OVERVIEW

1.1 This Issues Paper is concerned with people with an intellectual disability and the criminal justice system. People with an intellectual disability have low intellectual ability and deficiencies in social and adaptive functioning.

The intellectual disability usually manifests during the person’s developmental period (that is, before adulthood). Accordingly it is often referred to as a “developmental” disability. In the great majority of cases it is not capable of being overcome by any medical, psychological or psychiatric treatment. It is therefore a permanent condition.

From this reduced intellectual capacity flows certain behavioural distinctions. A person with an intellectual disability may have difficulty in grasping abstract concepts, handling complex tasks, and absorbing and assessing information at a "normal" rate.¹

There are many forms and degrees of intellectual disability; a person with a severe disability may be unable to learn basic social skills such as speech, walking and personal care and is likely to reside in an institution. The majority of people with an intellectual disability, however, have only a mild disability and “are usually capable of learning to overcome the restrictions of their disability so that they can function in the broader community, especially if they are supported in this regard by specialised educational and other services.”² Government and other support for “independent living” programs rather than institutionalisation means that people with an intellectual disability are becoming a more visible and active part of the community.

1.2 Approximately 2-3% of the New South Wales population has an intellectual disability.³ The accuracy of this estimate is affected by the difficulty in obtaining statistics in this area. Many people with a mild intellectual disability do not use the services from which most statistics derive and therefore are not identified.⁴ Recent studies, however, indicate that people with an intellectual disability are over-represented within the criminal justice system, both as offenders and as victims. For example, one study suggested they comprise 12-13% of the New South Wales prison population.⁵ It also has been suggested that offenders with an intellectual disability serve longer sentences than other offenders for similar crimes, and that they have a higher rate of recidivism.⁶ People with an intellectual disability are said to be:

more likely to be arrested, refused bail, convicted, sentenced to imprisonment, receive a longer term of imprisonment and serve a greater percentage of their sentence before being released on parole.⁷

The problem is compounded by the misunderstanding of intellectual disability prevalent in the community and the failure of the courts, police and lawyers to recognise the existence of the person’s disability or the special problems of people with an intellectual disability.

1.3 Recent studies have also pointed to the vulnerability of people with an intellectual disability as victims of crime. The 1988 Silent Victims Report⁸ suggested that victims with intellectual disabilities did not report crimes against themselves for a variety of reasons, including their lack of understanding that a crime had been committed against them and ignorance of where to go to seek help. The Report also commented on the small number of cases which actually reach the courts, and the difficulties experienced by people with an intellectual disability in understanding the formalities and processes of the courts. Most recently a Report issued by the NSW Sexual Assault Committee in 1990⁹ found that people with an intellectual disability report a higher than average proportion of sexual assault cases which, considering the low crime reporting rate referred to in the Silent Victims Report, suggests the actual number of sexual assault cases may be much higher.

1.4 It was within this context that the former Attorney General, the Hon J R A Dowd QC MP, requested that a Committee be convened to conduct a preliminary review of the operation of the criminal justice system as it affects people with an intellectual disability. The Committee contained representatives from a number of agencies, including the Department of Corrective Services, the Criminal Law Review Division of the Attorney General's Department, the Mental Health Review Tribunal, the Guardianship Board, the Office of the Director of Public Prosecutions, the Magistrature, the Public Defenders’ Office and from (what is now known as) the Department of Community Services. The New South Wales Law Reform Commission did not participate in this review. The Committee’s two meetings revealed the need for a more comprehensive review of the area,¹⁰ and the New South Wales Law Reform Commission was given this responsibility.

THE COMMISSION’S REFERENCE

The terms of reference

1.5 As recommended by the Attorney General’s Committee, on 30 September 1991 the Commission received the following reference from the Attorney General, the Hon P E J Collins QC MP, pursuant to s 10 of the Law Reform Commission Act 1967 (NSW), for report by 30 November 1992.

To inquire into and review the law and practice relating to the treatment of the intellectually disabled in the criminal justice system and matters incidental thereto; and in particular, without affecting the generality of the foregoing, to consider -

(a) whether there should be a new uniform statutory definition of “intellectual disability”;

(b) whether, and to what extent, the intellectually disabled should be diverted from the criminal justice system, including consideration of the custodial and non-custodial alternatives to the sentencing and detention of the intellectually disabled;

(c) the treatment of intellectually disabled persons in police custody and in prison;

(d) the release from custody into the community of intellectually disabled persons considered dangerous;

(e) whether specialist units should be established within the Office of the Director of Public Prosecutions, the Legal Aid Commission, the [Department of] Corrective Services, the Police Service and other related bodies, to deal with the intellectually disabled; and

(f) in so far as the law and practice relating to the treatment of the intellectually disabled is relevant to the treatment of the mentally ill in the criminal justice system, whether any recommendations should also be made in relation to the mentally ill.

The conduct of the reference to date

1.6 Owing to the breadth of the reference and the number of interest groups and people it would wish to consult, the Commission decided that it should seek a preliminary response to the terms of the reference and release an Issues Paper before preparing a Discussion Paper and formulating specific proposals. The terms of reference have been distributed to people and organisations in New South Wales and elsewhere in Australia, and a number of overseas law reform agencies have been contacted. The Commission has incorporated the comments made in preliminary meetings, interviews, written submissions and telephone calls in this Issues Paper.

The scope of the reference

1.7 The scope of this reference is potentially extremely broad. To review the law and practice relating to the treatment, in a general rather than a medical sense, of people with an intellectual disability in the criminal justice system requires an analysis of each stage of the process as it affects an individual, namely:

• the commission of a “crime”;
• contact with the police (whether as a suspect, victim or witness), including arrest, detention, interrogation and detention, and the decision to charge with a crime or divert from the system;
• preparation for and appearances at court (whether as accused or witness), including issues of fitness to plead, competence to give evidence, and ability to instruct legal counsel;
• the application of certain defences, such as diminished responsibility, provocation and mental illness, to people with an intellectual disability;
• sentencing principles and options, including non-custodial alternatives; and
• prison conditions, release and post-release programs.

Juveniles

1.8 Within these stages it may be necessary to make distinctions between the position of adults and juveniles, though many issues will apply equally to both groups. There have been a number of recent reports on the juvenile justice system.¹¹ The Commission is also aware that a Juvenile Justice Advisory Council has been recently established, including a Working Party on Legislation, Courts and Legal Services, and that the New South Wales Parliament’s Standing Committee on Social Issues is in the final stages of preparing its report, The Inquiry into the Juvenile Justice System in New South Wales. It may therefore be appropriate that issues exclusively affecting juveniles with an intellectual disability be addressed by those bodies.

The Commission welcomes submissions about whether it should consider any particular aspects of the criminal justice system in relation to juveniles.

1.9 The large number of Aborigines within the criminal justice system, compared to their proportion of the general population, has often been commented upon. A recent study suggested that there also appears to be an over-representation of Aboriginal prisoners with an intellectual disability in New South Wales prisons.¹² There were, however, a number of factors in this particular study which may have affected this finding, such as the inclusion of Broken Hill Gaol, which has a high Aboriginal population, and the possible cultural bias in the screening tests. It has been suggested that further research is necessary in this area. It also has been suggested that the paucity of resources in remote areas may adversely affect Aborigines with an intellectual disability.

The Commission seeks further information as to whether there are particular needs of Aborigines with an intellectual disability which need to be met in the New South Wales criminal justice system.

Normalisation

1.10 Any discussion of intellectual disability should have regard to the principle of normalisation, which aims to make available to people with an intellectual disability “patterns and conditions of everyday life which are as close as possible to the norms and patterns of the mainstream of society”.¹³ This principle, many believe, should also apply to the person with an intellectual disability in the criminal justice system. The Commission has used normalisation as a guiding principle throughout this Issues Paper, while recognising the particular vulnerability of people with an intellectual disability and the need, in some cases, for protective measures.

THE PURPOSE OF THIS PAPER

1.11 The purpose of this Issues Paper is not to make specific recommendations for reform, but rather to identify issues which the Commission believes are important, as a result of its initial research and submissions, and to seek further information. This Paper does not contain an exhaustive list of all relevant issues, but is meant to be a tool for further discussion. Throughout the Paper, the Commission has indicated areas where further information is sought and has listed, at the end of each Chapter, some questions for discussion. The Commission invites submissions and comments as to other issues or proposals for reform. The Commission will then release a more detailed and wide ranging Discussion Paper, incorporating the comments made, with a list of proposals for reform. After a further process of consultation and submissions the Commission will prepare its final Report to the Attorney General, annexing, if appropriate, draft legislation.

HOW TO MAKE A SUBMISSION OR COMMENT

1.12 If you would like to make a submission or comment about people with an intellectual disability and the criminal justice system, the Commission would be very glad to hear from you. You can choose to comment on only one part of the Paper; it is not necessary to respond to all of the issues raised. Anyone may make a submission or comment, including people with an intellectual disability, relatives or service providers, participants in the criminal justice system, such as police or lawyers, or members of the public. You can do so in any of the following ways:

• Make a written submission by writing to:
  
  Mr Peter Hennessy
  Executive Director
  NSW Law Reform Commission
  GPO Box 5199
  SYDNEY NSW 2001.

• Telephone the Commission on (02) 252 3855 and ask to speak to a Legal Officer to make your comments by telephone.

• Telephone or write to the Commission to arrange to make a submission in person.

If you need an interpreter or have some other difficulty of communication or transport, please arrange for someone to telephone the Commission and we will attempt to make some suitable arrangements.

What should a submission contain?

1.13 There is no special form or restriction on what can be said in a submission: we are interested to hear any comments, from any source, about the position of people with an intellectual disability and their interaction with any part of the criminal justice system, whether as offenders, victims or witnesses. Areas of particular concern are: definitions of intellectual disability, the role of the police and lawyers, the courts, and sentencing alternatives for people with an intellectual disability. The remainder of this Issues Paper deals with these areas of concern in more detail, and indicates the type of information the Commission is seeking. You are not limited, however, to the issues raised in this Paper.

Confidentiality

1.14 If you would like your submission or comments to be treated as confidential, please indicate this on your submission or comments. Requests for confidentiality will be strictly respected.

FOOTNOTES

1. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 1.

2. Ierace (1989) at 1-2.

3. See for example S C Hayes and R Hayes Simply Criminal (Law Book Co, Sydney, 1984) at 13 and the Report of the Inter-Departmental Committee on Intellectually Handicapped Adult Offenders in New South Wales The Missing Services (Sydney, 1985) at 25. An estimate of 175,000 people was provided by M Ierace “Acting for the intellectually disabled offender” (1987) 25 Law Society Journal (4) at 42, which, on the 1986 Census figure of 5,401,881 persons in New South Wales, would be approximately 3.2%. However, the most recent publication by the Australian Bureau of Statistics, Disability and Handicap, Australia 1988 (1990), Table 9 at 14, stated that 155,400 persons, that is, approximately only 1% of the Australian population, had the condition of “mental retardation, mental degeneration due to brain damage, slow[ness] at learning and specific delays in development”.

4. Hayes and Hayes (1984) at 13.

5. S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (November 1988) at 47. This study assessed the prevalence of intellectual disability in five NSW prisons: Mulawa Training and Detention Centre for Women, Central Industrial Prison, Parramatta Gaol, Metropolitan Remand Centre and Broken Hill Gaol. The five gaols held a population of 1,318 prisoners of which 675 were screened.

6. Ierace (1987) at 43.

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

8. K Johnson, R Andrew and V Topp Silent Victims: A Study of the Difficulties Encountered by Victims of Crime who are Intellectually Disabled (Office of the Public Advocate, Victoria, 1988).

9. NSW Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990).

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

11. New South Wales. Department of Family and Community Services Report from the Working Party on Services to Young Persons with Intellectual Disabilities in the Juvenile Justice System (1988); Youth Justice Coalition (NSW) Kids in Justice: a blueprint for the 90s (1990).

12. Hayes and McIlwain at 39-43.

13. S C Hayes and R Hayes Mental Retardation: Law, Policy and Administration (Law Book Co, Sydney, 1982) at 5.