INTRODUCTION

3.1 One of the over-riding difficulties for police, and indeed all people coming into contact with people with an intellectual disability in the criminal justice system, is the issue of identification of the person’s disability or special needs. The Commission’s Local Courts Research Report¹ identified nearly one in four of the sample appearing before Local Courts on criminal charges as having at least a borderline intellectual disability, but it was believed that only a small percentage of those people would have been identified as such by police, lawyers or the courts. One of the reasons that people with an intellectual disability enter the criminal justice system without their disability being detected is that they may attempt to hide their disability “often motivated by feelings of shame, embarrassment, fear, or because in the past it has been the cause of what they perceive as ‘trouble’ ”.² As well, many people, whether police or otherwise, appear to expect that a person’s disability will be obvious from their appearance or manner, but this is not necessarily the case, except perhaps in the case of Down Syndrome, which has distinctive physical characteristics.

3.2 The Commission has been provided with many examples, including from people working in the criminal justice system with considerable contact with people with an intellectual disability, where that person did not realise that the person they were interviewing had an intellectual disability, even after spending significant periods of time with the person. In one case, where two lawyers with expertise and interest in intellectual disability issues were conducting an interview, it was not until a psychological assessment was undertaken for another reason that the interviewee’s disability was identified. Therefore, it is unlikely that the average police officer, who may only have a brief contact with a person, will always recognise that the person being questioned may have an intellectual disability and respond accordingly.

Lack of recognition by police

3.3 As discussed in the Issues Paper, police may interview a person in relation to an offence and not recognise the person’s disability for a variety of reasons; for example, the good presentation skills of the person, the person’s denial of his or her own disability or general community ignorance about intellectual disability. It also has been suggested, by a police officer with considerable experience in this area, that the criminal justice system as a whole relies heavily on the background of an offender:

If the person has been diagnosed at birth or in early childhood as having an intellectual disability then they accept this evidence. But rarely does the system accept the offender as being intellectually disabled if there is no prior history of his disability ...³

Many of the people with an intellectual disability who become involved in the criminal justice system, whether as a suspect, witness or victim, will not have a formal diagnosis of intellectual disability.

3.4 Police also may misinterpret the answers given by some people with an intellectual disability as “smart arse” behaviour or believe that the person is hiding something - for example, when the person cannot say where they live. People with an intellectual disability therefore may be wrongly categorised as being uncooperative, mentally ill, or as being under the influence of drugs or alcohol, and thus will be dealt with inappropriately. As victims, people with an intellectual disability may, as a result of this mistaken understanding or their poor communication skills, have their complaint taken less seriously.

POLICE GUIDELINES

3.5 In the Police Commissioner’s Instructions there are identification guidelines in relation to victims, which are discussed in Chapter 9 below, but these are not repeated in the sections of the Instructions dealing with suspects. The relevant section of these guidelines are:

A person with an intellectual disability has a capacity for intellectual functioning which is lower than the norm.

People with an intellectual disability may or may not have a physical disability.

Intellectual disability is not a psychiatric illness.

The range of intellectual disabilities is diverse and may not be immediately evident.

Indicators of intellectual disability include:

• short attention span
• difficulty understanding questions and instructions
• responding inappropriately or inconsistently to questions.

Details such as a person’s work, school, residence, or social security entitlements may be indicative of intellectual disability. ⁴

Submissions have supported the repetition of these guidelines in the sections of the Instructions dealing with investigation and arrest.

Screening tests

3.6 It was suggested in the Issues Paper that there are screening tests for intellectual disability with a simple question/answer format (for example, the Kent E-G-Y Test) which could be introduced into police training and practice. Such tests have their limitations, however, and may produce both false positive and false negative results. There are a number of other practical procedures involving tasks which are likely to be difficult for people with an intellectual disability and which could easily be administered, such as asking the person to look up a number in the telephone directory, to give street directions or to distinguish colours. The Commission sought comments on the appropriateness and efficacy of introducing these or other tests into police practice. The Legal Aid Commission of New South Wales submitted that:

[p]olice should receive proper training to enable them to identify people with an intellectual disability and the use of simple “identification” tests by virtue of their existence, may serve to raise this as a factor to be considered when dealing with a suspect.⁵

3.7 The New South Wales Council for Intellectual Disability suggested that:

police may not be appropriate to administer any formalised “test” as to a person’s disability. So too, there may be some questions as to how / when / who administered such a test, and the validity of the results, and what may then follow as a result of such a test, eg if the police decided the person did not have a disability, but later evidence proved otherwise, what happens to any statements obtained without full compliance with the Police Commissioner’s Instructions? If the “test” appears to reveal the existence of a disability, how will this information be then treated by the police? The person may only be a suspect or a witness. The person may have been further labelled by the administration of such a test.

It may be more appropriate for police to ask questions such as: where do you live? who lives with you? what school did you go to? do you work and where? do you get money from the Department of Social Security? is it a pension? If police are unsure, it is suggested they err in favour of protection of the person’s rights and follow the relevant instructions.⁶

Standard questions

3.8 Other submissions have supported the preparation of a standard series of questions for police to use if they have any suspicion that the person may have a disability, for example: police could obtain a list of local services for people with disabilities and ask the person questioned whether they have any contact with any of those services; or police could ask whether the person interviewed is receiving any sort of pension or benefit.⁷ The Redfern Legal Centre Intellectual Disability Rights Service submitted that the focus should be shifted from testing, however:

[r]ather than “tests” the police should develop strategies by which police can elicit information which may suggest that a person has an intellectual disability - for example by asking what school that person attends, or where that person works or lives. It must be made clear to the police that the purpose of such questions is not to give people with an intellectual disability “special treatment” but rather it is designed to make sure that the special needs of people with an intellectual disability are addressed and their rights are safeguarded.⁸

3.9 In the Victorian Police Training Package, discussed further in Chapter 4 below, the Manual sets out some sample questions to assist the police officer to determine whether the person has an intellectual disability, for example:

(a) Ask the person to identify themselves (both verbally and in writing) by:
• name;
• address;
• telephone number;
• age;
• date of birth.
(b) Ask the person for direction to his/her home address.

(c) Can the person tell the time? Intellectually disabled people can often read a digital watch, but not one with a traditional “face”.


Ask what time the person left home that morning, how long did it take to get to the current location, what time do they usually eat dinner etc.

(d) Can the person identify denominations of money and attribute value to them? Use a set of coins or notes and ask the person to add up the money and to give change. Use everyday examples.

(e) Can the person count/identify numbers?


(eg how many days in a week?)

(f) Is the person able to recognise/read a word on its own and then recognise the same word in a paragraph?

(g) Can the person answer the question, “What day of the week will it be a week from today?”⁹

3.10 The barrister Mark Ierace, in his book Intellectual Disability: A Manual For Criminal Lawyers, has provided useful guidelines for lawyers in relation to identification, which would be just as helpful and applicable for the police:

A person who has an intellectual disability cannot be relied upon to alert the solicitor to it. ... Silence, rote agreement to questions asked, brevity of answers, and becoming hostile when asked questions that they cannot answer, are various ways in which the cover is laid. It is also possible that a client has a mild disability which has not been formally diagnosed, and of which he or she is unaware.

...

There is no certain method for determining whether a client has an intellectual disability. Even if it is evident that the client has a significant mental abnormality, it may not be clear whether it is in fact an intellectual disability. The solicitor should be aware of indications that the client may have such a deficiency in intellectual functioning as to be significantly disabled. A professional assessment can then be arranged to test the suspicion.

The principal signal is likely to arise from the manner in which the client interacts socially. The following are some characteristics which are frequently associated with persons with an intellectual disability. If the client manifests some of these, it may be prudent for the solicitor to make further inquiries and seek the client’s consent to psychological testing. These are not constant factors, so the presence or absence of some does not conclusively indicate whether or not the person has an intellectual disability.

Communication difficulties

• a restricted vocabulary;
• short attention span, easily distracted;
• difficulty in understanding questions;
• responding to questions either inappropriately or with inconsistent answers;
• memory difficulties;
• difficulty with abstract thinking and reasoning.



Behaviour

• inappropriate social distance (for instance, being overly friendly and anxious to please);
• acting in a way which is appropriate to a significantly younger age than the client’s age group;
• dressing inappropriately for the season or occasion.



Task performance

Difficulty with such tasks as:

• reading and writing;
• identifying money values or calculating change;
• finding his or her own phone number in the telephone directory;
• giving directions to a place he or she would be expected to know (though the client may be able to take you there).



Social information

The solicitor may become aware from the client, or from the client’s family or friends, that the client:

• has received the invalid pension (on the basis of an intellectual disability);
• has attended a special school or a special class (OA or OF) at school;
• has worked in a sheltered workshop or work training program;
• lives in a group home or hostel for people with an intellectual disability.¹⁰ [Footnote references deleted]

3.11 The Commission accepts both the strength of comments about the inappropriateness of police administering psychological “tests”, and the comment that reliance on any one test is probably insufficient.¹¹ The Commission suggests that a more appropriate approach is one which provides guidelines with indicators of intellectual disability through a descriptive passage (such as that by Mark Ierace set out above) and listing appropriate questions, the answers to which may also suggest that the person being questioned has an intellectual disability. Police would need to be aware that people who do not have an intellectual disability, for example people with limited English or some people with a mental illness, will not always be able to answer such questions. It must be also remembered that many people with an intellectual disability involved in the criminal justice system are not connected to any service or are on unemployment benefits, rather than a disability support pension, so questions about services and disability pensions may not necessarily be revealing. The other issue is the danger that police may accept a list of questions as a definite “test”. If they then receive the “correct” answers they may decide that the person definitely does not have an intellectual disability and ignore any other indicators. Any guidelines produced would need to make this clear and stress the need for appropriate expert assistance if in doubt. The guidelines must also state that police should always err on the side of caution if there is any indication that the person may have an intellectual disability. If a police officer has any reason to believe the person has an intellectual disability, they must follow the relevant police procedures.

Access to support for police

3.12 Most officers would not knowingly have had much contact with people with an intellectual disability, and guidelines such as those discussed above may be insufficient. In a review of the Police and Criminal Evidence Act 1984 (UK) it was stated that:

the criminal justice system was and remains vulnerable to many forms of mental handicap ... The dimensions of this continuing problem can be stated relatively simply: the diagnostic expertise to identify special vulnerability is in short supply and even if the police do their best to seek special help they may be unable to obtain it. Moreover it may be that unless a very high degree of expertise is available in the cell block, investigating officers will not become aware that they are dealing with mental handicap.¹²

3.13 Police do not currently have ready access to expert assistance to help them identify whether or not a person has an intellectual disability. Police have expressed to the Commission their concern about being expected to make an assessment in relation to a person’s disability. They naturally do not feel qualified to undertake such a task, nor should they be expected to do so. Providers of services to people with disabilities are often asked by the police about how to identify intellectual disability. There is no easy answer, as there are many different kinds and levels of disability. Some police have suggested in informal discussions with service providers that one solution would be for service providers to supply lists of people with an intellectual disability residing in the area.¹³ Some parents have suggested similar lists so that they will be contacted when their child comes into contact with the police. Such a list would be an invasion of the person’s privacy. Furthermore, many accused persons with an intellectual disability are not known to agencies so a list would have limited value. Before considering such a system there would have to be an evaluation of whether any advantages would accrue to people with an intellectual disability (not the police) from the use of such a list, and whether these advantages would outweigh the invasion of privacy.

3.14 Perhaps an alternative to a “list” system is the availability of a contact and referral service on a 24-hour basis, to confirm police identification, assist in enquiries or provide information.¹⁴ It has been suggested that, during office hours, police could telephone their local branch of the Department of Community Services (“DOCS”) for assistance in relation to identification, as they have expertise in the area of intellectual disability and have offices throughout the State. This option is not, however, available on a 24-hour basis. In addition, many police are not aware that DOCS could play a role in this regard. Police need access on a 24-hour basis, at least by telephone, to expert assistance about intellectual disability. Though the police are likely to be more willing to consult an internal body for this advice, the resource implications of setting up such a facility are likely to be extremely high for the Police Service, if there is no existing expertise in this area. The Commission seeks further information about the availability to police, if any, of expert assessments and any suggestions in relation to modification of the existing procedures. However, the Commission suggests that DOCS is the appropriate body to provide a 24-hour service in relation to identification and other information as it is the major service provider to people with an intellectual disability throughout New South Wales.

RIGHTS ASSISTANCE CARD

3.15 One attempted solution, in Wagga Wagga, to the difficulties in this area has been the release, in August 1992, of a “Rights Assistance Card”. The card, which is carried by the person with an intellectual disability, can be produced when being questioned by police, for example if the person is having difficulty in the interview. It is not just designed for contact with the police, but also for use when in contact with other services such as hospitals and public utilities. The two sides of the card are shown below:

PLEASE STOP THIS INTERVIEW

I MAY NOT FULLY UNDERSTAND YOUR QUESTIONS,

OR MY RIGHTS

MY NAME: __________________________________________________________

MY ADDRESS: _______________________________________________________

IF MY ADVOCATE IS UNAVAILABLE CONTACT:

DISABILITY ADVOCACY NETWORK

PHONE: (069) 21 9225

Printed with the assistance of Independent Commission Against Corruption

and NSW Police Service.

PLEASE STOP THIS INTERVIEW

I MAY NOT FULLY UNDERSTAND YOUR QUESTIONS,

OR MY RIGHTS.

IN MY INTEREST AND TO ENSURE ACCURACY DURING THIS

INTERVIEW, PLEASE CONTACT AN ADVOCATE ON MY BEHALF.

MY ADVOCATE IS: ___________________________________________________

ADDRESS: ___________________________________________________________

PHONE: _____________________________________________________________

3.16 Some disability groups do not believe that the carrying of such a card is helpful for people with an intellectual disability as it may be seen as improper “labelling”. It also has been suggested that many people with a disability would not wish to carry such a card, either because they do not believe that they have a disability or because they regard the description as discriminatory or demeaning. However, one submission, from a family member of a person with an intellectual disability, suggested that the existing disability support pension travel/concession card, which is usually carried by the person with a disability, should also contain a coded system indicating the level of disability:

this code would then allow an authority to really know that the person has a minor or severe intellectual disability. Therefore legal procedures from the beginning of an offence being committed can be treated with special attention.¹⁵

3.17 Cards have, however, been designed for use with the police, without apparent controversy, in other contexts. For example, the Ethnic Affairs Commission in 1992 supported the introduction in New South Wales of a card which states that the holder needs an interpreter, indicates the language required and provides a contact number for the Ethnic Affairs Commission.

3.18 Mark Ierace suggested an alternative version of a card:

If the client has a history of being arrested, it may be to his or her benefit to carry a document stating his or her intention not to answer questions unless a solicitor is present, and containing the appropriate phone numbers for that solicitor to be contacted. The card might also (or instead) request that the police contact a particular relative or welfare worker. The client could be advised to produce it to police officers when questioned. Such a card, or statutory declaration, may not of itself result in the court exercising its general discretion to exclude confessional material, but it may assist in persuading the jury or bench that he or she did not make, or freely make, the alleged admissions.¹⁶

The document could also indicate that the person has an intellectual disability, so as to further warn the police of the need for a solicitor and/or relative to be present during any questioning, and refer to the NSW Police Commissioner’s Instructions. Although every police station has a copy of these Instructions, many police officers are unfamiliar with them.¹⁷

There still remains the difficulty of determining the criteria for the issue of such a card.

3.19 Another submission, while appearing to accept the use of a card if the bearer had sufficient intellectual capacity to know when to use the card, rejected other alternatives, such as the wearing of some form of identification:

It would be undesirable and stigmatising for an intellectually disabled person to wear any badge indicating his/her disability; even if some neutral “badge” were adopted eg indicating membership of some association or group, it would be likely to become identified in time as relating to an intellectual disability.¹⁸

The same submission suggested instead the need for an education campaign for police which should:

• include advice on recognising the presence of intellectual disability;

• sensitising police to the particular approach needed and the likely problems to be faced;

• bringing police into contact with persons with intellectual disability and those caring for them to familiarise police with the needs problems and reactions of people with intellectual disability; and

• hopefully removing misconceptions and prejudices which may be present (reflecting attitudes of many in the general community).¹⁹

3.20 It is the tentative view of the Commission, as a result of the concerns set out above, that a card system would not be of assistance for the majority of people with an intellectual disability. Apart from the fact that many people with an intellectual disability are unlikely to wish to carry or use such a card, the Commission believes a card-based identification system would have other difficulties, for example deciding who should (or should not) receive such a card and arranging for its issue. This would be particularly difficult as many people with an intellectual disability are not connected to any service. There is also the possibility that police could use the absence of a card (if a person did not have one or forgot to produce it) as sufficient reason for not using the established safeguards for people with an intellectual disability in police questioning. There is nothing to stop, of course, an individual handing a prepared card, along the lines of the “Rights Assistance Card” referred to above, to a police officer but the Commission does not believe such procedures should be formalised. The Commission, however, still seeks submissions about appropriate ways of assisting both police and people with an intellectual disability in relation to identification of a person’s disability.

TENTATIVE PROPOSALS FOR REFORM: IDENTIFICATION

6. Police should have 24-hour access to experts to provide advice, answer specific questions or arrange assessments about whether or not a person in custody or being questioned has an intellectual disability.

7. The Commission suggests that the Department of Community Services (DOCS) is the appropriate body to provide such a service in relation to identification and other information as it is the major service provider to people with an intellectual disability throughout New South Wales. The same 24-hour service would be able to provide other useful information, such as: the availability of services for people with an intellectual disability in the area; and advice about intellectual disability generally. The Commission believes that liaison between the police and DOCS is crucial in this area. The type of information which could be released and the assistance which could be provided through such a 24-hour service will need to be developed after further consultation in relation to issues of privacy and confidentiality.

8. A Code of Practice (or the Police Commissioner’s Instructions) should repeat (or at least cross-reference) the guidelines currently provided for identifying and interviewing victims with an intellectual disability in the section of the Instructions relating to questioning suspects with an intellectual disability.

9. These guidelines should be amended to include indicators of intellectual disability and some suggested questions about the person’s background and education, together with some tasks and observations, which can be used to indicate to the police that a person may have an intellectual disability. However, it must be made clear that such factors are only to serve as a guide and there must be expert assessment to identify properly intellectual disability.

10. The guidelines should specify that if a police officer has any reason to believe that the person being questioned has an intellectual disability, the officer must follow the procedures for questioning a person with an intellectual disability, such as the presence of a lawyer and Support Person. In other words, police should err on the side of inclusion, to ensure that the necessary safeguards are put in place for vulnerable persons.

11. A card-based intellectual disability identification system is not considered appropriate or beneficial, and should not be encouraged.

1. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993).

2. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 7.

3. Senior Constable P Fernandez Submission (8 December 1991) at 2.

4. Police Commissioner’s Instruction 67.06.

5. Legal Aid Commission of NSW Submission (24 July 1992) at 3.

6. Submission (September 1992) at 6-7.

7. See Illawarra Disabled Persons’ Trust Submission (10 August 1992) at 2-3.

8. Submission (16 October 1992) at 6-7.

9. Victoria Police Intellectually Disabled Offenders and Victims (Law and Procedure Publication Section, 1990) at 6-7.

10. Ierace at 7-8.

11. New South Wales Sexual Assault Committee Submission (August 1992) at 3.

12. B L Irving and I K McKenzie Police Interrogation: The Effects of the Police and Criminal Evidence Act 1984 (The Police Foundation, London, 1989) at 234.

13. See Mr P Hutten Submission (14 July 1992) at Appendix A.

14. Illawarra Area Consultative Committee meeting (12 August 1992) at 4.

15. Confidential Submission (24 July 1992).

16. Citing R v Merritt and Roso (1985) 19 A Crim R 360.

17. Ierace at 22.

18. Mr W Everson, ACT Council on Intellectual Disability Submission (20 July 1992) at 1-2.

19. Submission (20 July 1992) at 2.