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A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person accused of a crime, or merely as a witness. While the former are the two main areas of concern, some of the same problems may occur in all cases. For example, does the particular person with a disability have the legal capacity to give evidence?

As a Victim of Crime

According to the law, a person with an intellectual disability who is the victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. There are some understandable reasons for this, for example even where a person with an intellectual disability does manage to contact the police, or someone else does so on their behalf, the police may decide not to prosecute because they feel that the person with a disability will not be a reliable witness.

A person can give evidence in court as long as they generally understand that they have promised to tell the truth (and what that means) and that telling a lie is against the law. Even if the person is permitted to give evidence, the judge or jury may not see that evidence as being as important as other evidence because they believe the person's understanding is insufficient.

Accused of a Crime

Intellectually disabled people accused of committing crimes are particularly vulnerable, because their special needs are often not met, and because the legal system tends to discriminate against the less articulate. Most criminal offences require an intention to do an unlawful act, or recklessness as to whether or not it was done. Some intellectually disabled people may be so disabled as to be incapable of forming an intention to commit a crime.

The defence most commonly thought of in relation to intellectually disabled people is insanity. Insanity is a complete defence in respect of crime involving a mental element. Someone who is found not guilty in this way may be detained ‘at the Governor's pleasure’ in a gaol or institution. They are released when the Governor chooses and often serve longer 'sentences' than people who are convicted and sentenced to gaol for the offence.

The first contact an accused is likely to have with the criminal justice system is with the police. Depending on police attitudes to the accused and their awareness of the person's disability, the police may exercise their discretion and with minor offences give a warning rather than charge someone.

Police in Tasmania receive only limited training in regard to 'mentally disturbed' people and most of this is with reference to the Mental Health Act and mentally ill people, not with intellectually disabled people. Thus it is particularly important for intellectually disabled people to be accompanied and assisted when being questioned by police officers.

There are guidelines in the Police Commissioner's Instructions to Police which, while they are not legally enforceable, police should follow. One of these is that any person who is suspected of being of ‘feeble understanding’ should, if reasonably practicable, be questioned by police in the presence of a friend, parent, guardian or other responsible person not associated with the enquiry. Another states that such ‘special measures as are practicable and appropriate’ should be taken to ensure a fair interrogation. Where there is any doubt about the fairness of an interrogation of a person with a disability or the voluntariness of a confession, an application should be made to the Court to exclude such evidence. Confessions made to police by intellectually disabled people are particularly unreliable often because of the person with a disability’s desire to please.

Fitness to Plead and to Stand Trial

Every accused person is asked to plead guilty or not guilty. Silence is assumed to be a statement of not guilty. The court must be satisfied that an accused person is fit to plead, that is, that they understand the act of which they have been accused and can indicate a response. A person who is held unfit to plead may still be detained in custody (in gaol or a mental hospital) by the Minister, the Governor or by the Court.

In theory, fitness to stand trial is different to fitness to plead, and involves the accused person being able to comprehend what is going on generally in court. They must be able to understand the significance of telling the truth to the court, the nature of the charge and be able to instruct their solicitor. Again, someone considered unfit to stand trial can be remanded in custody.

Alternatives to Imprisonment

It is important to realise that even when a person with an intellectual disability has been convicted of a serious offence, there are alternatives to imprisonment. A solicitor who is aware of the person's disability should attempt to establish the person's ability and willingness to comply with any conditions which might be imposed if they are placed, for example, on a good behaviour bond. Awareness of the resources and support services available in the community is very important here.

While it is hoped that court officials will acquaint themselves with this information, it is ultimately up to the solicitor, citizen advocate, or any other friend to acquaint the magistrate or judge with what support is available for the particular offender. Failure to arrange ongoing assistance and support, and even supervision, will almost inevitably result in the person's reappearance one day in the criminal legal system.

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