Attention Deficit Hyperactivity Disorder (ADHD) and the Criminal Law1

Abstract

Attention Deficit Hyperactivity Disorder (ADHD) has been identified as significantly over-represented in the prison population and being a likely precipitant to engagement in criminal conduct. There should be little surprise in this fact, as impulsivity, inattentiveness to instructions, inability to retain information and limitations in the ability to think rationally through the likely consequences of actions have long been recognised as criminogenic factors. This article adds to the literature on ADHD and the criminal law. It reviews the history of ADHD diagnosis and treatment and scrutinises important English, Australian, New Zealand and Canadian judgments, in particular at appellate level, in which the relevance of ADHD to criminal offending has been evaluated. It notes the vulnerability of persons with ADHD in the context of being interviewed by police on suspicion of having committed criminal offences, it raises issues related to the fitness to stand trial of accused persons with ADHD and it identifies a need for forensic psychiatrists and psychologists to give particular attention in their reports and evidence to an assessment of the extent and nature of an offender’s ADHD symptomatology and whether it played a causative or influential role in the person’s engagement in criminal conduct, as well as to whether symptomatology is likely to be worsened by imprisonment or to render the offender especially vulnerable in a custodial environment.