MAJOR FINDINGS

4.1 The most important finding from the study is that, using a non-verbal, untimed test of fluid intelligence, 14.2% of the sample achieved a standard score (SS) of below 70 (that is, within the range of intellectual disability) and a further 8.8% had a SS between 70 and 79 (that is, in the borderline range). A total of 25% fell below a percentile rank (PR) of 10, which means they would be performing below 90% of the population as a whole, and 13% were at or below a PR of 1, that is, below 99% of the population. In other words, lawyers and magistrates may find that one in four of the people appearing before local courts have intellectual deficits (including difficulties in verbal skills, memory, reasoning, and understanding) which make it extremely difficult for them to participate adequately in the process of justice.

4.2 A second major finding is that 31% of the sample tested fell below the cut-off point on the Mini-Mental State Examination (MSE) which indicates the need for further mental state assessment. This group may include people who have psychiatric problems, who are severely affected by stress, affected by drugs or alcohol, or who have difficulty speaking English, as well as those who have an intellectual disability.

4.3 There is some correlation between the K-BIT and the MSE, particularly in the sub-sections of serial sevens, and backwards spelling (the two most reliant upon school-learnt skills). Nevertheless, each test identified some subjects as “cases” who were not so identified by the other test, indicating that to some extent each test assesses different mental abnormality factors.

4.4 A total of 26 individuals had a SS of <80, and 26 had an MSE score of <22. Identification by both tests occurred in 16 subjects, but a further 10 subjects on the K-BIT, and a different 10 on the MSE were identified as “cases”.

4.5 Thus, an overall total of 36 subjects (30% of the total sample of 120) had results which indicate that for some reason they would have serious difficulty in comprehending or coping with court procedures, and may need further expert assessment.

4.6 The results also indicate that many of the sample who have SS <80 possess characteristics which, if their intellectual disability is not recognised and disclosed during court proceedings, may lead magistrates to impose sentences at the serious rather than the lenient end of the scale. Such factors have been identified in previous research studies (see Chapter 1) as including:

(a) lack of pre-sentence report with recommendations for alternative disposition;

(b) serious criminal record;

(c) gender (more males in the SS <80 group);

(d) gender and background (females who are economically disadvantaged, have a previous record, or are welfare recipients tend to receive harsher sentences);

(e) the offence label being more “serious” than the criminal act itself;

(f) not legally represented.

4.7 The general findings of this study support the hypothesis that people with an intellectual disability and those with other mental abnormalities are over-represented in terms of local court appearances. This may in turn contribute to their over-representation in prison populations. The design of the study did not allow direct investigation of the proposition that persons with an intellectual disability may be differentially treated by the court. Nevertheless, many of the personal, social and demographic characteristics of people with an intellectual disability in this study are characteristics which other research has found to contribute to severity of sentencing (see Chapter 1).

REPRESENTATIVENESS OF THE SAMPLE

4.8 The sample was found to match closely the statistics for New South Wales local court appearances in 1991 and other demographic data in many major respects, including type and severity of offence, and frequency of legal representation.^{1, 2}

4.9 The sample appeared to be different from other available demographic data in terms of the following:

(a) under-representation of Aboriginal/Islander subjects; a major limitation of the study, given previous studies which indicate that there is a greater prevalence of intellectual disability and of social and adaptive deficits (particularly communication skills deficits) amongst Aboriginal prisoners.³

(b) slight over-representation in the sample of persons not born in Australia, compared with the general population;

(c) over-representation of unemployed persons, compared with the general population (although statistics are not available for rates of unemployment amongst the criminal accused);

(d) different age profile, compared with 1991 New South Wales local court statistics, the sample being over-representative in the 18 or less age range, and under-representative in the 25-29 years range.

4.11 It would be likely, therefore, that the prevalence of intellectual disability and other mental abnormality found in this study would reflect New South Wales local court appearances generally.

RECOGNITION OF INTELLECTUAL DISABILITY

4.12 An important issue in relation to intellectual disability in the criminal justice system is whether its presence is recognised. Unless recognised, this significant characteristic cannot be taken into account in the decisions concerning alternative disposition, dismissal of the case on the grounds of mental abnormality, special pleading, or mitigation of sentence.

4.13 The difficulties of recognising an accused with an intellectual disability (or any other mental abnormality) are highlighted by the fact that the field researchers in this study did not accurately identify many “cases”, despite having some background in the area and perhaps having the opportunity to interact with the accused to a greater extent and in greater clinical depth than would often be the situation for magistrates or lawyers representing the client.

4.14 The difficulties of recognition are exacerbated by the fact that accused persons generally present themselves as well as possible for the court appearance. They wear their best clothes (or borrow from family or friends); they have had impressed upon them the need for behaving in an acceptable way; they have been schooled to answer a set routine of questions using a by now familiar script. Obvious indicators, such as being in receipt of a Disability Support Pension, are frequently not present. Most importantly, the accused with an intellectual disability is likely to have spent their lifetime attempting to disguise their deficits. Intellectual disability is not readily identifiable from appearance or presentation in the majority of cases.⁵

4.15 When the presence of an intellectual disability is noticed, it is most likely to be by the lawyer, probably owing to the fact that the lawyer spends some time with the client going over the life history, the facts of the case and the possible defences. Lawyers may notice memory, reasoning or speech difficulties present in the client.⁶ The significance of the fact that if intellectual disability is recognised, it is likely to be by the lawyer is highlighted by the fact that 30% of this sample indicated that they did not have legal representation. Therefore there was no opportunity for this rough screening process to occur.

4.16 The more prolonged and serious the case, the greater the likelihood that the presence of an intellectual disability will be recognised by one of the parties coming into contact with the accused, simply because there is greater interaction, but also owing to the fact that there is more emphasis upon finding a mental abnormality for defence purposes.

CONCLUSIONS

4.17 The results indicate that nearly one in three persons appearing before New South Wales local courts may have a mental abnormality warranting further expert assessment, and one in four is at a significant disadvantage in understanding the criminal justice process, owing to mild intellectual disability or borderline intellectual ability.

4.18 As indicated in above, the most significant and primary issue is the recognition of intellectual disabilities amongst persons who come into contact with the criminal justice system.

The identification of individuals with mental retardation in the earliest stages of the criminal justice system, though desirable, is highly unlikely in many communities across the nation. It does not depend on screening and testing instruments so much as on community involvement, commitment to integrate, and professional and advocate vigilance. Unfortunately, even in communities where comprehensive service systems exist, this population tends to be shunted aside and virtually abandoned.⁷

(a) presence of a triage nurse, with psychiatric and intellectual disability training, at court so that the judiciary and lawyers can ask for immediate assessment if mental abnormality is suspected. The nurse has telephone and computer access to mental health and intellectual disability services and can obtain information about previous assessments, placements and management programmes.⁸

(b) interdepartmental models, which combine the expertise of intellectual disability specialists with criminal justice personnel such as probation and parole officers. The model scheme for such co-operation accepts only offenders with a diagnosis of intellectual disability.⁹ Similar schemes, such as one operating in Queensland, involve clients already known to intellectual disability services.¹⁰

(c) screening of accused persons held in custody. If screening is conducted, it must encompass all of the population, not simply those who attract the notice of custodial officers, and it must be followed by comprehensive assessment by experienced professionals, because screening tests are (almost by definition) less reliable than individualised evaluations.¹¹

(d) training of criminal justice personnel. Training programmes must include the judiciary, lawyers, police, probation and parole (or community corrections) officers, and custodial officers. It has been stated that: “few law schools teach anything that would help a fledgling lawyer confronted with [an intellectually disabled] client”.¹² The New South Wales Police Commissioner’s Instruction 37.14, states that a person with an intellectual disability should be interrogated in the presence of a parent, guardian, relative, friend, or other responsible person not associated with the inquiry. This is only likely to be adhered to, however, if the instruction is known to police, and if they can recognise the presence of intellectual disability. Given current training programmes, these conditions may not occur. Since in practice most recognition of intellectually disabled persons is accomplished by their lawyers (see Chapter 1, para 1.44) the most productive area of training may involve the legal profession. Following identification of the presence of intellectual disabilities, the judiciary, barristers and solicitors all must then be aware of the options which exist for the client with an intellectual disability, in terms of special legislative provisions, defences, alternative dispositions, sentencing options, and mitigation. Comprehensive manuals exist which can assist lawyers.¹³

4.21 It is also imperative that comprehensive and systematic procedures be established for expert follow-up assessment by psychologists, psychiatrists and other health professionals experienced in the area of intellectual disability. Under no circumstances should lawyers be regarded as the clinical assessors. With training, lawyers will be more likely to recognise the possible presence of intellectual disability, psychiatric illness, and other personality or behavioural problems. It should be emphasised that whilst a lawyer may have the feeling that something about a client is not typical, this can arise from a great many personal, cognitive, emotional and psychological factors. The second and most significant aspect of training programmes for the legal profession concerns how to access and apply expert assessments.

4.22 The final and most important recommendation is that the issue not be ignored. Whilst individuals with intellectual disabilities must be treated as individuals (there can be no single cut-off point for fitness to be tried, for example) and their cases managed as individual cases, there is enormous need for community, judicial, and criminal justice system awareness and management of the fact that possibly one in four accused persons in local courts will have extremely curtailed cognitive, social and adaptive skills, and possibly be unable to follow the court proceedings in any meaningful way.

FUTURE DIRECTIONS

4.23 The study reported here is unique. The only known court cohort study previously reported was conducted on convicted offenders in the county of New York, in a Psychiatric Clinic, and was reported in 1961.¹⁴ The logistics of conducting court cohort studies are factors which may have militated against this type of research, particularly when researchers wish to go beyond statistics relating to offence categories, and demographic data, and study personal attributes and skills.

4.24 Obtaining co-operation from court authorities can be a major stumbling block. Happily, this study received support from the Chief Magistrate of the Local Courts of New South Wales, the New South Wales Law Reform Commission, the New South Wales Law Foundation, individual magistrates, clerks of the court and lawyers. Given that level of assistance, the study was able to proceed. An individual researcher or team may find it extremely difficult to obtain permission to conduct research in court houses.

4.25 The second major challenge was to obtain the cooperation of volunteer subjects on a day which must have been stressful and confusing for them. The interpersonal skills and professionalism of the field workers was an important factor contributing to the success of obtaining a sample of 120 participants.

4.26 This project has demonstrated that, under favourable conditions, court cohort studies of behaviour and intellectual ability are feasible. This is in itself an important outcome. This study must be viewed as pioneer work - there is a significant need for follow-up studies, which could include research in the following areas:

(a) a replication study with a larger sample of local court appearances;

(b) a similar study in higher courts;

(c) replication studies in other Australian states;

(d) follow-up research reporting on the outcome of the case and the penalty (if one is imposed);

(e) a study of the correlation between the likelihood of police or lawyers identifying the presence of intellectual disability, and the actual presence of intellectual disability amongst a cohort of persons charged with offences;

(f) an evaluative study of the costs, benefits and viability of triage screening by an appropriately trained health professional located in a courthouse; and

(g) a screening study of persons brought into police stations for questioning about criminal matters, to determine the prevalence of intellectual disability at that stage of the criminal justice system.

FOOTNOTES

1. NSW Bureau of Crime Statistics and Research New South Wales Criminal Courts Statistics 1991 (Attorney-General’s Department, 1991).

2. New South Wales Year Book 1990 (No 72, Australian Bureau of Statistics, Sydney, 1990).

3. S Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (Report to the Criminology Research Council, Canberra, 1988).

4. Hayes and McIlwain (1988).

5. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992).

6. J McAfee and M Gural “Individuals with mental retardation and the criminal justice system: the view from the State Attorneys-General” Mental Retardation 1988; 6:5-12.

7. J J McGee and F J Menolascino “The Evaluation of Defendants with Mental Retardation in the Criminal Justice System” in R W Conley, R Luckasson and G N Bouthilet (eds) The Criminal Justice System and Mental Retardation. Defendants and Victims (Paul H Brookes, Baltimore, 1992) 55-77 at 62-63.

8. P Gherardi, Regional Senior Psychologist, Justice Department, Auckland, New Zealand (personal communication, September 1989).

9. H L Wood and D L White “A Model for Habilitation and Prevention for Offenders with Mental Retardation” in Conley, Luckasson and Bouthilet (1992) at 153-165.

10. T Attwood, Senior Clinical Psychologist, Department of Family Services and Aboriginal and Islander Affairs, Queensland (personal communication, October 1990).

11. McGee and Menolascino (1992).

12. T Russell and C A Bryant “The Effects of a Lecture Training Program and Independent Study on the Knowledge and Attitudes of Law Students Towards the Mentally Retarded Offender” J Offender Counselling Services and Rehabilitation 1987; 11 (2):53-66.

13. Hayes and Craddock (1992); and M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989).

14. E Messinger and B Apfelberg “A Quarter Century of Court Psychiatry” Crime and Delinquency 1961; 7 (4):343-362.