Brain injury and the criminal justice system

Traumatic brain injury (TBI) is the greatest cause of brain injury, usually arising from an impact injury to the brain – as a result of violence, sports injuries and road traffic accidents. Even minor injuries can cause lasting effects to brain function, especially where there has been a cumulative effect of several mild injuries, which can mirror the problems of a severe TBI. Mild TBIs are also less likely to be reported and, therefore, may go undiagnosed and untreated.

Brain injury and the criminal justice system
A number of studies have shown that there are much higher rates of brain injury found in the offending population, suggesting that there may be a link between TBI and offending behaviour. The effects of
brain injury may impair judgement, as well as leading to reduced impulse control and increased aggression.
Two issues caused by brain injury, believed by the Disabilities Trust to be the most relevant to behaviour seen in court, are posttraumatic amnesia and frontal lobe paradox.

Post-traumatic amnesia (PTA)is a temporary state of confusion, disorientation and memory difficulties which occurs immediately following a significant blow to the head, most usually with a loss of consciousness. It may last only several minutes or possibly for several hours, dependent upon the nature of the injury. PTA is sometimes referred to as ‘post-traumatic confusional state’ and can occur from the moment of the injury until the return of normal memory functioning. During this condition, an individual cannot be viewed as fully cognisant, despite being awake and able to respond to questions. They may respond or behave erratically and may mistakenly be judged as intoxicated.

Frontal lobe paradox describes a phenomenon where a person with a frontal lobe brain injury retains the ability to discuss and show knowledge of what they have done or need to do but then struggles to actually do this in practice. As such, they can perform well in an interview but in an everyday situation they fail to perform well, can
be impulsive and make poor decisions, resulting in problematic behaviour. This is to say, that due to this particular ‘neuro-disability’ the person is ‘good in theory, but poor in practice’.

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