Policy Submission: Select Committee on Disability Access and Interaction with the Justice System

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This submission is in response to a request for evidence by the South Australia Parliament Select Committee on Disability Access to and Interaction with the Criminal Justice System in South Australia. Its purpose is to provide evidence regarding the experience and perspectives of people living with disability, and their family, carers and support networks in accessing and interacting with the South Australian Criminal justice system.

Recommendations

Recommendation 1

That professionals working in the criminal justice system access professional development to build their capacity to understand the implications of intellectual disability/cognitive impairment and/or communication disorders for understanding and communicating during legal processes.

Recommendation 2

That identification of a person living with disability triggers consideration of, and early referral where appropriate to, a magistrate court diversionary program or appropriate community-based options.

Recommendation 3

That all police officers are provided with training to enable them to understand the implications of living with an intellectual disability/cognitive impairment and the implications of a communication disorder, and what this means for officer practice during the judicial process.

Recommendation 4

That all relevant police procedures be reviewed and modified to ensure that alleged offenders living with disability receive the appropriate support to enable them to understand what is being asked or said and the significance of actions such as signing a record of interview or surrendering the right to silence.

Recommendation 5

That core procedures within the justice system be refined so there is attention to the possible need for a support worker (or significant, trusted other) familiar to the person to be in attendance at all key stages of the person’s connection with the criminal justice system.

Recommendation 6

That police be provided with training about the nature of intellectual disability/cognitive impairment, and communication disorders, their support needs and how to access them, and the implications for interactions with the justice system.

Recommendation 7

That people living with intellectual disability/cognitive impairment or related circumstances are not questioned by police without a familiar and trusted person being present.

Recommendation 8

That provision be made at the commencement of a jury trial for the jury to receive an awareness briefing and associated reference materials on the considerations relating to a person living with impaired capacity to understand the judicial process and /or give testimony.

Recommendation 9

That judges, magistrates, barristers and lawyers be provided with adequate training in engaging in court with people living with intellectual disability/cognitive impairment or related circumstances. This should have an emphasis on assessing and identifying appropriate support to enable the person to fairly engage with the justice system in a manner which upholds their rights.

Recommendation 10

That people living with intellectual disability/cognitive impairment or related circumstances are supported by a familiar person or trusted other at all stages of the court process.

Recommendation 11

That the justice system makes available a Supported Decision-Making methodology such as that currently being trialled at the Office of the Public Advocate. This will assist people living with disability to make decisions and provide testimony throughout the judicial process.

Recommendation 12

That magistrates be provided with training so that they are aware of the nature and effects of disability (including its psychological and socioeconomic dimensions), any relationship between lack of support services and offending behaviour, and the appropriateness and impact of diversion and sentencing options for offenders living with disability.

Recommendation 13

Development of procedures to ensure Magistrates have available to them adequate time and expert input for cases involving persons living with a degree of disability that has a material impact on their understanding of, and participation in, judicial proceedings.

Recommendation 14

The urgent review of any current South Australian legislation to remove/replace content that may be contributing to a view that people living with certain types of disability are deemed unreliable witnesses simply because of the naming of that disability. Any legislation so revised needs to acknowledge that any person living with disability has the potential, with appropriate support where necessary, to give authentic testimony.

Recommendation 15

That the court explore and develop procedural options for appropriately supporting people living with intellectual disability/cognitive impairment and/or related circumstances so they can give authentic and reliable testimony. This may include the participation in court of a trusted significant other in the person’s life who can contribute to the court’s understanding of the person’s testimony; accessing such supports could be included as routine court procedure when dealing with people living with these disabilities.