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If your case involves being convicted of an offence, then the court will have to decide what sentence should be imposed. This might be a discharge, a fine, a community order, a suspended prison sentence or jail time. A neurodivergent condition will always be relevant, but how and why such a condition makes a difference will differ significantly. Firstly, the court will require good quality, up-to-date information. This will usually come from a range of sources, describing not only the condition but also the manifestation of that condition such as is relevant to the court decision. Medical or professional opinion or diagnoses might be part of this information. Often overlooked is the more direct experience of family, friends, colleagues and other professionals.
For example, an ability to mask a condition might be a real strength in some social situations, but a potential weakness in a criminal justice context. Secondly, the court will need to consider whether the neurodivergent condition reduces the culpability or blameworthiness of the offender. The Court may ask whether, at the time of the offending, the impairment or disorder impaired their ability to exercise appropriate judgement, to make rational choices and to understand the nature and consequences of their actions. Sometimes questions of disinhibition, medication or self-medication and insight, or lack of insight, may arise. Thirdly, the Court will need to consider the impact of a condition or impairment on the sentence otherwise under consideration. For example, a prison sentence may be more onerous than for someone without the presentation in question.
Finally, experience shows that neurodiversity can be poorly understood and factored in risk assessment. A court must always understand the risk posed by an offender, the risk that they will offend again or that they will cause harm to themselves or another. Risk assessment is a necessarily complex task, made all the more so by a neurodivergent condition. Many risk assessment tools used by Probation are poorly (if at all) adapted and we routinely encounter ignorance and prejudice. The neurodivergent defendant should be supported to confront and address these concerns when the issues arise.
Latest Sentencing Guidelines Insights
e-Bulletins •
20/10/2021
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13/10/2021
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