Making Headway: improving the criminal justice system for those with brain injuries

Chloe Birch considers the problems faced by defendants who have these invisible disabilities which are often undiagnosed.

Imagine you are pulled over by the police whilst driving your car. The anxiety and stress of the situation makes your mind go blank and your brain quite simply forgets to tell your mouth how to articulate words. What you hope are words come out a bit slurred or slightly babbled. The police think you might be drunk. They arrest you for drink driving. The stress is overwhelming. You are taken into police custody where your brain has become completely unable to process information. The frustration at not being able to say what you want makes you unhappy. Fraught words come out and the police get cross with you. You can’t engage with the drink driving procedure. After a short while, the amount of energy it is taking to try and maintain any sort of focus makes you overwhelmed with fatigue and your brain just isn’t hearing anything anymore. You’re in a police cell. You’re in a Court. You don’t look like anything is wrong with you. But you’re meeting new people who don’t know that it takes 15-30 seconds for you to be able to respond. And so, they just keep asking new questions – trying to find one that you answer – before you’ve processed the last one. And so now you’re lost because you were trying to answer the one before. No one can make any sense out of you. You aren’t able to say, “I have a brain injury and I just need to stop before I can answer you”. Next thing you know you’re having a criminal trial.

This seems like a story, but it is in fact an actual case.

As practitioners, we are all too familiar with words like schizophrenia, addiction, and depression. We can see, understand, and facilitate physical adjustments that might be required during Court proceedings.

But what about invisible disabilities? What about Acquired Brain Injuries (ABI)s?

ABIs are often the result of trauma (including road traffic accidents or severe falls), stroke, brain tumours, assault or domestic violence. Just last month, I represented someone who in 2013 had been attacked so horribly that he had required extensive surgery to his skull and had suffered brain injury to his frontal temporal lobe. But what do those words mean – and how did that affect him as a person and him as a defendant? How did that affect how he acted during the offence for which I represented him? How might it affect his communication with Probation, any sentence he might receive, and how did it affect what he understood of the hearing we were having?

A staggering 60% of the adult male prisoner population have had some sort of traumatic brain injury or head injury. Hospitalised Head Injury was found in one in four prisoners. 
64% of the women at HMPYOI Drake Hall have a history indicative of brain injury. 62% of those had suffered a brain injury as a result of domestic violence. Despite these statistics, the first study into prisoner brain injury only took place in 2019, with its findings confirming that no mandatory routine screening for brain injury was taking place in UK prisons.

Head and brain injuries can have a range of invisible impacts to cognitive ability. Brain injuries manifest themselves in different ways for different sufferers who may struggle in communicating, regulating emotions, with personality changes or memory recall. They may struggle to process information or take time to be able to respond, may appear to be evasive or unclear, or may be plagued by fatigue that affects their concentration and engagement after seemingly short periods of time. All of which are elements of demeanour which may be judged or scrutinised by police officers or tribunals of fact.

Comparing prisoners with and without history of a brain injury The Disabilities Trust report found that those prisoners with a history of brain injury showed higher rates of aggression, apathy, memory problems, disinhibitions, higher levels of anxiety and depression, and reduced executive functioning. All of these, they said, impacted on the individual’s ability to engage in offence-related rehabilitation and as such contributed to patterns of re-offending.

If 60% of prisoners have suffered a traumatic brain injury, then collectively as practitioners we have all dealt with someone somewhere who has suffered one. Were we aware? How did we deal with it? What expertise did we seek and rely on? What adjustments did we make for our client?

Progress is definitely on the cards. The new Sentencing Guideline ‘Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments’, does specifically include Acquired Brain Injury in the Annex A list of “main classes of mental disorders and presenting features”– and this is an extremely useful resource in highlighting brain injury as something which must properly be taken into account by tribunals at sentence, and reductions made as a result.  But, as it rightly says, “the cognitive, psychological, emotional and behaviour effects of brain injury can be difficult to detect by those without specialist training’.

And that is sentence. Shouldn’t we be doing much more to ensure that such cases don’t get to sentence where that isn’t appropriate? What can we do to identify and divert clients with ABIs at the police station stage? Are police officers and custody staff putting the right adjustments in place (and if they aren’t, what exclusionary remedies are there in the later proceedings)? A common impact of brain injury can be disinhibition: could we be reviewing whether those with brain injuries could in fact form the mens rea of any offence(s) charged? Can we ensure that reports are obtained from neurologists, neuro-psychologists, speech and language therapists, or occupational therapists about the manifestations of any such injury? Could written representations be made a result? Should psychologists or intermediaries be engaged to ensure proper adjustments can improve and ensure our client’s effective participation and engagement in proceedings – as well as how they are perceived by tribunals and juries?

Recognising the staggering statistics of defendants who suffer from traumatic brain injury (some 42% of those in their District Courts), New Zealand now operates a new specialist Court for young adults aged between 18-25 years old, as part of which neuropsychological research is taking place into adults with traumatic brain injury. Learning from what he refers to as “the brain science”, Principal Youth Court Judge, John Walker, makes the stark comparison: “If you had someone appearing in your Court who couldn’t speak English, the very first thing you would do as a matter of fairness is provide an interpreter”. As a result, the Court undertake neuropsychological assessments in order to screen for brain injury in young adolescent defendants, so that they can better accommodate ‘barriers to participation’ throughout the justice process. Some pretty inspiring work. You can hear more about this project among other brain injury research in Joshua Rozenberg’s excellent ‘Law in Action’ podcast here.

Meanwhile, back in England, the charity organisation and brain injury association, Headway, have launched a Justice Project, which aims to raise awareness of the impact of this hidden disability for those coming into contact with the criminal justice system. Their work includes ensuring those with brain injury have legal representation, as well as training police forces and Probation Staff to increase awareness and understanding of brain injury and its effects. It is easy to see the importance of ensuring that brain injury is formally dealt with as a topic in Pre-Sentence Reports.

To provide visibility to brain injuries, Headway have launched a Brain Injury Identity Card which can be worn and which identifies the key ways that an individual’s brain injury might manifest itself. In 2018, Headway surveyed those who used the card. Their responses are hugely insightful about the way the physical card provides immediate legitimacy and understanding of some of their resulting symptoms – and indicate how vital this Scheme could be in criminal proceedings.

Some of the anecdotal responses were eye-opening:

“I was taking an item of clothing back to the shop…I was struggling with speech
and auditory memory. The shop assistant didn’t understand what I was trying to do and started insinuating ‘I’d found the bag with the item and tried to return for the money’. I started crying as I couldn’t explain myself and the communication was getting lost. So… I showed the shop assistant the card and then he was
more helpful finally”. (Page 10)

“I had to give a statement regarding an incident I was involved in. I had a solicitor with me, but felt that showing my card would be helpful… It made the officer aware of the fact that I wasn’t being difficult, or evasive, when I asked for clarification of some questions.” (Page 10)

“I presented my card to the police when a woman accused me of drink-driving because I was wobbly on my feet.” (Page 10)

“In a doctor’s appointment, the doctor started talking too fast and was using abbreviations… I asked them to stop and showed my brain injury card. They got the message.” (Page 12)

As criminal practitioners well-versed in undertaking the extended roles of social workers or mental health nurses, we now need to expand our repertoire to include brain injury in our everyday mental and physical health assessment radar. It is clear to see what an immeasurable difference would be made to individuals arriving in police custody or Court cells if their invisible disability was made visible, or for those who enter the witness box or a police interview with a legitimate context to their communication or demeanour. Screening offenders young and old for traumatic brain injury is just as important as screening for physical or mental health difficulties. We as a profession have a duty to make headway where we can.

You can read more about the fascinating and invaluable work of the Headway Justice Project here.

Chloe Birch is one of Carmelite’s newest junior tenants.  She has a busy practice as a junior alone and led junior, often representing vulnerable defendants (link). She is Vice-Chair of Women in Criminal Law, and a Middle Temple scholar.