Across Europe, neurodivergent individuals continue to face systemic disadvantages in criminal justice systems that fail to recognise their specific needs and provide the necessary support to enable them to participate meaningfully in the criminal process. Neurodivergent individuals are more prone to experiencing mental health issues, particularly when placed in stressful environments such as police custody, courtrooms, and prisons. In fact, neurodivergent individuals are particularly vulnerable to mental health challenges in unsupportive settings. That is why during European Mental Health Week, Fair Trials is calling for transformative change in how courts identify, assess, and support neurodivergent individuals.
Imagine being on trial for a crime and not fully understanding what is happening. The words being used are unfamiliar, the setting is intimidating and people expect you to respond quickly and clearly, but your brain works differently. Now imagine that the outcome of that trial might change your entire life. For many neurodivergent individuals – people with autism, ADHD, Tourette’s syndrome or learning disabilities – this is their reality when they enter the courtroom. Accommodating these individuals doesn’t give them an unfair advantage; it levels the playing field to ensure equality and access to a fair trial.
According to a publication in The British Journal of Psychiatry, neurodivergent individuals are described as “individuals whose selective neurocognitive functions or neurodevelopmental differences fall outside prevalent societal norms”, in other words, their cognitive functioning differs from what is considered “neurotypical”. The ‘social model’ used by the United Nations Convention on the Rights of Persons with Disabilities (CRPD) describes a person as disabled when societal barriers prevent them from full participation in society, even if their neurological differences themselves are not impairing. Under this model, many neurodivergent people are considered disabled, not because their brain works differently, but because the world is designed for neurotypical people.
Legal assessments still tend to focus on whether these individuals are “fit to stand trial,” rather than identifying and removing the specific barriers that prevent effective participation. Many neurodivergent defendants are unaware of their rights, and legal professionals often lack a full understanding of their needs and training on how to provide appropriate accommodations. In practice, support for these people often depends on individual goodwill from legal professionals who can recognise their needs and know how to respond. However, ensuring fair trial rights for persons with disabilities is not a matter of discretion – it is a legal obligation under international human rights law.
Article 13(1) of the CRPD obliges states to ensure access to justice by providing reasonable accommodations, adjustments and supports tailored to individual needs by removing barriers to participation. In addition, Article 13(2) mandates the training of justice professionals to be aware of and responsive to the rights and needs of persons with disabilities. Despite these legal safeguards, few EU countries have legislation that explicitly guarantees reasonable accommodations, adjustments and tailored support for neurodivergent individuals. These gaps in both law and practice continue to deny many individuals the fair trial rights.
The Validity Foundation, an international NGO focusing on securing equality, inclusion, and justice for people with psychosocial and intellectual disabilities, released the ENABLE Model Bench Book, which was developed through the European ENABLE Project. The book offers practical tools for judges and lawyers to implement the changes needed to give effect to the international legal obligations under Article 13 of the CRPD, namely; procedural accommodations.
Procedural accommodations are necessary modifications and adjustments that ensure persons with disabilities can participate effectively in legal proceedings on an equal basis with others. Despite a prevailing misconception that such accommodations are costly or difficult to implement, a very recent study conducted by the Neurodivergence in Criminal Justice Network (NICJN) shows how many solutions are both affordable and straightforward. For instance;
Communication barriers can be removed using visual aids or diagrams explaining procedures, providing step-by-step guides of legal processes, simplifying language, breaking down complex questions or offering mock walk-throughs of interviews or court hearings.
Environmental barriers can be removed through providing access to low-stimulation spaces such as quiet waiting rooms, allowing use of sensory tools (like fidget toys or stress balls), adjusting lighting, controlling noise levels or permitting comfort items during interviews or detention.
Procedural barriers can be removed through allowing extra time for procedures, taking frequent breaks, providing a clear agenda on what to expect, involving support persons (like family members) to assist with navigation or by offering alternative formats for interviews (e.g. written instead of verbal).
Without these adjustments, neurodivergent individuals may struggle to follow proceedings or respond appropriately, compromising their right to a fair trial.
These examples go to show that legal practitioners can do more to be proactive in accommodating neurodivergent individuals. The ENABLE Model Bench Book offers practical guidelines to follow, which ensure defendants receive the support they need. Legal professionals should identify support needs early, ideally at first contact. Professionals should directly consult with the individual to understand their specific challenges and document the barriers they face. This should lead to an individualised accommodation plan tailored to their needs. Importantly, these accommodations must be flexible, reviewed regularly throughout the proceedings, and evaluated for effectiveness after the proceedings end. In addition, the Advocate’s Gateway provides 20 toolkits for guidance on communicating with vulnerable witnesses and defendants to ensure high ethical and professional standards are maintained in the questioning of vulnerable people in justice settings.
While the European Commission’s Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (OJ C 378, 24.12.2013) is a step in the right direction, its non-binding nature means that it lacks legal enforceability. There is an urgent need for an enforceable Directive that upholds the rights of neurodivergent individuals. To achieve legal reform, procedural accommodations must be embedded in EU and national legislation to ensure that consistent and effective safeguards are implemented across the EU.
As we mark European Mental Health Week, it is vital to recognise that the failure to provide procedural accommodations for neurodivergent individuals in the justice system is not just an oversight, it is a breach of international human rights law. Without tailored supports, many defendants are unable to understand or participate in their own trials, increasing the risk of injustices and increasing existing mental health challenges. This undermines the very foundations of a fair and equal justice system.
At Fair Trials, we believe that everyone deserves equal protection under the law. A system that disregards the needs of neurodivergent individuals is one that actively excludes them. It is no longer acceptable to treat accommodations as optional. While we continue to advocate for binding and enforceable legislative reform, we also call on legal professionals to take proactive steps by recognising when support is needed, to implement adjustments when necessary and to centre dignity and understanding at every stage of the legal process.
This article was written by Angelica Vieira, a member of Fair Trials’ European Impacted Persons Advisory Council (EIPAC) and a lawyer. Edited by Ángela Rodríguez, Fair Trials Communication Officer.
