INTRODUCTION

4.1 Most people become involved with the criminal justice system through police procedures, where many important admissions and decisions are made. If there are problems at this level they will continue to affect the whole criminal justice process and will be difficult to overcome. It is therefore crucial that these procedures are fair, appropriate and take into account the particular needs of the individual involved. The Anti-Discrimination Board, in its 1981 Report, Discrimination and Intellectual Handicap, noted that a person with an intellectual disability may attract the attention of the police as a result of his or her disability; for example, being arrested for some minor infringements of the public order law and, because of the disability, being unable to properly comprehend the questions asked by police or even the reason why the information is being sought. The person therefore may be detained in situations where a person without a disability might be released.¹ There are:

many psychological and sociological factors which contribute to the fact that ... people [with an intellectual disability] are more likely than typical people to be brought into police stations and questioned about crimes ... Unhappily, the police interview does not seem to function as an effective screening procedure ...²

4.2 Furthermore, many people with an intellectual disability are unable to fully understand police detention, interviews and procedures,³ including such standard procedures as bail. Intellectual disability:

often gives rise to anxiety and considerable emotional disturbance, which is heightened by unfamiliar surroundings, strange and threatening events and happenings which are anxiety provoking even for normal persons.⁴

Questioning by police officers is therefore likely to be highly traumatic.

4.3 People with an intellectual disability do not only come into contact with the police as suspects, but also as victims and as witnesses to crimes. In each of these roles, identification by the police of the person’s intellectual disability and the consequent use of appropriate questioning techniques is essential. This Chapter attempts to identify the problems people with an intellectual disability face when coming into contact with the police and the existing mechanisms to overcome them. It points to the difficulties people with an intellectual disability may have in relation to standard police procedures such as cautioning and bail. It also raises issues of police training, for example in identification and questioning techniques, and the adequacy of the relevant police guidelines, the Police Commissioner’s Instructions.

THE POLICE COMMISSIONER’S INSTRUCTIONS

4.4 In New South Wales the primary guidance to police is found in the “Rules and Instructions” issued by the Commissioner of Police. These Instructions have already been discussed at length in the Commission’s 1990 Report, Police Powers of Detention and Investigation After Arrest.⁵ These Instructions are not freely and publicly available, and there appears to be widespread ignorance amongst police and others as to their application and content. They also have the fundamental weakness that they do not have legislative force and therefore are of limited value and can, in any event, be amended by a unilateral decision of the Police Commissioner.⁶ The Commission recommended that these protective provisions be formalised into legislation and subordinate regulations (codes of practice) with sufficient resources and accountability mechanisms to ensure that these procedural requirements and the protective features and safeguards are regularly available in practice. As at the date of this Issues Paper, however, the recommendations in that Report have not been implemented.

The Commission seeks comments about the need for the publication of a Police Code of Practice dealing with the arrest, detention and interrogation of people with an intellectual disability.

IDENTIFICATION

4.5 Police, like other community service providers, may not recognise that the person they are questioning has an intellectual disability. A person’s intellectual disability will not necessarily be obvious from appearance, and many people with an intellectual disability will 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’.”⁷ It has been suggested that many people with an intellectual disability enter the criminal justice system without their disability being detected. Police may interview a person in relation to an offence and not recognise the person’s disability for a variety of reasons, including:

• the person’s presentation and adaptive skills may mask any deficiency in intellectual functioning;
• the person may have no records, medical or otherwise, indicating disability and the person may choose not to tell police as a result of past discrimination;
• police may have had no training in identification and no past experience with people with an intellectual disability; or
• police may be understaffed, overworked or unsympathetic to the offender and may wish to get the matter dealt with as quickly as possible.⁸

4.6 Useful guidelines for interviewing victims with an intellectual disability are found in Instruction 67.06, which includes the following:

Indicators of intellectual disability include:
• short retention span
• difficulty understanding questions and instructions
• responding inappropriately or inconsistently to questions.



Consider the following:

• ensure the victim knows the reason for being there
• establish rapport and make the victim feel comfortable
• use simple language and ask short questions
• frequent short breaks may help the victim’s concentration
• the victim has the right to have a support person present, who is acceptable to the victim
• it is suggested that the statement be taken in question and answer form.

If communicating is difficult, have a specialist interpreter attend. The Developmental Disability Section of the Department of Community Services supplies information on such specialists.

Brief the interpreter beforehand not to substitute or paraphrase anything the victim says or show any emotion. The person clarifies terminology used by the victim.

These guidelines have not been repeated in the Police Instructions in the sections dealing with investigations and arrest though they are equally applicable to the suspect with an intellectual disability.

POLICE TRAINING

4.7 Unless police are trained to recognise people with an intellectual disability, police guidelines for appropriate treatment of such people will be ineffective. Within the present six month police training course new recruits are trained to identify people who are behaving “unusually” in the circumstances in which they are found. Networking with local community organisations is encouraged so that police can divert people from the criminal justice process or take account of their special needs during questioning. The exercise of this discretion to divert, however, is usually the responsibility of more senior officers. Police educators still only have a relatively short amount of time (6 months) in which to train recruits in all aspects of police work. New police officers receive much of their training “on the job” from senior officers and will be particularly susceptible to their attitudes and procedures. Staff Development days also occur at each Police Station, but the amount of time which can be given to issues such as intellectual disability will be necessarily limited and affected by police priorities.

4.8 There are 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. There are a number of other practical tests 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. Such training would need to be introduced throughout the force and not merely be directed towards the new recruit.

The Commission seeks comments as to the appropriateness and efficacy of introducing these or other identification tests into police practice.

POLICE QUESTIONING

4.9 People with an intellectual disability are likely to be overly impressed by authority figures and to respond obligingly to suggestive questioning. For example, many people with an intellectual disability tend to answer “yes” to any question asked by an authority figure.⁹ This will place them at a particular disadvantage in police questioning. Another difficulty is that people with an intellectual disability may have poor longer term memory, particularly about such factual matters as dates and times. Prompt interviewing is therefore crucial. People with an intellectual disability also may not comprehend the level of language used or common police questions or concepts, for example, those involving time sequencing or “the right to remain silent”. As well, such people are likely to have difficulty in maintaining concentration for the long periods often involved in police questioning. People with an intellectual disability are often perceived, by the police and lawyers, as unreliable witnesses. Often the problem is one of communication, rather than unreliability. A further problem, discussed in Chapter 3, is a lack of understanding by people with an intellectual disability about criminal conduct in general.

4.10 Instruction 37.14 of the Police Commissioner’s Instructions deals with questioning people in the course of an investigation. One of the “Guidelines for questioning people” states:

When dealing with infirm people, those with feeble understanding or special disability, or apparently unfamiliar with the English language, take appropriate measures to ensure a fair interrogation.

Further details are provided under the heading “Questioning people of feeble understanding” as set out below.

If you suspect the person being questioned is of feeble understanding, interview the person in the presence of an appropriate adult, unless you can clearly establish there was proper and sufficient reason for the absence of an appropriate adult.

The term, appropriate adult, means:

• a relative, guardian, friend, or some other person responsible for the care or custody of the suspect concerned,
• a person who has experience in dealing with the mentally ill, handicapped or feeble minded,

but does not include a police officer or a person employed by the Police Service.

If the above adults are unavailable, use another responsible adult who is not a police officer or a person employed by the Police Service.

4.11 The antiquated phrase, “feeble understanding”, is not defined in these Instructions, but it seems clear that the term is meant to include people with an intellectual disability. In other parts of the Instructions terms such as “mentally handicapped”, “mentally retarded” and “intellectually disabled” are used, also without definitions. This proliferation of terms is likely to be confusing for police officers. There are no guidelines provided to enable police officers to recognise when they are dealing with a suspect who suffers from “feeble understanding”, or what is a “proper and sufficient reason for the absence of an appropriate adult”. Such a standard could be open to abuse. There are a number of services which will provide a suitable independent third party or “citizen advocate” to attend when a person with an intellectual disability is being questioned. It would seem appropriate that contact telephone numbers and names of such organisations be provided to the police, either in the Instructions or otherwise.

4.12 It has been suggested that a friend or relative of the interviewed person is not necessarily the best choice for this role, as they may be just as unfamiliar with and overwhelmed by police procedure. As such they may not be in a position to fulfil their role of advising the person being questioned and observing whether or not the interview is being conducted fairly. They may also lack the necessary objectivity or be too eager to assist the police, to the possible detriment of the interviewed person.¹⁰ The presence of a friend or relative may also:

suggest that the police questioning has the imprimatur of the respected relative, so that [a person with an intellectual disability] feels even further obliged to co-operate against his or her inclination.

This may be particularly dangerous if the police use the relative or other similar person as a ‘translator’. The effect on the suspect ... could then become, in his or her eyes, one of answering a question asked by a relative, rather than a police officer for the purposes of evidence.¹¹

The Commission seeks further information about whether this Instruction (providing for the presence of an "appropriate adult") is being followed in practice and whether it provides the intended protection to people with an intellectual disability.

The Police Caution

4.13 According to the Police Commissioner’s Instructions, the caution to be used before questioning a person suspected of committing a crime is as follows:

I am going to ask you certain questions. You are not obliged to answer unless you wish to do so, but whatever you say may be used in evidence. Do you understand that?¹²

The caution ends with a question inviting a “yes” or “no” response, which, to a person with an intellectual disability, could invite the answer “yes” without comprehending its meaning.¹³ It is also arguable that a person with even a mild intellectual disability may have difficulty in understanding the full connotations of this caution.¹⁴ For example, an English study of adults with an average age of 28 years and IQs ranging from 73-80 indicated that 4 out of 5 did not understand the official caution: 60% knew what “evidence” was, but none knew what “obliged” meant.¹⁵ One police officer with considerable experience with people with an intellectual disability commented that in his experience no suspect with an intellectual disability has been able to understand the standard caution.¹⁶

4.14 Mark Ierace, a barrister who practises extensively in this area, believes that some alternative form of the caution is required, breaking it down into a simple question/answer format.¹⁷ Alternatively, a pamphlet produced by the Office of the Public Advocate (Victoria) recommends that, to ensure that a person with an intellectual disability understands the caution, the following question be asked: “Do you have to answer any of the questions the police ask you?” This is intended to overcome the tendency to answer “yes” to any question asked by an authority figure.¹⁸ It may be impossible, however, to draft a standard caution which can be understood by all people with an intellectual disability.

4.15 A similar problem arises in relation to the standard questions which the police are required to ask at the end of an interview where a statement has been taken to ensure that the suspect “adopts” the document as an accurate record. The questions, found in the Police Commissioner’s Instructions,¹⁹ use the wording of s 410 of the Crimes Act 1900 (NSW) and include such questions as:

Q. Were you cautioned before making this statement that you were not obliged to make this statement unless you so desired, as anything you did say may be taken down in writing and may be used in evidence?

The length of the sentence, the complexity and conceptual nature of the language used means that such questions are unlikely to be understood by a person with an intellectual disability, though such questions may well elicit a “yes” or “no” answer from the suspect, without indicating his or her lack of comprehension.²⁰

Confessions

4.16 As people with an intellectual disability often are overly impressed by authority figures and anxious to please, or may not understand the questions asked, it is more likely that such a person will confess to an offence, though this confession will be unreliable. Ironically, the more understanding a police officer shows to the needs and language difficulties of the person, the more likely that person may be to confess in their eagerness to please. People with an intellectual disability often will not understand the consequences of their “confession”. One police officer has commented:

Police must remember the person being interviewed has been conditioned for many years to do what he is told ... With the constant caring for them and people teaching them all their lives they begin to lack assertiveness. Other reasons they may confess to any crime or agree to any question, are that they do not understand, they do not wish to appear stupid or don’t understand the consequences of agreeing to questions. The system to them is confusing and they wish to finalise the matter as quickly as possible.²¹

In relation to confessions, Instruction 37, headed “Doubtful Confessions”, states:

Many people, from psychopathic or other causes, confess to crimes they did not commit, therefore, closely examine confessions before accepting them as statements of fact.

Before charging a person with a criminal offence on the basis of a confession, carefully investigate further to adduce independent corroborative evidence of the complicity of that person in the crime.

If you cannot find such corroboration, refer the matter to a senior officer for review, preferably one with detective experience, before preferring a charge.

THE DECISION TO CHARGE

4.17 At some stage during the investigation of an alleged offence, the police make a decision whether or not to charge the suspect.²² The police have considerable discretion in this regard. Police may be unwilling to charge a person with a documented history of intellectual disability, especially if the offence is a minor one, and may return the person to his or her family or residential institution. Police may also fear that the case will not proceed and that it will be a waste of their time.

4.18 A recent report of the Victorian Office of the Public Advocate argued that it is contrary to the principle of normalisation and not in the interests of the person to decide not to charge because of a perception that people with an intellectual disability are childlike and therefore not “responsible” for their actions or that they are in need of “treatment”, rather than the sanction of the law, for their offending behaviour. The Report stated:

When a person is not charged, on [the above] grounds, they are being denied the right to an open examination of their guilt or innocence. They are denied the possibility of acknowledgment of any mitigating circumstances in relation to the possible offence. They are possibly condemned to periods of additional social control or restriction of possibilities for development which might otherwise be open to them eg denial of participation in particular vocational or residential programs on the basis of a ‘difficult’ reputation.

The right of the person with an intellectual disability to an open examination of the instances leading to an incident can only be safeguarded by proceeding through the normal legal procedures of charging and trial.²³

The Attorney General’s Committee commented, in relation to diversion from the criminal justice system, as follows:

Discretion should be used prior to charging an intellectually disabled offender. Such discretion is available to police when administering cautions for example, to children, rather than charging them. This diversionary process is a recognition of the suitability of such a course and the inappropriateness of involving a young person in the criminal justice system. In certain situations it is equally inappropriate to charge an intellectually disabled offender thereby involving him or her in the criminal justice system. It is not proposed, however, that a lenient approach be adopted by the police as this may have the negative impact of reinforcing unacceptable behaviour in an intellectually disabled offender. If it can be firmly impressed on the offender by the police that certain behaviour is inappropriate and unacceptable, then diversion from the criminal justice system at this stage may be most beneficial.²⁴

BAIL

4.19 Under the Bail Act 1978 (NSW) senior police are authorised to grant bail to a person charged with an offence. The police officer is required to give the accused person “such information in writing respecting his entitlement to or eligibility for bail as is prescribed by the regulations”.²⁵ A person with an intellectual disability is unlikely to be able to read and comprehend such a written form. If the police refuse to grant bail, the issue is referred to a court. Similar considerations will apply whether the decision maker is a police officer or a court and many of these considerations will work against a person with an intellectual disability. Section 8(2)(a) states that there is a right to release on bail for most minor offences unless, for example:

(i) the person has previously failed to comply with a bail undertaking given or bail condition imposed in respect of the offence; or

(ii) the person is, in the opinion of the authorised officer or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection.

4.20 Ierace has noted that the behaviour of a person with an intellectual disability is sometimes mistaken for that of a person who is under the influence of alcohol or a drug, for example by failing to comprehend simple questions.²⁶ He has also commented that the criteria to be considered by the court or by the police in considering bail applications²⁷ may mean that a person with an intellectual disability is less likely to receive bail. Pursuant to the Bail Act 1978 (NSW), s 32(1)(a), the court or police are to consider such matters as "the person’s background and community ties, as indicated by the history and details of his residence, employment and family situations and his prior criminal records (if known)." Further:

[i]f the applicant has an intellectual disability, the employment and accommodation history may be adversely affected by the factor of the disability. An intellectually disabled person’s opportunities for employment are restricted. A lower income has ramifications for the quality and circumstances of the applicant’s accommodation. Perhaps the applicant’s only accommodation option is boarding house-type accommodation, and thus he or she automatically would score lowly in those two categories, suggesting, perhaps quite erroneously, that he or she is not a good candidate for bail.²⁸

4.21 A person with an intellectual disability may also be disadvantaged by not understanding the necessity to comply with bail conditions or appear in court and may thus achieve a record of “failure to appear” and be less likely to receive bail on future occasions. A person with an intellectual disability may also lack the financial means to put up the necessary bail money.

The Commission seeks further information about the practical effects of existing bail procedures on people with an intellectual disability.

POLICE CUSTODY

4.22 Instruction 155 deals with people in police custody. Section 1, “Screening Prisoners”, deals with the importance of identifying pain, illness, injury or the signs of potential suicide in a person arrested, but provides no specific guidance as to identifying intellectual disability. The “Apprehending Officer” is required to make an initial assessment of the arrested person and take note of the prisoner’s physical condition and mental or emotional state. Police officers may be unaware that many people with an intellectual disability are taking some form of medication and may require continual medical attention and regular supervision for their own welfare. Communication difficulties may mean that the police do not realise the need for medical attention, or may misdiagnose the person as being already under some alcoholic or other influence.

4.23 The “Custody Officer” is given the following guidelines in relation to “Mentally ill/handicapped/retarded prisoners”²⁹:

As soon as practicable inform the appropriate adult of the grounds for detention, and whereabouts, of a prisoner who is suffering from mental illness or is mentally handicapped. Ask the adult to come to the station to see the prisoner.

In these circumstances, the appropriate adult means, either:

• a relative, guardian or some other person responsible for the care or custody of the mentally ill person
• someone who has experience of dealing with mentally ill or mentally handicapped persons but is not a police officer or employed by the police
• failing either of the above, some other responsible adult who is not a police [officer] or employed by the police.

Be aware that mentally retarded persons may have difficulty understanding questions or comments because of a slowness in reacting, short attention span, weak memory or language problems. Exercise close supervision to ensure they are not victimised by other prisoners ...

The Commission seeks further information as to the effectiveness of this Instruction and as to other necessary protective measures for people with an intellectual disability in police custody.

THE POSITION IN OTHER JURISDICTIONS

4.24 It is useful, for the purposes of comparison, to consider the procedures used by police in other jurisdictions.

The Commission seeks further information as to the guidelines or procedures applicable in other jurisdictions and their relative advantages and disadvantages.

Victoria

4.25 The Victorian Police Standing Orders require that, where a police officer believes a person may have an intellectual disability, that person be interviewed in the presence of an independent third person “to facilitate communication”. Police are also advised to allow a reasonable time for the third person to arrive and that, if no friend or relative of the interviewed person is available, a volunteer may be obtained through the Office of the Public Advocate on a 24 hour basis.³⁰ In addition, police are required to provide “non identifying statistical information” as to age, sex and the alleged offence to the Office of Intellectual Disability Services recording their contact with people with an intellectual disability.³¹ This should ensure that Victoria will have more accurate statistics as to the numbers of people with an intellectual disability coming into contact with the police.

4.26 The Office of Intellectual Disability Services also instituted, in 1989, training programs for police throughout Victoria, “to help police understand intellectual disability and its effect on charging, interviewing and accessing appropriate crisis resources.” It is particularly important that police are assisted in the identification of intellectual disability, as distinct from mental illness, and are advised of the resources available to them. The Constables’ Training Course at the Police Academy and at Airlie College Training Course have also been revised in this light.³² In Victorian courts, it has also been held that the Anunga guidelines, which specify guidelines for police to follow when questioning an Aboriginal suspect, extended to situations where a suspect is under some serious disadvantage, including “some intellectual or other handicap”.³³

England and Wales

4.27 The 1981 Report of the Royal Commission on Criminal Procedure³⁴ made a number of recommendations, including improving police training and introducing guidelines to help officers detect intellectual disability. The recommendations of the Report were codified in the Police and Criminal Evidence Act 1984 (UK) and the Codes of Practice established pursuant to s 66 of that Act. These Codes can be amended by the Home Secretary. Any breach of the Code, however, can lead to disciplinary action against the police officer involved and the exclusion of evidence by the courts.³⁵

4.28 Of particular relevance to people with an intellectual disability is Part C of the Codes of Practice, dealing with detention, treatment and questioning of persons by police officers. Para 3.6 of Part C states that if a detained person is “mentally handicapped” then the custody officer must as soon as practicable inform the “appropriate adult” of his or her whereabouts and the grounds for detention, and ask the adult to come to the police station to see the person. In the case of a person who is mentally handicapped, the “appropriate adult” is:

(i) a relative, guardian or other person responsible for his care or custody;

(ii) someone who has experience of dealing with mentally ill or mentally handicapped persons but is not a police officer or employed by the police; or

(iii) failing either of the above, some other responsible adult who is not a police officer or employed by the police.³⁶

4.29 According to para 13.1 of Part C, a person who is "mentally handicapped" must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the relevant guidelines for “urgent interviews” (see Annexure C) are complied with. If the person is cautioned in the absence of the appropriate adult, the caution must be repeated in the adult’s presence. The “notes for guidance” to this paragraph state that:

[i]t is important to bear in mind that, although ... persons who are ... mentally handicapped are often capable of providing reliable evidence they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information which is unreliable, misleading or self incriminating. Special care should therefore always be exercised in questioning such a person, and the appropriate adult involved, if there is any doubt about a person’s age, mental state or capacity. Because of the risk of unreliable evidence, it is also important to obtain corroboration of any facts admitted whenever possible ... the appropriate adult should be informed that he [or she] is not expected to act simply as an observer. The purposes of his presence are, first, to advise the person being questioned and to observe whether or not the interview is being conducted properly and fairly; and, secondly, to facilitate communication with the person being interviewed.

4.30 Under para 17.1 of Part C, any resulting action, such as laying charges, should be taken in the presence of the appropriate adult if the person is “mentally handicapped”. Also, such actions as intimate searches of a “mentally handicapped” person may take place only in the presence of the appropriate adult of the same sex.³⁷ The Code also states:

If an officer has any suspicion or is told in good faith that a person of any age, whether or not in custody, may be mentally ill or mentally handicapped or cannot understand the significance of questions put to him or his replies, then he shall be treated as a mentally ill or handicapped person.³⁸

Similarly, under para 13.2 of Part C, if the appropriate adult considers that legal advice should be taken, the Code applies as if the mentally ill or mentally handicapped person had requested access to legal advice.

4.31 The absence of the appropriate adult has significance at any hearing in relation to the matter, as is made explicit by s 77 of the Police and Criminal Evidence Act 1984 (UK), which provides:

(1) Without prejudice to the general duty of the court at a trial on indictment to direct the jury on any matter on which it appears to the court appropriate to do so, where at such a trial-

(a) the case against the accused depends wholly or substantially on a confession by him; and

(b) the court is satisfied-

(i) that he is mentally handicapped; and

(ii) that the confession was not made in the presence of an independent person,

the court shall warn the jury that there is special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.

QUESTIONS FOR DISCUSSION

4.32 A number of commentators have referred to appropriate safeguards for people with an intellectual disability in contact with the police. These can be summarised under the following headings:

• Training and identification. Police need training and professional assistance to identify whether a person has an intellectual disability and to recognise and deal appropriately with the special needs of people with an intellectual disability. Police should also be aware of the consequences of not recognising the disability and of not dealing with the person in an appropriate manner.
• Arrest and bail. Unless it is absolutely necessary, a person with an intellectual disability should be charged on summons and not arrested. If an arrest is made, unless the seriousness of the charge warrants it, bail should be automatic, though special conditions as to residence and supervision may be necessary. Police should have available to them alternatives to arrest, including the ability to take a suspect with an intellectual disability to an Admissions Centre. Such a centre should be separate from psychiatric admissions centres.
• Cautions. The mere reading of the caution may be an empty exercise and there should be a real attempt to ensure understanding. As with questions in general, police should take particular care in the administration of the official caution to ensure it can be comprehended by people with an intellectual disability.
• Questioning. Police need training in appropriate ways of questioning people with an intellectual disability and existing appropriate community resources. Police should be aware of the special susceptibility of people with an intellectual disability to authority figures and of their tendency to give answers that they believe are expected of them. Accordingly, leading questions should be avoided and an attempt made to pitch the language at a level which will be understood.
• Presence of a third party. No interrogation of a person with an intellectual disability should take place unless a lawyer, parent, guardian or other appropriate person, who is not a police officer, is present.
• Confessions. Police should be aware of the prevalence of unreliable confessions from people with an intellectual disability. If a confession is made to any offence, there should be independent checking, attempts to obtain corroboration and evaluation of the basis of the confession to avoid injustice. Such confessions such also be subject to special scrutiny at trial level.
• Recording interviews. The interview should be recorded as the word, phrasing and the intonation used may be of greater importance than usual.
• Length of custody and interviews. A strict time period should be placed on the period of interrogation and detention in custody.
• Identification parades. These should not be used as people with an intellectual disability may be particularly obvious in such parades.³⁹

The Commission seeks comments and submissions as to the role of the police when dealing with people with an intellectual disability and as to the efficacy and practical application of the safeguards set out above. In particular, we need comments from the police as to the practicality, within their normal working constraints, of such safeguards.

FOOTNOTES

1. New South Wales. Anti-Discrimination Board Discrimination and Intellectual Handicap (1981) at 320.

2. S C Hayes and R Hayes Simply Criminal (Law Book Co, Sydney, 1984) at 33.

3. Hayes and Hayes (1984) at 32.

4. H G Weir “Early Social Intervention” Blinkers Off - Proceedings of the First National Conference of Australian Association for the Mentally Retarded Inc. and AGSSOMD (Canberra, August 1976) cited in New South Wales Anti-Discrimination Board Discrimination and Intellectual Handicap (1981) at 321.

5. New South Wales. Law Reform Commission Police Powers of Detention and Investigation After Arrest (Report 66, 1990) in particular, ch 6.

6. NSWLRC Report 66 at paras 5.47-5.52.

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

8. This list is adapted from the submission from Senior Constable P Fernandez, Wagga Wagga, dated 8 December 1991, at 3.

9. J Bright “Intellectual disability and the criminal justice system: new developments” (1989) 63 Law Institute Journal 933.

10. L M Osman Finding New Ways: A Review of Services to the Person with Intellectual Disabilities in the Victorian Criminal Justice System (Office of the Public Advocate, Victoria, 1988) at 17.

11. Ierace at 17.

12. Instruction 37.14.

13. Ierace at 17.

14. The Commission has already discussed the police caution and its effectiveness at greater length in NSWLRC Report 66 (1990), particularly paras 3.38-3.47.

15. Hayes and Hayes (1984) at 35-36. Since that study the caution was simplified, in January 1986, to: “You do not have to say anything unless you wish to do so, but what you say may be given in evidence”. See S E K Hewitt “Interviewing people at risk: following police Codes of Practice” (1985) 13 Mental Handicap 150 at 151.

16. Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 17.

17. Ierace at 18.

18. Bright at 933.

19. Instruction 37.16.

20. Ierace at 21.

21. Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 17.

22. Where bail is granted or is not an issue, it is usual for police to “charge” a person with a criminal offence rather than bring the person before a court for that purpose. Section 18 of the Bail Act 1978 (NSW) refers to the charging of a person by a police officer and s 353A of the Crimes Act 1900 (NSW) does this by implication. A strict reading of the common law and s 352 of the Crimes Act, however, suggests that the power to formally charge a person with a criminal offence lies only with a court. For further details as to charging procedure see NSWLRC 66, particularly paras 1.50, 3.7.4, and 4.41.

23. Osman at 19.

24. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 12.

25. Bail Act 1978 (NSW), s 18(1)(a).

26. Ierace at 29.

27. See the Bail Act 1978 (NSW), s 32(1).

28. Ierace at 29-30.

29. See Instruction 155, page 1.22-23.

30. Bright at 933.

31. Osman at 11.

32. Osman at 11.

33. Vincent J in R v Narula & ors, (1986) 22 ACR 409, quoted in J Goldhar “People with intellectual disabilities and the criminal justice system” (1989) 63 Law Institute Journal 856. The Anunga Rules were introduced in 1976 in the Northern Territory to provide guidelines to police interrogating Aborigines. Failure to follow these rules can result in the exclusion of statements taken from the evidence presented at the trial. The rules require the presence of a friend of the accused during police questioning and for the careful administration of the caution.

34. Report of the Royal Commission on Criminal Procedure (HMSO Cmnd 9021, London, 1981).

35. The Commission has discussed these Codes and their background in more detail in NSWLRC Report 66.

36. Para 1.7(b).

37. Annexure A, para 4.

38. Para 1.4.

39. L A Papeleo “The mentally retarded and the criminal justice system” (1985) 59 Law Institute Journal 947 at 948-9. Hayes and Hayes (1984) at 31 and 164.