"When our prisons become repositories for the neurodivergent, it represents not only a failure of justice but a fundamental misunderstanding of human difference. The statistics are clear: we have effectively criminalised neurological variation. What remains unclear is when we will summon the political courage to recognise this institutional bias and act accordingly."

• Professor Stan Gilmour KPM FRSA

In the drab waiting room of an English magistrates' court, a woman sits anxiously. She struggles to recall key details about her case, responds inconsistently to questions and appears agitated when the overhead fluorescent lights flicker. To court officials, she might seem uncooperative or unreliable. What they likely cannot see is that she has an undiagnosed traumatic brain injury, sustained during years of domestic abuse, that affects her memory, concentration and sensory processing.

This scenario plays out daily across Britain's criminal justice system (CJS), highlighting a disturbing trend: people with neurodivergent conditions, including brain injuries, are dramatically overrepresented in the prison population. The statistics are stark. While approximately 15-20% of the general population have some form of neurodivergent condition, this figure rises to around half of all prisoners. For women, the numbers are even more alarming: research suggests that up to 94.7% of women in prison have experienced traumatic brain injury.

A system built for neurotypical minds

What we're seeing isn't simply individual failure or bad luck, it’s a pattern of systemic discrimination against people whose neurological differences make them vulnerable to criminalisation at every stage of the justice process. This institutionalised bias operates not through deliberate prejudice but through structures, processes and expectations designed for neurotypical minds. The criminal justice system presumes cognitive abilities that many neurodivergent people struggle with: consistent memory recall, executive functioning skills and social awareness.

Police interview techniques, court proceedings and prison regimes all operate on assumptions that disadvantage those with autism spectrum conditions, ADHD, dyslexia or brain injuries. For women whose brain injuries often stem from intimate partner violence (IPV), the criminal justice system represents a cruel irony - their injuries, resulting from victimisation, become the very factors that trap them within a system ill-equipped to recognise or accommodate their needs.

From victim to offender: A predictable pathway

The journey from victim to offender is distressingly common for women with neurodivergent conditions. The pathway typically begins with exposure to IPV, where injuries to the head, face and neck, including non-fatal strangulation, cause undiagnosed brain trauma. These injuries lead to cognitive difficulties, emotional dysregulation and mental health issues. Many women develop coping mechanisms, including substance misuse, that further increase their risk of criminalisation.

Disturbingly, research from the Disabilities Trust found that domestic violence is a leading cause of traumatic brain injury in women prisoners. Unlike men, whose brain injuries typically result from accidents, fights or sports, women's brain injuries often occur in the context of sustained abuse.

By the time they encounter the criminal justice system, their brain injury symptoms -memory problems, impulsivity, difficulty following instructions, are often misinterpreted as non-compliance, substance misuse, or deliberate defiance.

The school- to-prison pipeline: Early warning signs

The criminalisation of neurodivergence begins early. Recent research from the University of Exeter reveals troubling connections between school exclusion, neurodiversity and early entry into the criminal justice system. Children with special educational needs, which often include neurodivergent conditions, are excluded from school at disproportionate rates.

The study found that individuals excluded from school four or more times were first convicted, on average, six years earlier than those who were never excluded. Each standard deviation decrease in functional skills (a marker for neurodivergence) was associated with being convicted half a year earlier.

School exclusion appears to be a critical turning point - once a child is excluded, particularly if they're neurodivergent, they face a significantly higher risk of early criminalisation.

Challenges at every stage

As individuals with neurodivergent conditions move through the criminal justice system, they face hurdles at every stage.

At the first point of contact with police, neurodivergent individuals often struggle to communicate effectively. Police look for inconsistencies as potential signs of dishonesty, but what if those inconsistencies are actually symptoms of a brain injury or a misinterpretation of cues?

As cases progress to court, the challenges multiply. Court proceedings, with their formal language and complex processes, present particular difficulties for neurodivergent individuals. Without proper identification and support, they face a heightened risk of unjust outcomes.

For those under community supervision, many have a learning disability or challenge. Without appropriate adjustments, neurodivergent individuals often struggle to comply with the requirements of their orders, leading to breaches and recalls to prison.

The prison environment itself poses significant challenges for neurodivergent individuals. Sensory overload from noise, lights and crowding can trigger distress. Without proper identification and support, their behaviours may be misinterpreted as deliberate rule-breaking.

Promising approaches: A Way Forward

Despite these systemic challenges, promising practices are emerging across the criminal justice system, police and academic collaborations, the College of Policing, the Sentencing Council, and the Parole Board have all introduced a focus and guidance on neurodiversity.

Some police forces, including those in Nottingham and South Yorkshire, have developed partnerships with local universities to create screening tools and training to help officers identify neurodivergent individuals. The Nottingham Autism Police Partnership toolkit offers a model that could be expanded to cover a wider range of neurodivergent conditions.

In the courts, several jurisdictions are implementing accessible information about court processes and ensuring liaison and diversion services screen for neurodivergence. In Lancashire, the National Probation Service has partnered with the National Autistic Society to develop a network of neurodiversity champions.

Perhaps most promisingly, prisons – including HMP Lewes - have developed specialist wings for neurodivergent prisoners, with adapted environments and specially trained staff. 

A call for systematic reform

These isolated examples of good practice, while commendable, highlight the need for a continued focus on a comprehensive approach. Creating a criminal justice system that is equitable for all requires a coordinated, cross-government strategy and action plan, to continue the focus brought about in earlier work.

Such a strategy must include several key elements: implementing consistent screening for neurodivergent conditions at multiple points in the criminal justice pathway; building awareness among frontline staff; facilitating information sharing between agencies; and developing specialised pathways for neurodivergent individuals.

Environmental adjustments are also crucial. Police custody suites could incorporate sensory-considerate booking areas, adapted cells with adjustable lighting, and visual supports. Interview techniques could be modified to provide additional processing time and check comprehension. Distraction items such as fidget toys could be made available where risk assessment permits.

Most fundamentally, however, addressing the institutional bias against neurodivergent individuals requires more than individual awareness, it demands a thorough re-examination of the criminal justice system's core processes and assumptions.

The problem isn't simply that individuals with neurodivergence are falling through cracks in the system, it's that the system itself is structured in ways that actively disadvantage them. Until we recognise this fundamental bias, piecemeal reforms will only take us so far.

The Health versus Criminal Justice Pathway

A key issue is the arbitrary nature of decisions that determine whether an individual enters a health pathway or criminal justice pathway. These decisions often depend on whether neurodivergence is identified at the point of contact with services, the availability of appropriate health and social care provision, and the individual's ability to advocate for themselves.

For women with acquired brain injuries resulting from IPV, this often means their symptoms are misinterpreted as wilful non-compliance, and behavioural issues lead to criminalisation rather than support.

The absence of appropriate health and social care pathways means that behaviour resulting from brain injury is frequently criminalised rather than treated. This represents a profound systemic failure that disproportionately affects those who are already vulnerable.

The economic case for reform

Beyond the clear moral imperative, there is a compelling economic case for reform. The cost of maintaining an individual in prison far exceeds the cost of community-based support services. Early intervention to identify and support neurodivergent individuals could significantly reduce the financial burden on the criminal justice system.

Furthermore, the existing approach creates a revolving door, with neurodivergent individuals cycling through the criminal justice system without addressing their underlying needs. The result is not only ineffective but also enormously expensive.

Conclusion: Time for Change

The dramatic overrepresentation of neurodivergent individuals in the criminal justice system represents a failure of both justice and public health policy. When nearly 95% of women in prison have experienced brain injury, and half of all prisoners have some form of neurodivergent condition, something is clearly amiss.

The current system too often criminalises the very injuries that arise from victimisation, particularly for women who have experienced intimate partner violence. Instead of receiving appropriate health and social care support, these individuals find themselves caught in a criminal justice system ill-equipped to understand or accommodate their needs.

We're not just talking about making reasonable adjustments for a few individuals. We're talking about fundamentally changing how we approach justice and creating a system that works for everyone, including those whose brains work differently.

For the woman sitting anxiously in the magistrates' court, and the thousands like her, such changes cannot come soon enough. The question is not whether Britain can afford to reform its approach to neurodivergence in the criminal justice system, but whether it can afford not to.