Morris, Margot; Watson, Kelly --- "I don't understand': Supporting people with intellectual disability in the criminal justice system" [2022] PrecedentAULA 42; (2022) 171 Precedent 36

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‘I DON’T UNDERSTAND’

SUPPORTING PEOPLE WITH INTELLECTUAL DISABILITY IN THE CRIMINAL JUSTICE SYSTEM

By Margot Morris and Kelly Watson

For people with intellectual disability, involvement in the criminal justice system can be a confusing – even frightening – experience. However, with appropriate support and guidance, they can learn how to exercise their rights, and participate with a sense of agency in criminal justice processes. Consistent professional support contributes to better outcomes for people with intellectual disability, benefits to government, and benefits to society.

ABOUT INTELLECTUAL DISABILITY

‘With the brain you have the learning sensor, and other sensors like a pain sensor.

My learning sensor was not developed properly when I was born.

It means I have an intellectual disability.’^[1]

Intellectual disability is characterised by ‘deficits in general mental abilities, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience’.^[2] Such deficits will result in ‘impairments of adaptive functioning’^[3] – the use of the skills that allow us to manage everyday life, such as communication and social skills, understanding, and remembering things. A person is described as having this type of disability if they show deficits in intellectual and adaptive functioning during the developmental period.^[4] This period is often defined as age 0–18 years,^[5] although there is some dispute about this definition.

A person with intellectual disability will have an IQ below 70 (average IQ is 100) and challenges in at least two areas of adaptive functioning.

The severity of intellectual disability is defined as mild, moderate, severe, or profound, based on adaptive functioning.^[6]

Intellectual disability is different to mental illness, which involves disturbances in thought processes and perception. Mental illness may be temporary, cyclical, or episodic, and its onset can occur at any time. Medication can often be used to manage its symptoms.

By contrast, it is deficits in cognitive ability and understanding that limit the thoughts of a person with intellectual disability. The disability is lifelong; medication cannot restore cognitive ability in a person who has an intellectual disability.

Intellectual disability is one type of cognitive disability – the term covers a variety of conditions that cause diminished cognitive and adaptive development, whether short-term or permanent. Some of the better known examples of cognitive impairment are autism, dementia, Down syndrome, and traumatic brain injury. Other conditions include dyslexia, attention deficit disorder, and other learning disabilities. People are born with some cognitive impairment conditions; others, such as dementia, can develop as you age.If a psychologist finds through clinical assessment that a person had an IQ of 70 or under plus deficits in at least two areas of adaptive behaviour before 18 years of age, this generally serves the purpose of proving in court that that person has intellectual disability. This exercise requires looking at disability in a 'medical' way. The medical model of disability sees disability as a 'problem' that belongs to the individual. It is seen as an issue not for others, but just for the person who is affected. A second commonly used model of disability is the 'social' model. It considers that the way society is organised, rather than a person's impairment or difference, causes disability. This model consequently looks at ways of removing barriers for people with disability. The theory is that when barriers are removed, people with disability can become independent in and equal members of their society, with choice in and control over their own lives.

Neither of these models of disability provides an adequate understanding of how people with intellectual disability experience major negative events such as involvement in the criminal justice system. The human rights model was introduced to address flaws in the social model, including the fact that the latter model is ‘primarily concerned with addressing barriers that are created by mainstream society’ and ‘makes the assumption that people with disability will be able to access the services they need once these barriers have been removed.’^[7]

It is more constructive and pragmatic to define intellectual disability in terms of the support needs of an individual. This approach sees the effect of disability as something that will vary in terms of, and can be increased or decreased by, external factors. In other words, intellectual disability is not viewed as an unchangeable characteristic of the individual. This model encompasses the effect on the individual’s capacity of both their environment and the support they receive. And it acknowledges that adjusting the environment and the support to meet the person’s needs can increase their capacity and reduce the effect of disability.

DIFFICULTIES WITH IDENTIFYING INTELLECTUAL DISABILITY

Not a physical disability

Identifying someone with intellectual disability is not always easy, as this is not a physical disability – one you can see. Many people have preconceived ideas about what someone with intellectual disability looks like, and therefore a disability can be easily overlooked if the person with that disability does not have certain physical characteristics. People with intellectual disability may also, over time, become particularly good at masking their disability in order to avoid being bullied and thought of as stupid.

Not a mental illness

For many years, a lot of training of people working in the criminal justice system has focused on increasing awareness of mental illness. There is less training available on how to better identify people with intellectual disability, although this seems to be slowly changing. Institutions such as the police service and the courts now recognise the importance of increasing knowledge around cognitive impairment and include it as part of their training.^[8]

Another issue is that the criminal justice system is set up in a way that limits opportunity for such identification, from the first interactions at the police station all the way through to the entering of legal orders on the finalisation of a matter. This is problematic – when intellectual disability is not identified, no adjustments are made to communication throughout the process, and the person with disability could travel through the process with little to no understanding of what is happening in their matter.

Through many years of working in the criminal justice system, the authors have observed that the general approach is to provide a large amount of information to the person who is being processed through the system and then ask, ‘Do you understand that?’ A bemused or frightened person with intellectual disability will often just nod or say ‘yes’, even though they do not understand.

This lack of understanding will disadvantage the person in their engagement with the system. Their interests will be particularly prejudiced if intellectual disability is not identified while they are in police custody. The apprehended person with intellectual disability may not have a full understanding of their rights, including their right to silence and to legal advice. They may therefore find themselves participating in a police interview when it is not in their best interests to do so.^[9]

A person with intellectual disability may face further disadvantage if they do not have a proper understanding of what they are allowed or not allowed to do under certain court orders; they may, for example, inadvertently breach orders and consequently be arrested. A situation where a person agrees to an apprehended violence order without fully understanding this and then breaches the order is a perfect example of how easy it is for someone with intellectual disability to get caught on the ‘slippery slope’ that is the criminal justice system.

SUPPORTS DURING THE CRIMINAL JUSTICE JOURNEY

Victims of crime or witnesses

It has been well documented, over many years, that people with intellectual disability are more than three times as likely to be a victim of crime than someone without that disability. Many articles on this subject attest to the high likelihood that a person with intellectual disability will be the victim of a crime.^[10] A range of variables contribute to the vulnerability of people with intellectual disability in this regard. People with this disability may be less adaptable to everyday circumstances, and therefore at risk of being taken advantage of and exploited. They may engage in odd behaviour that draws the attention of others. Significantly, those with lower levels of social skills can precipitate an offence against them by behaviour which provokes the offender in some way. For example, they may react to a confrontational situation with inappropriate anger or aggression rather than by withdrawing from or defusing the situation.^[11]

Often the police do not believe victims of crime with intellectual disability when they report those crimes. This could be due to many factors, including the person’s previous history of reporting similar matters to police, the way the person presents when reporting, and the way in which they report on what they remember about the details of the crime. Even if police do take an initial statement, there can be reluctance to investigate further due to the belief that the person would be an unreliable witness in court. The ignorance and lack of skills of not only police but also other workers in the criminal justice system, as well as the inflexibility of structures and processes within the system, contribute to the lack of access to justice for people with a cognitive impairment, compared to those without.^[12] Police need good training in taking statements effectively from people with intellectual disability.

Police, lawyers and victims’ support people must work together to provide adequate support for victims and witnesses as a matter proceeds through the system.

The court system, with its complex processes and opaque jargon, is difficult enough to manoeuvre without the added layer of confusion arising for people with intellectual disability. A court appearance, for example, is intimidating for people who have no intellectual disability, let alone those with an intellectual disability.^[13]

The prosecution team should provide regular updates on the progress of the case and clear explanations of what the victim and witnesses should expect when giving evidence. For people with intellectual disability, it can help to visit the court in advance of any appearance and to watch actual or video demonstrations of proceedings in cases similar to their own. If this is not possible, support people can use pictures to explain how the court is set up, who will be in the room, and the roles of the people present. If the person is to give evidence by video link, it is important to prepare them for how that process will work. For example, the Justice Advocacy Service (JAS) in NSW supported a victim giving video evidence in a sexual assault matter who believed she was watching a courtroom drama on television: watching herself on video while she was in court, she found it too confusing to comprehend that while she was in the courtroom, she was simultaneously ‘present’ in another space.

During a trial, it is important that the support person helping a witness with intellectual disability remains focused on the witness and alert to signs that the person has not understood or needs a break. Justice is likely to be better served if the court is alerted to these issues.

Victims may also need significant communication and emotional support at the end of criminal proceedings. This is particularly the case where the accused is acquitted. Lawyers and support people must be prepared to devote plenty of time to explaining clearly the concept of the criminal burden of proof. Where appropriate, they need to take time to reassure witnesses that an acquittal may not mean the witness’s evidence was ignored or judged to have been poor or untruthful.

Suspects or defendants

Suspects with intellectual disability will benefit from a clear explanation of rights and procedures at the police station. In NSW, the most important document for a person under arrest to understand is the caution that they do not have to say or do anything, and that anything they do say or do may be used in evidence. This is commonly known as the ‘Part 9 Caution’, as it originates in pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).^[14] The Caution document used in NSW^[15] comprises over 15 paragraphs and is filled with long, complex sentences. Paragraph 3 is the most important part, and explains the right to silence. The question with which it ends is, ‘Do you understand that?’ People with intellectual disability will often respond to this question by saying ‘Yes’. However, if someone were to ask them what they understand that paragraph to mean, the responses would vary, but would clearly indicate that the content has not always been understood. Hearing paragraph 4 of the Caution document, which describes exceptions to the right to silence, often adds to the person’s confusion.

Having a support person assist the police to explain the Caution will be beneficial: it will help the person better understand their rights and the consequences related to exercising those rights.

People with intellectual disability should be given legal advice they can understand. When under arrest at a police station they are likely to need advice about whether to participate in a police interview, forensic procedures, or identification parades, as well as advice about bail. At later stages they will need advice about options, pleas, evidence and prospects for them of the outcome of the case. If a person has difficulties with processing, understanding and remembering information, these are likely to be increased by the stress of environments like police stations, courts and legal offices. Their decision-making ability will also be negatively affected by circumstances like these. Lawyers need to speak slowly, keep sentences short and language simple, pause between points, and check for understanding by asking the person to repeat the key advice they have been given. Even if the person says they will follow the advice of the lawyer, they are likely to have difficulty doing so.

Support people

Lawyers need to work effectively with the support people who are helping a suspect or defendant with intellectual disability, especially when providing assistance over the telephone rather than in person. The support person role ‘does not demand per se confidentiality in relation to admissions made freely’ by the accused to the support person;^[16] lawyers working in these situations will need to ensure that the person with disability understands this, and will need to consider whether the presence of the support person as a party to confidential communications will affect client legal privilege.

Having a trained support person to accompany the person with intellectual disability throughout the process can provide confidence for all parties. The police and the courts will be confident that the client will not only be supported to understand their obligations under bail conditions, but will also be assisted to connect with services in the community that will offer an extra layer of support. For the person with disability, a support person can act as an additional ‘checking mechanism’, offering assistance with changes they may need to make in their day-to-day routine to comply with their bail conditions or meet other requirements. The support person can also assist the person with disability to raise with their lawyer any concerns around bail conditions that may be difficult to satisfy.^[17]

The support person can remind the person with disability when they must attend court, and support them at each court appearance. Sometimes the support person will be the only consistent figure for the person with disability during the proceedings – regular changes in lawyers and magistrates are common.

Support services

Referring a person with intellectual disability to appropriate support services can be lifechanging for that person. Support services, of which JAS is an example, can assist in linking the person with relevant supports that may address aspects of their situation likely to contribute to criminal behaviour. For example, a person who does not have many daily activities could be associating with a peer group that negatively influences their behaviour. Helping them to find an activity they enjoy could enable them to break away from those negative influences. If a person with intellectual disability is having issues with a neighbour, or they are breaching an AVO, they could be supported through assistance with finding alternative accommodation. In general, if a person with intellectual disability is linked with the National Disability Insurance Scheme, housing options, health clinicians, or drug and alcohol rehabilitation services, the court may have more confidence in releasing them on a community-based order rather than making an order for imprisonment.

The same can be said when the court is considering whether to release a person on bail. In the experience of the authors, magistrates often cite involvement with services such as JAS as one of the reasons for granting bail.^[18]

An evaluation of JAS completed by Ernst and Young in 2021 found that a support service such as this, while at that time showing a return of $1.11 for each $1.00 spent, has the capacity to increase its return to $3.37 once it is running at full capacity. The two largest economic benefits were found to be increased efficiency in cases (51 per cent) and reduction in offending (30 per cent).^[19] This shows that the community as a whole is benefiting from savings generated by limiting the time people with cognitive disability, including intellectual disability, are involved in the criminal justice system.

CONCLUSION

Changing the experiences of people with intellectual disability in the criminal justice system requires a three-pronged approach. Firstly, it requires building the capacity of the system through education, information, and training for the workers within that system. Secondly, it requires making adjustments such as providing a support person, additional time, and plain English documents that make processes and orders easy to understand and therefore comply with. It also requires the provision of links to support services.

Margot Morris is the principal solicitor at the Ability Rights Centre, a community legal centre and disability advocacy service that is a program of the Intellectual Disability Rights Service Inc. The Centre provides legal and related services for people living with disability throughout NSW. EMAIL [e-mail].

Kelly Watson is the Acting Director of the Justice Advocacy Service (JAS), a program funded by the NSW Department of Communities and Justice and operated by the Intellectual Disability Rights Service Inc. JAS is a support service for victims, witnesses and defendants with cognitive impairment which aims to facilitate clients’ ability to exercise their rights and participation in NSW criminal justice processes. EMAIL [e-mail].

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^[1] Chris Smith, Co-educator, of the Ability Rights Centre, a service of the Intellectual Disability Rights Service Inc., in an Ability Rights Centre presentation by Chris Smith and Ali Craig, 'Legal Rights for People with Cognitive Impairment', University of Technology, Sydney, September 2021.

^[2] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed, American Psychiatric Publishing, Arlington, VA, 2013, 31.

^[3] Ibid.

^[4] Ibid, 33.

^[5] National Disability Services, Disability Types and Description <https://www.nds.org.au/disability-types-and-descriptions>.

^[6] American Psychiatric Association, above note 2, 33.

^[7] Disability Advocacy Resource Unit, HOW WE TALK ABOUT DISABILITY MATTERS! Understanding models of disability (Information sheet), 4 <https://www.daru.org.au/wp/wp-content/uploads/2019/03/Human-rights-info-sheet-for-website.pdf>.

^[8] For example, NSW Police have been working with the IDRS to develop an online module on better identifying and communicating with people with cognitive impairment.

^[9] See Australian Human Rights Commission, The Rights of People with Disabilities: Areas of Need for Increased Protection: Chapter 5: Criminal justice system <https://humanrights.gov.au/our-work/rights-people-disabilities-areas-need-increased-protection-chapter-5-criminal-justice#interview>.

^[10] See for example C Wilson and N Brewer, ‘The incidence of criminal victimisation of individuals with an intellectual disability’, Australian Psychologist, Vol. 27, No. 2, 1992, 114–17.

^[11] C Wilson, T Nettelbeck, R Potter and C Perry, ‘Intellectual Disability and Criminal Victimisation’, Trends and Issues in Crime and Criminal Justice, No. 60, Australian Institute of Criminology, September 1996, 2–6.

^[12] See K Johnson, R Andrew and V Top, Silent Victims: A Study of People with Intellectual Disabilities as Victims of Crime, Office of the Public Advocate (Report, May 1988) <https://www.aic.gov.au/sites/default/files/2020-05/13-87.pdf>.

^[13] There are various resources available to support people with intellectual disability in a court setting. See for example NSW Department of Communities and Justice, So you have to go court! (video) <https://www.justice.nsw.gov.au/diversityservices/Pages/divserv/divserv_so_you_have_to_go_to_court.aspx>; Victoria Legal Aid, Help at court <https://www.legalaid.vic.gov.au/help-court>; Legal Services Commission of South Australia, ‘Do you have a court date? Things you need to do’ (brochure) <https://lsc.sa.gov.au/resources/DoYouHaveaCourtDateGuide.pdf>; Supreme Court of Western Australia, Access for People with a Disability <https://www.supremecourt.wa.gov.au/A/access_for_people_with_a_disability.aspx>.

^[14] Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s122. Legislative references in other jurisdictions to police cautioning of suspects include: Crimes Act 1914 (Cth), s23F; Crimes Act 1900 (ACT), s187; Police Administration Act 1978 (NT), s140; Police Powers and Responsibilities Act 2000 (Qld), s431; Summary Offences Act 1953 (SA), s79A(3); Crimes Act 1958 (Vic), s464A(3); Criminal Investigation Act 2006 (WA), s138(2)(b).

^[15] NSW Government, Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), sch 1, Form 31.

^[16] JB v Regina [2012] NSWCCA 12, [31].

^[17] For example, if the person is instructed not to go within 100 metres of an address in order to fulfil bail conditions, they will need to have the distance explained in concrete terms – such as, ‘Don’t go past the McDonalds on the corner of Queen Street.’ Or if, say, they catch a bus to and from home and the route passes through a part of town they are not allowed to be in, they may need help with identifying a different way to get home.

^[18] See for example the case study in IDRS, IDRS Annual Report 2020–2021, 32 <https://idrs.org.au/site18/wp-content/uploads/2021/12/IDRS-Annual-Report-2021-LR.pdf>.

^[19] Ernst & Young, Evaluation of the Justice Advocacy Service: Department of Communities and Justice (Final Report, 4 February 2021) <https://www.justice.nsw.gov.au/diversityservices/Documents/evaluation-of-the-justice-advocacy-service-report.PDF>.