation at the police station is critical especially if the child being questioned is neurodivergent.

At present, there is no universal training or guidance provided to the police regarding neurodiversity. This inadequate training coupled with the lack of an appropriate screening process when a child first comes into contact with the criminal justice system means that it is frequently left to individual police officers to identify and adapt to the needs of neurodivergent children.

This is particularly problematic when police officers themselves have reported low levels of knowledge and confidence in understanding neurodiversity[1]. Both the Police and Criminal Evidence Act (which governs most aspects of police conduct and procedure during investigations) and The Equality Act 2010 place a responsibility on the police and other participants in the Youth Justice process to ensure that the needs of neurodivergent children are identified and met.

There are three aspects to police interviews which need to be considered:

1. The conditions under which a police interview is carried out;
2. The standard interview techniques used by the police; and
3. How a neurodivergent child’s responses may be interpreted by the police.

1. The conditions

The conditions under which the police conduct an interview may not be conducive to a neurodivergent child being able to give their best evidence. For example, many children with ADHD suffer from symptoms of hyperactivity and/or inattention. This may make it more difficult for them to engage with the interview process, particularly if it is long or complex.

Likewise, autistic children may struggle with adapting to being interviewed in an unfamiliar location which is not suitable given their condition. For instance, it can be extremely dysregulating if an individual, particularly if they are a stranger, is sat too close to an autistic child.

Similarly, where interviews are unplanned, follow an arrest or take place without any familiarisation, the challenges increase exponentially and the opportunities for the child to effectively participate diminish to nothing.

The ADHD Alliance and National Autistic Society have both produced helpful guidance on potential reasonable adjustments which could be made to accommodate a neurodivergent child’s needs. Some examples include:

1. Regular breaks;
2. Sensory stimulation, such as fidget toys;
3. Changing the location of questioning;
4. Consistency, such as the same routine of questioning; and
5. The timing of questioning, for example, during a time in the day when concentration may be better.  

2. Standard police interviewing techniques 

Standard police interviewing techniques which have been developed for neurotypical people are arguably inappropriate to use when interviewing neurodivergent children. For instance, research has suggested that individuals with ADHD are:

• More likely to behave disruptively during an interview due to difficulties with emotional regulation exacerbated by stress; [2]
• More susceptible to making false confessions[3]; and
• More likely to respond with vague answers, such as “I don’t know” to police questions which could be misinterpreted as dishonest, uncooperative or non-compliant[4].

Similarly, disclosure of key documents shortly before or during a police interview causes significant issues for children with a specific learning disability, such as dyslexia. These conditions can affect a child’s ability to process written information making it difficult to take meaningful instructions in a high-pressure environment.

Likewise, research has indicated that the use of open-ended questioning which is favoured in police interviews is problematic for children with autism[5]. For instance, autistic individuals tend to struggle with their episodic memory meaning that they have difficulty recalling specific events in a sequential manner in sufficient detail without being prompted[6]. A lack of detail or subsequent inconsistency with a later account may mean that it is concluded that they were lying during their police interview.                                                         

3. Risk verses neurodivergence

Indeed, there are a number of behavioural traits which may be manifestations of a child’s neurodevelopmental condition that can be misinterpreted by the police. For example, children with autism may struggle to portray outward expressions of emotion. It is possible that their expression would not change throughout a police interview even if they were confronted with shocking or upsetting allegations. This may lead police to conclude that these children are bored, calculating or remorseless because their body language and facial expressions are not conveying what they are feeling internally[7].

Moreover, some young people with autism may have a ‘special interest’ in something which is unusual. A ‘special interest’ is an intense focus on a specific topic which usually helps with emotional regulation. If a child has developed a ‘special interest’ in firearms for instance, this is likely to be viewed through a risk lens by the police or another professional assessing the child rather than considering it as a part of their neurodivergence.

How can we help?

Our specialist youth justice team is experienced in providing robust support at the police station and can assist by:

• Maximising pre-interview disclosure;
• Corresponding with the police to request that a child is not arrested, or if a child has already been arrested, making representations that the child be de-arrested;
• Requesting that reasonable adjustments are put in place for a police interview e.g. securing agreement to be provided with a copy of the interview disc so that there is no need to type a note during the interview;
• Ensuring the presence of an Appropriate Adult;
• Liaising with the police to avoid a child being released under investigation where it is evident that there is no evidence against the child and the ultimate outcome will be no further action is taken; and
• Making representations to the police that no further action should be taken on the basis that the child’s behaviour, once properly understood, means it is not in the public interest for an investigation to be pursued or that an alternative method of disposal would be appropriate which results in the child being diverted out of the criminal justice system.