Over-representation of People with Disabilities Coming Into Contact With The Criminal Justice As Offenders
By Melissa Ryan
11 August 2023
Imagine you’re a young person with a cognitive impairment, intellectual disability, psychosocial disability or ADHD, and you’ve just been arrested, but you don’t know what you did wrong or were powerless to prevent it from happening, how would you feel?
This is the scenario for a significant number of young people with disabilities who come into contact with the Criminal Justice System across Australia each year.
At the time of a person’s arrest, police may not be able to identify the person as having a disability, and the person may not disclose the fact that they have a disability to police for a variety of reasons. Unfortunately, when someone isn’t identified as having a disability, police may use heavy handed tactics during the person’s arrest.
Police are required to caution a person, both during their arrest and before they are formally interviewed. However, police are under no obligation to ensure that a person has understood this caution, at times, police may use long complicated words or phrases that some people with disabilities may not understand.[1] Given this scenario, there is a strong chance that some people with disabilities may be denied their human rights.
Even when a person’s disability has been identified by police, whether or not a support person is called to support the person during their police interview depends upon the interviewing officers. Furthermore, there are incidences where some people with disabilities are unaware of the fact that they have the right to request a lawyer’s presence, during their police interview.[2]
Although they are legally not authorised to do so, there are incidences when police decide to interview a person with a disability with neither a support person or a lawyer present. This is an erosion of the person’s rights and could ultimately lead to a serious miscarriage of justice. [3]
Because some people with disabilities may be eager to please police, there is a real danger that police may elicit forced confessions through coercion. This is why it is so imperative that a person with disability has the assistance of a support person and /or legal representative during their police interview.
Police who conduct interviews with people with disabilities, without the presence of a support person and/or legal representative, are contravening Article 13-Access to Justice) of the Convention Of The Rights Of People With Disabilities.:
People with disabilities come into contact with the criminal justice system for a multitude of reasons. These reasons can include homelessness, unemployment, complex mental health issues, violence, poverty and poor health.
First Nations’ people face particular disadvantages, when it comes to the criminal justice system. Research conducted by the Disability Royal Commission has indicated that First Nations’ People often experience multiple forms of discrimination due to the intersection of racism and ableism. First Nation People are substantially overrepresented within the criminal justice and while there is a lack of data on the exact numbers of First Nations people with a disability languishing within our prisons, it is estimated that First Nations people with disability are about 14 times more likely to be imprisoned than the general population.
There are organisations that can assist in the prevention of young people with disabilities becoming involved in the criminal justice system, or those that have just entered the system by:
- ensuring people with disabilities understand their legal rights, including their right to legal representation, when they are interviewed by police,
- acting as a communication intermediary between the person and the police,
- providing emotional support,
- assisting the person to understand and comply with violence protection/intervention
- orders and bail conditions,
- helping all stakeholders (e.g., people with disability who are alleged offenders or
- victims/witnesses, police, ambulance officers etc.) to understand the roles of different people within the context of their criminal justice contact, and
- being involved in the development of police training materials or in the formulation of policies and procedures as they relate to people with disabilities coming into contact with the Criminal Justice System.
Most people with disabilities come into contact with the Criminal Justice System for two reasons; circumstances that see them disadvantaged in some way, for example, poverty or homelessness, and/or a lack of social or disability support services. As well as improving police training, central to improving police responses to disadvantaged people with disability is recognition that what members of this group require is not a police or criminal justice response. It is rather, a trauma-informed, culturally safe, community-based and holistic social service response.
Article 13-Access to Justice) of the Convention Of The Rights Of People With Disabilities states:
- States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
- In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
Article 14 -Liberty And Security Of Person also ensures that people with disabilities have equal access to the law:
- States Parties shall ensure that persons with disabilities, on an equal basis with others:
- a) Enjoy the right to liberty and security of person;
- b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
- States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.
[1]Royal Commission Into Violence, Abuse, Neglect And Exploitation Of People With Disability, Research Report: Police Responses To People With Disability. Page 13.
[2]Royal Commission Into Violence, Abuse, Neglect and Exploitation Of People With Disability, Research Report: Police Responses To People With Disability, Page 92.
[3]Royal Commission Into Violence, Abuse, Neglect and Exploitation of People With Disability, Research Report: Police Responses To People With Disability, Page 84.