REFLECTIONS- NOVEMBER 8-12, 2021

A WEEKLY ROUNDUP OF LEGAL & TECH EVENTS GLOBALLY | November 8-12, 2021

THIS IS REFLECTIONS, our weekly roundup of events in the legal and technology sector, covering various topics and interesting learning points for today’s professionals. If you couldn’t make an event, don’t worry, we probably made it and have all the juicy scoop for your reading pleasure and learning.

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EVENT ONE

OBSERVATORY ON HUMAN RIGHTS OF CHILDREN 2021 – LADY HALE

Do children really have rights, rights which other people are bound to respect whether or not they think it is in the child’s best interests?

In the affirmative;

• The child must be given the means for its normal development, both materially and spiritually.
• The child that is hungry must be fed, the child that is sick must be nursed, the child that is backward must be helped, the delinquent child must be reclaimed, and the orphan and the waif must be sheltered and succored.
• The child must be the first to receive relief in times of stress.
• The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation.
• The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men.

It was adopted by the League of Nations as the Geneva Declaration of the Rights of the Child. The UN Convention on the Rights of the Child of 1989 simply spells out those rights in more detail and extends most of the rights granted to all people in later human rights instruments to children as well as adults.

The Universal Declaration of Human Rights of 1948, which is the inspiration for all our modern western human rights instruments, boldly declares that ‘all human beings are born free and equal in dignity and rights.

The principal right of citizenship is to live in the country of which you are a citizen. You may not have the right to live anywhere else. That is why statelessness is such a disability that there is no power to deprive a UK citizen of his citizenship if he will be made stateless as a result. The right to live here brings with it many other rights, to education, health services and welfare benefits, so it is a very valuable right.

There is a difference between children’s rights and children’s welfare. It also illustrates a gap in the coverage of the UN Convention. Article 7 comes next after the right to life in Article 6, so it is obviously fundamental. It requires that ‘the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. It is worth remembering how important the right to an identity is – the right to be recognized and counted as a human being.

The legislation reflected the state’s legitimate concern to protect younger adolescents as a vulnerable group from making decisions before attaining capacity for truly mature and independent thought.

The conflict between the child’s best interests and the competent child’s right to self-determination. It could be said that no child has the competence to refuse treatment that will save his life or prevent serious harm to his health or development.

EVENT TWO

HOST: CLAIRE ALLELY

TOPIC:  THE AUTISTIC DEFENDANT IN THE COURTROOM: CURRENT ISSUES AND CONSIDERATIONS

INTRODUCTION

The webinar started at about 2:00 pm. The Host gave an overview of how the debate/discussion will be conducted.

DISCUSSION

The Host introduced herself. She is a Reader in Forensic Psychology, University of Salford. She kicked off the programme with a hypothetical case of a male defendant with autistic spectrum disorder (ASD) who is being prosecuted for assault and battery. In her hypothetical case, the defendant was convicted and given the maximum sentence. But the Judge had asked him questions with a view to determining if he was remorseful for his actions. However, due to his disorder, he could not express himself in a way that showed clearly his feelings in the matter. So, the Host raised a question, amongst others, whether a defendant’s autistic disorder should have been an issue raised in the proceedings.

The Host noted that autistic disorder should not be interpreted as a “get-out-of-jail” free card, but lawyers raise issues as to a defendant’s mental state (i.e., psychosis) in setting up his defense in Court so we can do the same about persons with ASD.

The Host noted that no two individuals have the same autistic disorder.

The Host opined that it is important to consider a defendant’s ASD because it may impair their ability to answer questions put to them by the Judge properly, and such a defendant may then disengage himself from the adjudicating process.

The Host further noted symptoms of ASD and how a defendant suffering from the same can be prejudiced in the adjudicating process. An individual with ASD may find it difficult to remember certain events relevant to his trial. He may not be able to answer questions surrounding the chain of events. Investigators or the Court may misinterpret it as being uncooperative but that is not necessarily the case. Individuals with ASD also perceive time quite differently from regular people, and this can affect their narration of the facts of a case. ASD people also find it difficult to outwardly express emotions. Sometimes, they may speak very loudly and it may be misinterpreted as aggressive behavior but they have no control over that. A person with autism may also not properly understand figurative expressions. The Host further gave instances where a defendant with ASD may behave in ways that commonly have been associated with guilt when that is not the case.

So, it is important to study ASD and how it affects a defendant’s ability to defend himself in court proceedings.

The Host gave situations of how a client with ASD may pose difficulties with his lawyer during the client interview. The lawyer may find difficulties in engaging with the client in consultation. She suggested that in such cases, instead of trying to dominate the conversation, the lawyer should encourage the client to listen and focus.

The Host further restated instances of how a defendant with ASD may be impaired from properly defending himself in Court.

The Host noted that persons with autism tend to engage in certain offending behavior like threats to kill, arson, stalking, sexual offending (both online and offline), and so forth. Such persons may engage in offending behavior without knowing they have done something wrong. In arson, for example, they may be drawn to that behavior because they are so interested in the sensory sensation of smoke without realizing that someone might be harmed by their actions. Also, they may have trouble understanding that people may have different beliefs system from theirs; they may not understand other people’s thoughts and feelings. She added that other psychiatric disorders can add to their offending behavior.

The Host also gave case studies to buttress her points. She narrated the case of a deaf man who compulsively solicited males for sexual acts but this same man had a history of low social skills, no friends, and was unable to maintain a job. He was unable to appreciate how his actions may offend heterosexual males. There was also a case of a man charged for burglary. He was always going to the local laundry mart and watching how the laundry machine would work, with clothes inside. When the local laundry mart was closed, he broke into his neighbor’s house to do the same. He could not understand why he was being charged when he was just observing his neighbor’s washing machine. She narrated other cases too.

The Host noted an important point about individuals with autism – they may not be able to recognize what they did is wrong, but when it is explained repetitively to them, they would then be remorseful for their actions (sometimes overly remorseful. This is different from psychopaths who do not understand the effects of their actions on others regardless of how often you explain it to them.

The Host also noted that some individuals with autism may gravitate towards people with the same mental maturity as them. So, they may not immediately recognize the issues that may arise from such interactions because they have no intention to do wrong. So, we may find an autistic person who is 27 years old, hanging around females between the ages of 14 – 16 years.

People with ASD may also find it difficult in doing a risk assessment of a situation before acting accordingly.

There was a short break of about 8 minutes; afterward, she introduced the next speaker – Felicity Gerry, QC.

Mz Gerry, QC in her presentation stated they (the UK) do not necessarily have the best criminal justice system in the world.

Mz Gerry, QC narrated a case I which she represented a man charged with rape. The defendant was autistic and he had never been allowed to do anything unsupervised by either his mother or his sister. She recalled that during client interview sessions his mother was doing all the answering but they had to inform her that it is her son that is on trial so he has to speak for himself. She noted how difficult it was for her to get instructions from the defendant.

She stated that the whole experience teaches her that it is not the best to simply convict 14 years old of manslaughter without considering how his autistic behavior affected his actions. She also stated that we should also have mercy for people who were convicted years before they were diagnosed. Also, we should be considering rehabilitation and not just retribution in handing down sentences.

Mz Gerry however mentioned a case where at the sentencing stage she addressed the Court and related to the Court how the autistic behavior of the defendant (a 14-year-old) contributed to his offending. And it was the fact the jury took into consideration in reaching its verdict.

The next presenter was Professor Eddie Chaplin. Prof. Chaplin gave statistical information on the prevalence of people with intellectual disorders. He noted that some of the challenges with the data include misinterpretation of symptoms and poor diagnosis. He added that unfortunately the data does not tell us how to prevent repeat offending in people with intellectual disorders but that will be the focus of their next project.

Some facts shown in his data were that with regards to the race of people diagnosed with neurological disorders, about 54% were of white ethnicity; about 22% were of black ethnicity and about 10% were of Asian ethnicity.

Prof. Chaplin also gave an explanation of how the individuals used as subjects in their studies were found; in one case, the subject (a woman) would have been sentenced to prison term had they not intervened.

In summary, Prof. Chaplin suggested that the challenging context of a Court environment needs to be worked on. Neurological disorder practitioners should promote understanding and awareness amongst all staff. Also, timely identification of defendants with neurological disorders is essential.

QUESTIONS/ANSWERS SESSION

An attendee asked whether intermediaries are underused in Court proceedings. Prof Chaplin explained that though they are used, one has to apply for one. Also, such applications are granted/denied on the basis of available resources.

CONCLUSION

In closing, the Host invited the panelists/presenters to make closing remarks. Mz Gerry, Q.C noted that we need to disassociate ourselves from this idea that people with ASD are dangerous. That is not always the case. And such people deserve for their conditions to be recognized. There is a difference between someone who, for instance, put his child at risk due to a moment of mental breakdown, from someone who does the same thing but is motivated by revenge against the child’s mother. If we can see the difference here, then there we can also see the difference with regards to people with repetitive behavior disorders.

Prof. Chaplin noted that at the moment, ASD is not widely seen as an area of specialty. If that changes, then we can see more campaigns regarding ASD issues.

The Host thanked everyone. The webinar ended at about 5:36 pm.