Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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Police interviews and investigations
3.62 If police believe the person has a cognitive impairment, they must arrange for an
independent third person to be present during the interview. 64 The Office of the Public
Advocate administers the independent third person program. The role of the independent
third person is to:
• facilitate communication between police and the person being interviewed
• provide emotional support to the person being interviewed, and
• ensure that the person understands their rights. 65
3.63 This is one way of ensuring fairness and that a person understands their right to silence
during a police interview. This is particularly important given the probability that:
a large proportion of people with an intellectual disability or cognitive impairment who
come before police will not understand the caution and the consequences of failing to
exercise their right to silence. 66
3.64 Cognitive behavioural problems commonly associated with acquired brain injury (ABI) can
also impact on a person’s ability to interact with the police, lawyers and the courts:
Difficulties with memory are very common after a brain injury. During [a] police interview,
a person with ABI may not be able to recall certain events, and may feel pressure to
answer questions, despite having no effective recollection of the events. Some individuals
will succumb under interrogation and offer information that is not based in fact, or admit
to a crime they did not commit. Many people with [acquired brain injury] have difficulties
with language and communication, and they may not be able to effectively express
themselves, comprehend what is said to them or read written material. As a result, they
need skilled communication support when being interviewed by Police. 67
3.65 Intellectual disabilities and cognitive impairments require a different response from police
to mental illness as these mental conditions each have different causes, effects and
expressions. 68 While some studies show improvements in the way in which police manage
people with mental illness, intellectual disability and cognitive impairments, others
indicate further improvements are required.
3.66 A study exploring perspectives on police identification of and responses to people with an
intellectual disability in Victoria suggested that:
[P]olice are generally better at identifying and responding to ID [intellectual disability] than
earlier literature has suggested. Overall, interactions at this interface were considered to
be very positive, but further training needs were identified particularly with respect to
providing the emotional support needs of interviewees. 69
3.67 The Law Reform Committee report, however, recommended options for improving the
identification of people with an intellectual or cognitive impairment by the police. These
recommendations were in response to the finding that:
[T]he amount of time it takes for police investigations to be conducted may adversely affect
the ability of a person with an intellectual disability or cognitive impairment to recall events. 70
3.68 The Law Reform Committee recommended more detailed guidance for police on how to
improve communication with people with an intellectual disability or cognitive impairment. It
was recommended that Victoria Police develop separate sections in the Victoria Police Manual
for ‘guidance on mental illness, intellectual disability and cognitive impairment respectively’. 71
64 Ibid.
65 Office of Public Advocate, Independent Third Persons (15 October 2012) .
66 Law Reform Committee, above n 23, 138.
67 Brown and Kelly, above n 36, 17.
68 Law Reform Committee, above n 23, 114.
69 B Spivak and D M Thomas, ‘Police Contact with People with an Intellectual Disability’ [2012] Journal of Intellectual Disability Research (forthcoming).
70 Law Reform Committee, above n 23, 135.
71 Ibid 114.
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