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An overlooked vulnerability in a defendant: Attention deficit hyperactivity disorder and a miscarriage of justice

Gisli H. Gudjonsson* and Susan Young Department of Psychology, Institute of Psychiatry, London, UK

 Aim. To describe the implications of a Court of Appeal murder case involving a 15-year-old youth. His attention-deficit hyperactivity disorder (ADHD) was not identified at trial, but 8 years later it was and his conviction was quashed.

 Method. An analysis of the judgments by the Court of Appeal at an

earlier hearing (1997) and in 2004, together with a review of how the

relatively new diagnostic concept of ADHD, can be employed to aid

assessment of important vulnerable qualities.  Results. One of the primary effects of ADHD in the case was to „affect‟

the IQ scores, making it look as if the defendant was suffering from mental retardation and so masking his other more relevant vulnerabilities.

 Conclusions. ADHD symptoms are relevant to contended issues around

adverse inferences and fitness to plead and stand trial. A comprehensive ADHD assessment, including neuropsychological testing, is necessary where there are indications of a history of childhood ADHD.

Attention-deficit hyperactivity disorder (ADHD) is a common disorder of childhood, which has in recent years, become increasingly recognized as an important neuro- developmental condition (McArdle, 2004). However, according to Timmi and Taylor, (2004), „[m]ost children with marked hyperactivity behaviour are still not identified, referred or treated; yet they remain at risk‟ ( p. 9).

The consequences of the failure to identify and diagnose ADHD are central to

this paper. It is argued that in the criminal justice system, ADHD is a neglected

vulnerability, which can leave a suspect disadvantaged when interviewed by the

police and also during court proceedings. In recent years, there has been an

increased recognition of risks for the defendant associated with psychological

vulnerabilities. These have mainly related to mental retardation (known in the UK

* Correspondence should be addressed to Professor Gisli H. Gudjonsson, Department of Psychology (PO 78), Institute of Psychiatry, De Crespigny Park, Denmark Hill, London SE5 8AF, UK (e-mail: [email protected])

as „learning disability‟), mental illness, and those found to be abnormally suggestible and

compliant (Gudjonsson, 2003).

This case study shows how the failure to identify and diagnose ADHD pretrial

resulted in a wrongful conviction of a 15-year-old youth for murder. The case raises

issues surrounding adverse inferences being drawn from defendants‟ failure to give

evidence (Gudjonsson, 2003). When the Court of Appeal upheld the conviction in

1997, it became the leading case with regard to the issue of „undesirability‟ of

going into the witness box due to mental factors (R. vs. Billy-Joe Friend [1997], Cr.

App. R. 231).

Background On 1st May 1996, in the Central Criminal Court, Billy Joe Friend, aged 15, was

convicted of murder. He stood trial with two others; his older brother, Edward Lee, who pleaded guilty to murder 9 days after the trial commenced, and Ian Birch, who

was convicted of manslaughter. It was alleged that Edward Lee stabbed to death an 18-year-old youth in a flat in south London. The Crown argued that the murder had involved a joint enterprise between Edward Lee and Billy Joe Friend. There

was no forensic evidence to link Billy Joe Friend to the murder, but there was circumstantial evidence. The defence submitted that a jury could not be sure that

Billy Joe Friend had known that his brother had a knife or if he had known about it, could have foreseen the risk that it would be used to inflict serious injury.

Billy Joe Friend exercised his rights to silence during the first two police interviews, but during the third interview, he gave a brief account of his movements. At trial, the defence accepted that what Billy Joe Friend had told the police in the third interview included salient lies (e.g. that he did not know who had stabbed the victims) and this was used against him in court.

No issues of fitness to plead were raised at trial. A voir dire was held on the

issue about the judge‟s direction to the jury under Section 35 of the Criminal

Justice and Public Order Act 1994 if a defendant does not give evidence. Under

Section 35, the jury may, at the instruction of the judge, draw adverse inferences

about the defendant‟s failure to give evidence. However, it is not permissible for the

court or jury to draw such an inference if „: : : it appears to the court that the

physical or mental condition of the accused makes it undesirable for him to give

evidence‟. Shortly prior to the trial, Professor Gudjonsson had been commissioned to

prepare a report on Billy Joe Friend. The defendant was found to have an IQ score

of 63. On testing, his verbal comprehension subtest IQ score fell in the average

range, and he had been able to give a coherent account of himself. However, his distractibility and poor concentration were noted during the assessment. He did not

prove to be unduly suggestible. When Gudjonsson testified during the voir dire, he expressed concern about

whether the defendant could do justice to himself in the witness box, because of

poor intellectual functioning, attentional problems, and distractibility. This advice

was potentially important as attentional problems are likely to be exacerbated when

performing under stress in the witness box. The defence counsel submitted that on

the basis of expert evidence the jury should be directed not to draw an adverse

inference from a failure to give evidence. The judge declined so to rule and

referred to the fact that children as young as 8 years old gave evidence in Crown

Court trials. In his summing up, he clearly directed the jury that it was open to them

to draw an adverse inference from the defendant‟s failure to give evidence.

In 1997, the judge‟s decision was appealed on three grounds and the Court of

Appeal delivered a detailed judgment concerning the weight of the psychological evidence and stated:

„As envisaged in Cowan there was some evidential basis before the judge. Dr

Gudjonsson had written a comprehensive report and gave evidence. This

evidence, impressive as it undoubtedly was, was not conclusive of the issue. The

judge was fully entitled to consider the rest of the evidence in the case including, in

our view, the conduct before and after the offence was committed and the answers

he gave to the police at interview‟ (R. vs. Billy Joe Friend [1997], Cr. App. R. 231,

p. 241).

The case highlighted the fact that there are no formal guidelines as to how to exercise discretion under Section 35. There are no specific tests that can be routinely applied to cases when construing the meaning of the word „undesirable‟. The Court of Appeal concluded that:

„: : : it will only be in very rare cases that a judge will have to consider whether it is undesirable for an accused to give evidence on account of his mental condition‟ ( p. 239). „In the majority of cases there will be evidence that he is “unfit to plead”‟ ( p. 240).

In this case, there were three issues relevant to the jury‟s consideration of adverse inferences: (1) the defendant‟s failure to go into the witness box; (2) the defendant‟s failure to answer questions when first interviewed by the police; and (3) the lies told by the defendant in the third police interview.

The new evidence before the court of appeal In September 2003, the Criminal Cases Review Commission (CCRC) referred the

case to the Court of Appeal. The basis for the referral was a report from an

adolescent forensic psychiatrist who had concluded that although the defendant

had just been found fit to plead, his learning disability, inattentiveness, and

emotional state at the time of the trial would have significantly impaired his capacity

to participate effectively in the trial. This made it undesirable for him to give

evidence. However, this expert did not address the issue of ADHD. According to

the judgment, „[h]ad there not been subsequent developments, to which we shall

come, it might have been more difficult to resolve the appeal : : : We now turn to

the subsequent developments [Young‟s report], which are to our mind conclusive of

the resolution of this appeal‟ (R. vs. Billy Joe Friend, [2004] EWCA Crim 2661, p.

8). The judgment makes it clear that it was the new and positive diagnosis of

ADHD that decisively determined the outcome of the appeal.

This „subsequent development‟ was a report commissioned by the Crown

Prosecution Service (CPS) from an expert on ADHD, Dr Susan Young. Dr Young

carried out a comprehensive neuropsychological and ADHD assessment of Mr

Friend, who at the time of the assessment was 23 years of age. Mr Friend‟s full-

scale IQ score now fell at the top of the borderline range (full-scale IQ ¼ 79), but

the range of other tests carried out showed significant residual problems diagnostic

of ADHD in childhood. At the time of the assessment, Mr Friend was in partial

remission of his symptoms. A considerable number of contemporaneous records

were available from educational services and these clearly documented a history of

ADHD in childhood. Mr Friend‟s salient ADHD tendencies, which were manifest at

the time of his trial, included poor attentional and behavioural control. Attentional

control had been considered at the time of the trial by Professor Gudjonsson,

although its effects in terms of impaired sustained attention over a prolonged

period of time during a trial was not highlighted in his evidence. High levels of

impulsivity had not been reported at trial and, if presented as expert opinion, might have been relevant to how the jury considered Mr Friend‟s known lies in the third police interview, as well as his ability to give considered and reliable answers before the jury.

The Court of Appeal cited Dr Young‟s report in detail, including the following paragraph:

„In his evidence Professor Gudjonsson highlighted Billy Joe Friend‟s general

intellectual impairment as well as his relative intellectual strengths. He drew

attention to the fact that that Billy Joe Friend “was disadvantaged overall to a

significant degree with those specific strengths that he has”. He stated that his

main concern was Billy Joe Friend‟s distractibility; however Professor Gudjonsson

was unaware at the time of the full extent of Billy Joe Friend‟s impairment in

attention and response inhibition. Billy Joe Friend was suffering with Attention-

Deficit Hyperactivity Disorder and his cognitive [intellectual ] deficits were

secondary to his primary problem, ADHD, which was not diagnosed at the time : : :

due to his ADHD (and cognitive deficits being exacerbated by anxiety) and

combined with verbal deficits, it was undesirable for Billy Joe Friend to give

evidence‟. Dr Young further concluded, „for the same reasons, he was unlikely to

have effectively participated in the trial proceeding‟.

Discussion The Criminal Justice and Public Order Act 1994 makes it possible for the court to draw adverse inferences from a defendant‟s silence at a police station and in court. This relates to the failure to mention facts when questioned under caution or when charged (Section 34), from failure to give evidence at trial (Section 35), failure or refusal to account for objects, substances, or marks (Section 36), and failure or refusal to account for one‟s presence at a particular place (Section 37).

Legal advice to a suspect to remain silent when interviewed by the police does

not prevent an adverse inference being drawn under Section 34 if the case goes to

court (Archbold, 2005, pp. 15–422). However, courts will need to give appropriate

weight to mitigating circumstances because there may be good reasons for such

legal advice, such as that the interviewing officer had disclosed nothing or very little

about the nature of the offence against the defendant so that the solicitor cannot

usefully advice his client (Archbold, 2005, pp. 15–422). In addition, in view of a

ruling by the European Court of Human Rights in Condron vs. U.K., domestic

courts will, in any case, need to consider mitigating circumstances for the

defendant‟s silence whether or not this decision was based on legal advice

(Archbold, 2005, pp. 15–432).

Section 58 of the Youth Justice and Criminal Evidence Act 1999 amends Section 34 of Criminal Justice and Public Order Act so that no adverse inferences can be drawn from silence, or failure to provide an explanation, whilst the suspect is detained at a police station, unless he or she has been provided with the opportunity to consult with a solicitor.

As far as Sections 34 and 35 are concerned, there is an important difference

between these two sections (R vs. Gill [2001], 2 Cr. App. R. 160). The Judicial

Studies Board‟s website, www.jsboard.co.uk, gives the recommended specimen

directions for judges to give to juries in these circumstances. Section 34 is about a

failure to mention a fact before a trial (i.e. during a police interview or when

charged), while Section 35 is about a failure to give evidence at trial. In both cases,

the inference that the prosecution invites the jury to make is that the defendant‟s

silence indicates that he or she has noexplanation that will stand up to examination, and the absence of an explanation makes him or her more likely to be guilty.

This case demonstrates the importance of identifying and properly diagnosing

ADHD. If the CPS had not obtained a report from an expert in ADHD, then the

appeal would probably not have been successful. This was implied by their

Lordships in their judgment. The CCRC failed to seek advice from an ADHD expert

even after the expert who testified at trial (Professor Gudjonsson) had prepared a

new advisory report and made this recommendation. The adolescent forensic psychiatrist instructed by the CCRC did not look into the possibility of ADHD and so

could not consider its implications with regard to adverse inferences and fitness to

plead issues. Instead, the forensic psychiatrist focused on the issue of learning

disability and Billy Joe Friend‟s emotional problems. In the event, in 2004, the

Court of Appeal accepted the advice of a clinical psychologist that the intellectual and emotional deficits were secondary rather than primary problems.

Important differences in opinion are expressed as to the correct approach to

diagnosing ADHD and its implications (Timmi & Taylor, 2004). However, we

believe that ADHD impairments of function, properly identified, are salient and

legally relevant neuropsychological and developmental vulnerabilities. If they

remain undiagnosed at trial, then a wrongful conviction can result, as happened in

the present case. In this case, an important issue was that adverse inferences

could be drawn from the defendant‟s failure to give evidence at trial (Section 35). In

addition, the defendant‟s predicament was compounded further by his previously

exercising his rights to silence during the first two police interviews and then telling

lies during a further interview (Section 34). Additionally, the defendant‟s ADHD had

important implications for his ability to effectively participate in his trial, due to his

problems with sustained attention and poor behavioural control, for example, being

at risk of giving impulsive and ill-considered answers, which might be misconstrued

by the jury. These specific vulnerabilities associated with ADHD may be more

important in terms of meeting the „undesirability‟ criteria and fitness to plead than

are low IQ scores and mild learning disability.

For the future, the legal precedent set in this case has important implications for

ADHD sufferers who come before the courts, as well as for suspects interviewed

by the police. It may be that special consideration by courts is needed in some

cases of ADHD, particularly for individuals who are unmedicated and are exhibiting

severe symptoms. Sensible precautions might include regular breaks during the

trial, avoiding lengthy questions and complex language structure, and ensuring that important information is put across directly and simply. If these simple precautions

are taken, then the defendant may not be unfairly disadvantaged in spite of his

vulnerable qualities. In this way, the diagnosis can help to ensure that the

defendant has a fair trial, not necessarily by making it „undesirable‟ for him to give

evidence at trial, or to be found unfit to plead and stand trial. In the case of Billy Joe Friend, no issue of fitness to plead had been raised and

the trial judge started from the position that Billy Joe Friend was able to properly

instruct his lawyers and understood the proceedings. However, the trial judge

recognized that there were some undefined areas between unfitness to plead and

it being undesirable for a defendant to give evidence. Where that line is drawn in

legal and psychiatric terms is unclear, although it is accepted by the Court of

Appeal that in order to be fit to stand trial the defendant must, on the balance of

probabilities, be able to do all of the following six things (R. vs. John M, [2003],

EWCA Crim 3452): (1) understand the charges; (2) decide whether to plead guilty or not; (3) exercise his or her right to challenge jurors; (4) instruct solicitors and counsel; (5) follow the court proceedings; and (6) give evidence in one‟s defence if the person so wishes. With regard to giving evidence, „[t]his means that the defendant must be able: (a) to understand the questions he is asked in the witness box; (b) to apply his mind to answering them; and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable‟ ( p. 3, Subsection 24).

However, the word „undesirable‟ means something less than „unfit to plead‟ (R.

vs. Barry George, Central Criminal Court, 15 June 2001). In the well-publicised Jill Dando murder case, the defendant, Barry George, who had a history of epilepsy

and significant neuropsychological deficits, was considered fit to plead and stand trial by three defence expert witnesses. Nevertheless, the defence experts

considered that certain problems might arise during his testimony, which made it potentially undesirable for him to go into the witness box. The judge agreed and advised the jury that no adverse inferences should be drawn about Mr George‟s

failure to go into the witness box. Another important aspect of the Jill Dando case, which set precedent, was that

at the beginning of the 10-week trial, the judge ruled that an „advocate‟ would stay

with Mr George in the dock to provide him with practical support. In addition to that,

a clinical psychologist, Dr Susan Young, was commissioned by the judge to sit in

court throughout the trial, liaise with counsel, observe Mr George‟s demeanour,

and, in the breaks, to provide him with clinical psychological treatment required to

help him cope with the trial (e.g. by helping him manage feelings of anxiety and

stress and thus reduce the frequency of epileptic seizures). It was only by this

provision that Mr George maintained his fitness to stand trial and the case could

proceed without any problems and delays. This method of „fitness maintenance‟

meant that the case could proceed and be completed, as opposed to the costly

alternative of his being detained indefinitely in maximum security, without a trial or

the facts being ascertained.

Although Billy Joe Friend‟s poor attentional control was considered at the time,

the implication of his impulsivity or difficulty inhibiting an immediate (and perhaps

inappropriate) response was not. This latter point would have particular relevance

as to whether it was desirable for Billy Joe Friend to give evidence. For example,

aside from concentration problems in the witness box causing him to lose his train

of thought, Mr Friend may have blurted out the first thing that came to mind. He

may have been inconsistent and given conflicting evidence. People with ADHD

often speak and act without thinking of the consequences. He may have become

emotionally labile, distressed, and/or angry when giving evidence. He may not

have been able to inhibit a verbally aggressive response. These vulnerabilities are

likely to be misinterpreted by a jury unless a suitably qualified expert carefully

explained them.

The cognitive assessment of Billy Joe Friend in 2004 clearly showed that he

was not learning disabled (i.e. mentally retarded) and never had been. He had

obtained by then an improved full-scale IQ score of 79 (verbal and performance

being 77 and 86, respectively). These scores were in great contrast to two previous

pretrial intellectual assessments carried out 1 year apart (full-scale IQ scores of 56

and 63, respectively). This case shows how symptoms of ADHD can „affect‟ a

youth‟s IQ scores to the extent that an erroneous diagnosis of learning disability

can be made. How did ADHD „affect‟ the IQ scores? There are at least two

probable pathways. First, attentional problems and high impulsivity are likely to

impair the person‟s genuine performance as points are lost through lack of focus and impulsive errors. Second, ADHD has been found to be associated with academic failure and school truancy, which makes the person unlikely to fulfil his or her full educational and intellectual potential (Barkley, Fischer, Edelbrock, & Smallish, 1990). During his period of imprisonment, Mr Friend had attended educational classes.

Interestingly, Billy Joe Friend, when assessed pretrial aged 15, had some

psychological strengths that were not consistent with true learning disability. These

were his low level of suggestibility, on which the trial judge apparently placed

considerable weight in terms of Billy Joe Friend‟s fitness to give evidence, and his

average level of verbal comprehension and reasoning on the WAIS-R. What the

expert evidence at trial did not review was the full range of ADHD implications,

including probable problems with sustained attention over a prolonged period of

time and high impulsivity. These had important implications for how Billy Joe Friend

had responded in the police interviews, the difficulties he was likely to experience if

he went in the witness box, and his impaired capacity to effectively participate in

his trial (i.e. his fitness to plead and stand trial).

Conclusions

Gudjonsson (2003) has discussed in detail the importance of different psychological vulnerabilities in relation to police interviews and court proceedings. Psychological vulnerabilities are recognized in numerous legal judgments in the Court of Appeal, commencing in 1991 with a landmark decision in the case of the „Tottenham Three‟ (R vs. Silcotte, Braithwaite and Raghip, The Times, December 9, 1991), and mentioned as conclusive in the resolution in the House of Lords in 2001, in the appeal of Donald Pendleton (R vs. Pendleton [2001] UKHL 66).

This case demonstrates the importance of specialist psychological expertise

and assessment for the assessment of ADHD. Psychiatrists and other mental

health professionals may recognize some of the core symptoms of the condition

but usually will not have the expertise to objectively assess the functional deficits.

In some cases, these core deficits will be relevant to the reliability of statements

given in police interviews and in relation to other legal issues such as the presence

of abnormality of mind in cases of those charged with murder. Our concern is that many such cases may slip through the net. A recent review

of the literature suggests a high prevalence rate of childhood ADHD from

epidemiological studies ranging from 9% to 19% (Brassett-Grundy & Butler, 2004).

Prison studies using screening measures suggest that up to 67% of male inmates

had childhood ADHD (Vitelli, 1995) and 30% continue to be fully symptomatic and

16% in partial remission (Rasmussen, Almik, & Levander, 2001). The implication is

that a large number of suspects interviewed by the police, subsequently convicted

and sentenced, may have neuropsychological and developmental vulnerabilities

unrecognized at trial. If true, this is a recipe for future miscarriages of justice.

Acknowledgements The authors are grateful to Dr James MacKeith and Mr John Wagstaff from the Criminal Cases Review Commission for constructive feedback on a previous draft of this paper. Mr Billy Joe Friend has consented to us publishing his case.

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