People with an intellectual disability have the potential to be either the victims, perpetrators or witnesses of crimes. The criminal justice system must be able to provide for the fair treatment of all people appearing before it. For this group of people, however, equal treatment alone will not ensure that they are able to exercise their legal rights. More needs to be done to redress the imbalance caused by their lower intellectual abilities, likely communication and other difficulties, the lack of understanding of their disabilities and the discrimination to which they are often subjected.

This Report represents the culmination of five years’ investigation by the Commission into the difficulties faced by people with an intellectual disability involved in the criminal justice system. The Commission’s inquiry into this particularly vulnerable group of people arose from concerns about their over-representation and unfair treatment in the criminal justice system. In submissions and consultations there was general acceptance by criminal justice system personnel and disability representatives that people with an intellectual disability were disadvantaged in the criminal justice system and that their appropriate treatment raised dilemmas for the system as a whole. As victims, they were not able to bring their abusers to justice and as offenders, they were not receiving appropriate recognition for their intellectual condition.

This Report considers the difficulties faced by suspects, offenders, victims and witnesses with an intellectual disability, from commission of a crime and investigation by police, through to consideration by the courts and appropriate sentencing options. The Report recommends a package of reforms, recognising both the importance of legislative change (Chapters 3-8) and of administrative change (Chapters 9-11). The list of recommendations is set out in the following pages. The recommendations are designed to ensure that the particular needs of, and disadvantages faced by, people with an intellectual disability are met at each stage of the criminal justice system. In particular, the Report makes recommendations in the following areas:

• police procedures - including the need for a statutory Code of Practice regulating police investigations, with specific provision for suspects and witnesses with an intellectual disability;

• fitness to be tried - including the adaptation of procedures primarily designed for people with a mental illness to meet the particular needs of people with an intellectual disability;

• giving evidence in court - including provision for people with an intellectual disability to give evidence with the assistance of support persons or by way of closed circuit television if they are unable to give evidence in the usual way;

• sexual offences - including amendments to the existing sexual offences affecting people with an intellectual disability to overcome the practical difficulties which arise in prosecuting offenders who sexually exploit people with an intellectual disability;

• custodial and non-custodial sentencing options - including recommending additional special units and services in prisons and a Special Offenders Service to provide the necessary specialist supervision to enable people with an intellectual disability to meet the requirements of non-custodial sentences such as bonds and Community Service Orders.

The Commission believes that legislative reform alone is not sufficient. Accordingly, the Commission has also focused on such issues as education for both people with an intellectual disability and criminal justice personnel, special services for offenders with an intellectual disability and has recommended the introduction of a comprehensive co-ordinated strategy for government agencies in this area.

The Report also considers the large volume of research in this area (Chapter 2 and Appendix B) and difficult issues such as an appropriate statutory definition of intellectual disability (Chapter 3).

Apart from this Report, the Commission’s inquiry has produced six previous papers: an Issues Paper, two Discussion Papers and three Research Reports. Together the seven papers represent a significant contribution to research in this area. The papers reveal that people with an intellectual disability are over-represented in the criminal justice system as both victims and offenders. Deinstitutionalisation is likely to lead to increased contact between people with an intellectual disability and the system. Accordingly, all levels of the criminal justice system will need to be equipped with appropriate legislative provisions, expertise and resources in this area, and the issues raised in this Report cannot be ignored in any consideration of the appropriate and fair operation of the criminal justice system.