OVERVIEW

4.1 This chapter summarises the reforms to the criminal justice system suggested by people with an intellectual disability through the consultation process described in the previous chapters. It also contains the Commission’s observations about the group consultations from the perspective of the Commission’s reference to review the law and practice relating to the treatment of people with an intellectual disability in the criminal justice system.

4.2 The Commission undertook these consultations to provide people with an intellectual disability with the opportunity to comment on the criminal justice system. The Commission received positive comments about the consultation process from both participants and their service providers. Participants appreciated the efforts made by the Commission to set up a forum in which they could express their views and many participants were enthusiastic about taking part in further consultations. Though the limited size of the consultations must be kept in mind when assessing the conclusions drawn from it, trends could be observed within the six groups which are discussed in this chapter. The consultations have assisted the Commission to gain a better understanding of the difficulties faced by people with an intellectual disability in the criminal justice system. The Commission also considers that the observations gained from this qualitative sample provide information that may also be useful for service providers, police, lawyers, and court or custodial personnel.

COMMON EXPERIENCES IN THE CRIMINAL JUSTICE SYSTEM

4.3 The experiences and comments related by participants highlighted the difficulties that people with an intellectual disability can encounter in police stations, court rooms and in the community. Most participants had some knowledge of the criminal justice system. Much of this information had been obtained through the medium of television so that most participants were familiar with the terminology of the criminal justice system, types of offences, courts, prisons and the police, but many participants also appeared to have personal experience of parts of the system.

4.4 Actual experience of the criminal justice system tended to be as a victim or witness. Some participants said they had been offenders. These participants were less likely to choose to discuss their experiences and may have been more numerous than indicated in discussions. Many participants had experiences with courts, whether as an offender, a witness or in family law matters. All of the participants had a partial understanding of some parts of the system. However, despite the generally good communication skills and low support needs of group members, there were still areas of confusion and unfamiliarity. Many participants appeared to be unaware of the importance or the consequences of some of their experiences within different parts of the criminal justice system.

4.5 Even when the majority of participants answered that they were familiar with a concept, for example the role of the police, there was often still some confusion. For example, most people had heard of the police caution but many were unable to explain clearly what it meant or appreciate the significance of the words in relation to their own legal rights. The need for careful explanation of the consequences of actions and the range of options available in such situations became obvious.

4.6 Participants appeared to have had much more contact with the police than with other sections of the criminal justice system and accordingly this part of the session produced the most discussion and suggestions for change. It is interesting to note that most participants identified the police in a positive role. The first question put to the groups on this subject related to the role of the police in the community. This generally produced a range of positive responses focussing on the ways in which the police help people. Despite this, in later discussions, some of the participants agreed that police stations were “scary” and this was associated with the anxiety of being questioned and the possibility of being locked up and put in an institution. This ambivalence towards the police is likely to be a common community reaction; however, it may be more marked in people with an intellectual disability. It may also be that some of the questions asked in this part (“Some people say that police stations are scary. They say that police asking them questions is frightening. Why do you think this is? What could make it less frightening?”) suggested the answers given.

4.7 Some participants believed that the police had greater powers than they actually formally possess. This may lead to greater anxiety in relation to the police for people with an intellectual disability than for other people in the community, as they may fear that police have the power to detain them in institutions against their will. This fear was mentioned by a number of participants. It has been suggested that, as many people with an intellectual disability do not understand the trial process, they believe that it is the police who have the power to make ultimate decisions about gaol or other detentions. Such fear may decrease with greater education about the role of the police. This issue may be worth exploring later in further research.

4.8 The experiences and comments related to the Commission were similar to those found in a 1987 New South Wales survey of people with an intellectual disability about attitudes to the police. As part of that survey a questionnaire was distributed to a number of people with an intellectual disability who had not had any official contact with the police. Of the 76 people who responded, most had a positive attitude towards the police and only a small percentage (13.2%) said they were afraid of them. Of concern, however, was the fact that most of this group were generally unaware of their legal rights and 77% said that they would sign anything the police requested. Again, a support person who was well known to the person was seen as important, with nearly all respondents (93%) stating that they would like someone, such as parents or their workshop supervisor, to accompany them if they were interviewed by the police.¹

PARTICIPANTS' SUGGESTIONS FOR REFORM

4.9 The discussion was designed to explore particular areas of the criminal justice system, such as the police and the roles of victims, offenders and witnesses. Once a level of understanding had been established and participants had been encouraged to voice their own understanding of, and experiences with, a particular issue, they were then invited to suggest ways in which that situation or circumstance could be made better or easier for people with an intellectual disability. The majority of suggestions made related to changes to the way the police behave towards people with an intellectual disability.

The Police

4.10 Most participants felt that the police did not know much about intellectual disability and that they should have to undertake some sort of special training to learn about it, including how to react or respond to a person with an intellectual disability. Personal contact with people with disabilities was seen as important. It was suggested that the police needed to meet people with a disability, or participate in discussions with them (such as the consultation groups conducted by the Commission), to gain an understanding about people with an intellectual disability and how to communicate effectively with them. Some participants indicated a willingness to speak to the police and referred to the benefits that such contact would afford. It was also suggested that this understanding could be achieved by people with a disability working with the police on a voluntary basis to increase understanding on both sides. Specialist units, consisting of officers who had been specially trained about intellectual disability was raised as an option by one participant. Another suggested that there should be a police officer who has experience with people with disabilities at police stations.

4.11 It was also suggested that having a third person present, such as a social worker or some other kind of advocate or support person, would be helpful in reducing stress and aiding communication with the police. This seemed to be particularly important in relation to the need to fill out forms. It was proposed that police could have a list of contact numbers for support people. There was also a common awareness that some people with higher support needs would experience greater difficulties in some situations than the group members.

4.12 Other suggestions for reform included the need for appropriate questioning, with police being more sensitive to the additional difficulties faced by a witness with an intellectual disability, both at the police station and in the court room. It was stressed that police should take care with language, not talking too fast or using inappropriate or suggestive language, and take more time to question people. It was suggested that people with a disability should have their legal rights clearly explained to them, with police officers carefully checking that they understand these rights if they are charged.

Lawyers

4.13 There was not a great deal of familiarity with the role of lawyers, and some confusion between the role of lawyers and other support persons or other personnel within the criminal justice system. The comments of the groups raised the need for lawyers to use language that is accessible, rather than “big words”. Group members also wanted lawyers to teach them about the law and their legal rights. Similarly they thought lawyers should themselves know more about intellectual disability.

Courts

4.14 Again group members often felt the need for a support person when attending court, in whatever capacity. There was also a perception that court personnel and judges did not know much about intellectual disability.

Custodial options

4.15 This area was not discussed in great detail in the groups. Some participants who answered questions relating to reform in this area felt that prison was not an effective way to teach people with an intellectual disability that the crime they have committed was wrong. A “gentler” alternative was suggested, such as a farm or secure place, away from mainstream prisoners, or community service. Some people felt that people with an intellectual disability should be given a warning, do community service or pay a fine, rather than be sent to gaol the first time they commit a crime. A number of participants in different groups, however, called for longer or harsher gaol sentences for people who have been found guilty of crimes, whether or not they had a disability.

Learning about the criminal justice system and reporting crime

4.16 Participants wanted the criminal justice system to be simpler, with more appropriate and sensitive assistance. Group participants had a range of suggestions for mechanisms to be implemented to help people with an intellectual disability understand what a crime is and how to report it. Many participants were reluctant or apprehensive about reporting crime, often through fear of not being believed or lack of understanding about how to go about it. Again a support person was thought to be important when going to the police. Classes, videos, posters, cassettes, brochures and books discussing and explaining crime and legal rights were all thought to be beneficial. A 24-hour hotline with information for people with disabilities was also suggested by one participant. Group members wanted information which was easily accessible and appropriate, particularly for people who found reading and writing difficult. Group members were particularly enthusiastic for talks to be conducted between themselves and lawyers or police officers so that the level of understanding could be increased for everyone involved.

OBSERVATIONS AND IMPLICATIONS FOR THE CRIMINAL JUSTICE SYSTEM

4.17 The remainder of this chapter contains the Commission’s observations, in general terms, about the groups and the participants. The observations contain input from most of the discussion leaders but are of necessity limited in their scope and content. The Commission stresses that these observations are not necessarily true for all group members, or indeed for all people with an intellectual disability, who cannot and should not be treated as a homogenous group. Some of these observations may appear to be obvious to many people but they are included for the readers of this Research Report who may have had little or no contact with people with an intellectual disability.

The participants

4.18 It is important to recognise that people with an intellectual disability do not necessarily have any physical characteristic to indicate that they have a disability. It is the Commission’s observation that many criminal justice and associated professionals seem to assume that they can readily identify whether a person has an intellectual disability, primarily by that person’s appearance. However, this is not necessarily possible, either in relation to the discussion group participants or for people with an intellectual disability generally. With most of the participants their disability was not immediately obvious, but with some it became apparent through conversation. Even then, according to service providers, it takes a long period of time to develop an understanding of the person’s real abilities and level of comprehension. This was not possible within the time constraints of the discussion groups and is unlikely to be possible in many cases within the criminal justice system. It was clear from the discussion groups that for many participants one particular service provider or member of the police force had become their constant contact and source of information. Trust and understanding had been built up over a long relationship and the participant would consistently say that they would contact these named persons in relation to any difficulties in the criminal justice system. The need for continuity of personnel in service provision is therefore seen as crucial by many service providers.

4.19 There was a range of views and levels of understanding in relation to the different issues discussed. It is difficult to know whether this range is merely indicative of the lack of detailed knowledge about the criminal justice system found in many members of the general community, rather than a particular difficulty among people with an intellectual disability, as there was no control group against which to compare the discussion groups. It is likely, as discussed above, that the high level of understanding by some group members is not representative of people with an intellectual disability, even a mild level of disability. It is the range of views and understanding revealed that should be emphasised, rather than the particularly high level of understanding of some of the participants.

Communication skills and group dynamics

4.20 Service providers had been asked to recruit participants who would be able to sit and discuss issues in a group situation which lasted for approximately two hours. This meant that the groups tended to attract the most vocal, assertive and confident people with an intellectual disability and the individuals who participated were more likely to ask and answer questions. Some services used by people with an intellectual disability utilise consultation groups as a means of receiving feedback from their consumers. Accordingly, some participants were very familiar with the consultation procedure. It also was obvious in a number of cases that some participants had thought about or discussed some of the issues raised by the discussion groups before, for example through involvement with organisations such as Self Advocacy and the Redfern Legal Centre or from discussions with individual service providers. Almost all of the participants were able to express themselves without the aid of a support person and participate comfortably in the group discussion, although some appeared to be self conscious about expressing themselves and required encouragement and assistance from the discussion leaders. A number of group members, however, remained virtually silent throughout most of the discussion or would only answer if they were asked directly.

4.21 The groups were often led by the more confident speakers. There was a notable lack of “competitive” conversation during the discussions, even if there was a misunderstanding, so that few members challenged what another group member said. Often there was apparent group agreement on an issue because no member raised an objection when given the opportunity, even though only a few people made positive gestures of support. Despite the generally high level of communication skills and the carefully structured discussion, there were still areas of misunderstanding and confusion. The potential for increased misunderstanding and confusion in a less controlled and friendly environment, such as a police station or a court room, was apparent.

Level of understanding

4.22 The questioning strategy was intentionally designed to cover certain subjects. Each subject was broken down into a series of questions, dealing with that subject in a different way. This strategy allowed the discussion leaders to check the understanding of the participants in each of the subject areas. In order to maximise understanding, the strategy for discussion consisted of simple stories put into clear context, containing information and events relevant to the lives of the participants. The time spent on each particular question was limited and care was taken to reduce any possible stress that participants may have experienced by being in the group. Even in these circumstances, there were significant misunderstandings, non-responsive answers and incorrect usage of words that had been explained to the groups.

4.23 With the majority of participants it was clear that understanding increased over the two hour period, and that taking the time to explain and repeat concepts in comprehensible ways was worthwhile. It is difficult, however, for the Commission to make statements about the level of understanding of the group participants. In order to assess the actual understanding of each participant, it would be necessary to ask every question in different ways and get each member to explain their understanding of the information. This obviously was not possible for every question. It is only possible to comment on concepts that were obviously misunderstood as the actual understanding of each of the participants was possibly masked by the dynamics of the groups, as discussed above, and also was affected by the perception of the discussion leaders and the people taking notes.

4.24 For some of the participants, periods of apparent understanding were interspersed with periods of concentration lapses so that it was difficult to interpret whether a misunderstanding was due to attention span or not. A number of the participants were easily able to recount their experiences in great detail but had difficulty in recalling certain details such as names and order of events. One participant could name a list of products made at the factory in which he had worked for twelve years but was unable to recall the name of his employer. Some people knew where the nearest police station was in relation to other buildings that they knew but they were unable to give a street address. When involved in the criminal justice process, whether as a suspect, victim or witness, it is often this kind of detail that becomes important.

4.25 There was a considerable number of non-responsive answers to questions, which are not all reproduced in Chapter 3. Some participants took everything literally; for example, the phrase “ripped off”, raised in the context of a discussion about the ways in which people with an intellectual disability can be taken advantage of, was thought to refer to the removal of clothing. Similarly some participants would seize upon one word in a question or comment and relate a story which was unrelated to the issue under discussion. One participant, for example, suggested that Tony may have lit the fire “by accident” which led to comments about recent car accidents. Similarly comments about police led to discussion about hospitals and ambulances. It was sometimes a struggle to keep the discussion on track.

4.26 Even where some concepts were clearly explained, there were still times when information or concepts were confused by some participants. To check understanding, it was necessary to go back over the information and rephrase the question or have participants express their understanding of the information in their own words. Some participants responded to questions from the discussion leader by nodding or answering “yes”, even when they did not understand the question fully. This was highlighted when the discussion leader read out the police caution and some people nodded or answered “yes” to the question in the caution even though they had been told just to listen and not to respond. During one of the groups, the discussion leader appeared to express surprise that the entire group had answered “yes” to the question asked and repeated the question. This immediately prompted a unanimous “no” from the group members. The tendency of people with an intellectual disability to answer “yes” to questions asked by a person in authority or to give the answer they believe is expected has often been commented upon and has obvious dangers within the criminal justice system, particularly in the context of police investigations.

4.27 The low support needs of many of the participants made them much better able to defend themselves than those with higher support needs. However, those participants who are more confident or articulate actually may disguise (intentionally or inadvertently) their need for support or assistance. They therefore are likely to experience different problems from people with much higher support needs in the criminal justice system.

Expression and advocacy

4.28 The expressions chosen by some of the group members reflected their particular circumstances and life experiences. For example, one participant made references to her “program”. Some of these expressions could easily be confused by someone unfamiliar with the person. It was often the case that the discussion leader had a better awareness of the meaning of participant’s comment than the Commission’s staff, and was able to act as an interpreter. It became clear that, for some of the participants, the primary problem was not that they were completely unable to understand the question or were unable or unwilling to communicate a reply, but that they required the aid of a third party in the role of an advocate or an interpreter, familiar with the day to day circumstances of the individual, to provide some assistance in interpreting the language or phrasing used.

Television and language

4.29 Many participants had picked up language associated with police and court procedure from television or other mass media sources. They were able to use these phrases in the correct context within a discussion and were able to express them with some confidence. However, it only became obvious from the second or third question about a particular issue that there was often no real understanding of the meaning of the word or phrase, such as “get out on bail” or “be charged”. A false indication of the level of understanding about procedures in the criminal justice system can easily result if a person with an intellectual disability is able to use words and phrases in the correct context without true understanding. The implication for police and lawyers is that the apparent understanding of a person with an intellectual disability must always be carefully checked. The current methods of questioning or providing information within the criminal justice system may need to be adjusted in this regard. Specific proposals for reform in this area will be discussed in the Commission’s forthcoming Discussion Paper² which will consider these observations in the context of other research and submissions.

Non-verbal cues

4.30 Non-verbal cues can be an extremely effective way of communicating with another person. It has been suggested, in the context of providing a legal service, that:

People with an intellectual disability often rely more heavily than others on non-verbal cues such as frowns, shrugs and gestures. The solicitor should be aware of these inadvertent messages which he or she may be sending; for instance, a frown when the client answers a question may suggest that the answer is in some way unsatisfactory.³

This was implicitly recognised by some of the participants. One participant suggested, for example, that the volume or tone of a police officer’s voice may convince people to say that they had understood the meaning of the question where they had not really understood. Both a stern method of questioning and kindness may prompt a person with a disability to provide the answer that the police officer seems to want. Even the repetition of a question may indicate to the person that they have answered a question “incorrectly”.

4.31 During the progress of the group discussions, the non-verbal cues of the discussion leader occasionally overrode the information being given verbally, producing confusion or misunderstanding. In one situation, the discussion leader made a physical gesture with the fingers of both hands to indicate that the word being said was surrounded by quotation marks. Upon being asked the meaning of that word, the only answering participant thought that its meaning was “fingers”; that is, that it related to the discussion leader’s gesture. Such non-verbal cues may have a stronger than usual effect on a person with an intellectual disability. This may particularly be the case for a person with an intellectual disability in the criminal justice system, where the language and surroundings may be threatening and unfamiliar, and there is no effort made to facilitate understanding. The non-verbal cues then become the only means for that person to gain an understanding of the situation. This is especially so where there is a strong desire to please those who are asking the questions. Thus, the presentation and attitude of the police, lawyers, judges and other authorities within the criminal justice system may be as important as the language and methods of questioning that they use.

CONCLUSION

4.32 The Commission concluded from their consultations that, when compared to members of the general community, many of the participants in the discussion groups would be at a particular disadvantage under the present system of police questioning and when subjected to court processes. It is easy to misinterpret the level of understanding possessed by any individual. It is clear that many people in the community, not just those with an intellectual disability, have considerable unfamiliarity with their rights under the criminal justice system⁴ but this does not detract from the particular vulnerability of many people with an intellectual disability.

4.33 The limitations of this Report have already been referred to in Chapter 2; however, the Commission believes the consultations have been well worthwhile. The appreciation and enthusiasm to contribute shown by the discussion group participants highlights the fact that people with an intellectual disability do have a valuable contribution to make to reforming the criminal justice system. The members of the discussion groups were able to provide a consumers’ perspective on the present process of criminal justice and make suggestions for change. The information and opinions provided by the participants are useful for the Commission, particularly in formulating appropriate reforms to make the criminal justice system accessible, workable and comprehensible for members of our community who have an intellectual disability, taking into account some of the particular communication and other difficulties which may arise between them and the components of the criminal justice system. The consultations also show that people with an intellectual disability can and should be consulted about the laws which affect them, and that this is not something that should be put in the “too hard” basket.

4.34 The Commission will be publishing a Discussion Paper in the first half of 1993 which will again consider some of the issues raised in this Research Report and will put forward proposals for reform in relation to people with an intellectual disability and the criminal justice system, taking into account other submissions and research. A Final Report to the New South Wales Attorney General containing the Commission’s findings and recommendations for reform will follow later in 1993 and, on completion, will be tabled in Parliament.

FOOTNOTES

1. G Hyson “Police involvement: what are the problems?” (August 1988) Interaction 13-14.

2. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System (DP 29, 1993).

3. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 9.

4. The New South Wales Law Reform Commission referred to this issue in its Report Police Powers of Detention and Investigation After Arrest (Report 66, 1990) particularly paras 1.64-1.65.