From the moment a person with a mental illness or intellectual disability is first interviewed by police, specific procedures, laws and human rights obligations apply. The defence of mental impairment should always be considered, but important legal factors must be considered. Assistance for going to court should be planned ahead, and consideration of criminal justice diversion programs, and the specialist Assessment and Referral Court that can provide psychological assessment and referral to welfare, health, mental health, disability, housing services, and/or to drug and alcohol treatment. More sentencing options are available and supervision and leave orders for forensic patients.

Contributor

Liam McAuliffe

Barrister

People with disability and the police

Last updated

1 June 2021

Introduction

This section discusses police processes in relation to people with a disability. Misconceptions about people with a disability are common and may reflect negatively on potential witnesses, complainants or defendants who have a disability. With additional support (e.g. the independent third person; see below) people with an intellectual disability or psychiatric illness can be as reliable in giving evidence as anyone else.

If a person with a disability is not treated equally and fairly, they should consider making a complaint against the police (see Chapter 12.6: Complaints against Victoria Police). It is strongly recommended that you seek legal advice before taking any action against the police (see Chapter 2.4: Legal services that can help).

Arresting people with a mental illness

For helpful information about the powers of police officers to apprehend people with a mental illness, see Chapter 8.4: Mental illness.

Interviewing people with a disability

People with a disability must be treated fairly when being interviewed by police officers. For example, police must ensure that a person with a disability understands the caution given to them. Also, access to medical care must be given to the person being questioned if required. If these or other rights are not adhered to by police, such behaviour may be a breach of the Charter.

For a general discussion about what rights you have during police interviews, see Chapter 3.5: Arrest, search, interrogation and your rights.

Independent third person

A suspect, victim or witness with a cognitive impairment (including an intellectual disability, acquired brain injury, dementia, autism spectrum disorder or mental illness) is entitled to have an independent third person (ITP) present during a police interview. ITPs are volunteers who support people with a cognitive disability or mental illness during police interviews and also assist them in communicating with police officers and giving formal statements. The Office of the Public Advocate trains and supports these volunteers. Police officers may also request an ITP to be present in an interview (the police have access to a list of ITPs at all times). Although it is preferable to have an independent person, it is permissible for a family member or a friend to act as the ITP provided they are 18 years or over.

An ITP assists the person to understand their rights and the questions asked by police. They clarify misunderstandings that may arise due to the person’s disability. An ITP must be independent of all parties and objective in all their actions.

An ITP is not a legal advocate. An ITP does not make decisions for the person about how they should deal with the legal issues they are facing and cannot give any legal advice. Conversations with an ITP are not covered by confidentiality and can be used against the person in court.

If an ITP was not made available to a person with a disability when they were interviewed, the court should be informed. A defendant may submit to the court that because they were not given an ITP when they were questioned by police, they were unable to understand the caution and the interview process and therefore unable to effectively answer the questions appropriately. In this occurrence, the evidence from the police interview may have been improperly obtained, which constitutes a breach of the person’s rights under the United Nations International Covenant on Civil and Political Rights (1966) (see s 138 Evidence Act 2008 (Vic)) and the relevant Charter rights.

Where an interview occurred without the presence of an ITP, a magistrate or judge can decide whether or not to admit the information obtained from the interview.

(For more information about the ITP program and the Office of the Public Advocate, see Chapter 8.2: Disability: Asserting your rights.)

Access to a lawyer

Under section 25(2) of the Charter, a person charged with a criminal offence has the right to have adequate time and facilities to communicate with a chosen lawyer or advisor. This applies to both summary and indictable offences. It is important that an ITP ensures that a person with a disability who is being interviewed understands what is taking place, understands the caution (given for all offences) and understands their right to speak to or consult a legal advocate.

An alleged offender and an ITP must always be advised of the right to communicate with a lawyer, separate from the standard reading of rights. This is to ensure that the alleged offender’s entitlement to consult with a lawyer/legal advocate is fully understood.

Legal advice can be sought from Victoria Legal Aid or a community legal centre (see Chapter 2.4: Legal services that can help).

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