About legal issues and help available to people with intellectual in police custody

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Rights in police custody

Rights of people with intellectual disability in police custody

picture of man in police cell

Police are required to follow certain procedures when a person they have detained has an intellectual disability, so it is in the person's interests to tell the police they have an intellectual disability, or for someone to do so on their behalf.

These procedures are contained in the:

  • Criminal Procedure Act 1986 (NSW)
  • NSW Police Code of Practice for Custody, Rights, Investigation, Management and Evidence (CRIME)
  • Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
  • Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW)

Accourding to the above Acts, Procedures and Code of Practice:

  • a person with intellectual disability is a "vulnerable person"
  • steps are required to be taken taken to get a support person for the person with intellectual disability and other adjustments made to the interview and custody process
  • requires police to modify the way they conduct investigations, questioning and interviews (including allowing a support person to be present) where they are aware that the person being investigated has an intellectual disability
  • custody manager involved must inform the support person that they can assist the person with intellectual disability and ensure that the interview is conducted properly and fairly, and that they should identify any communication problems that arise
  • ensure that the detained person understands the warning the police give about the right to remain silent. This warning is sometimes referred to as the caution. This might require the Custody Manager to repeat the caution, explaining it in different terms or asking the support person to help explain it

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Rights if the police wants to carry out a forensic procedure

Under the Crimes (Forensic Procedures) Act 2000 (NSW) police have wide powers to obtain forensic samples from suspects and prisoners. Samples include saliva from mouth swabs, fingerprints, hair strands and photographs of parts of a person's body.

Any forensic procedure can be carried out with the informed consent of a person. However, the legislation says that children and 'mentally incapable' people cannot give their consent. If police want to take a forensic sample from a person with intellectual disability the prudent course is to seek an order of the Court to do so as it may be that they are not able to give an informed consent.

Man showing a finger with ink to get finger print
    Forensic procedures are divided into two categories:
  • 'Non-intimate' forensic procedures:

    • examining, photographing, taking a swab or sample or cast or impression or measurement of part of the body other than the genitals, buttocks, or (in the case of a female or transgender person who identifies as a female) the breasts
    • taking a sample of hair other than pubic hair
    • taking a sample of or from under a nail
    • taking a hand print, fingerprint, foot print, or toe print
      A senior police officer (of the rank of sergeant or above) can order the making of a non-intimate forensic procedure on a person if the senior police officer is satisfied that:
    • the person is a suspect and is under arrest
    • the suspect is not a child or a 'mentally incapable' person
    • there are reasonable grounds to believe that the suspect committed an indictable
    • there are reasonable grounds for believing that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence
    • the carrying out of the forensic procedure without consent is justified in all the circumstances
  • picture of obtaining a mouth swab from a man
  • 'Intimate' forensic procedures:

    • examining, photographing, taking a swab or sample from the genitals, buttocks or (in the case of a female or transgender person who identifies as a female) breasts
    • taking a sample of blood, taking of a sample of saliva other than by a mouth swab
    • taking a sample of pubic hair
    • taking a dental impression
      Intimate forensic procedures can only be carried by order of a Magistrate or other authorised justice, after a hearing at which the person must normally be present. Before making such an order, the Magistrate must be satisfied of the following:
    • that the person is a suspect (defined as meaning someone who has been arrested or charged with the offence, or whom the police reasonably suspect of having committed the offence);
    • that there were reasonable grounds to believe that the suspect had committed a prescribed (i.e. indictable) offence or a related offence
    • that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the suspect had committed the offence of which he or she was suspected
    • that the carrying out of the forensic procedure was justified in all the circumstances

When carrying out a forensic procedure:

  • must be in circumstances affording reasonable privacy to the person undergoing the procedure
  • must be carried out in accordance with appropriate medical standards
  • may only be carried out by an authorised person. The Crimes (Forensic Procedures) Act 2000 (NSW) contains a list of all forensic procedures and the persons authorised to carry out those procedures. These are generally medical practitioners, nurses, dentists, and in some circumstances, police officers
  • If practicable, an intimate forensic procedure (other than the taking of a dental impression or an x-ray) is to be carried out by a person of the same sex as the person undergoing the procedure
  • on suspects or charged persons under 15 years of age must be carried out in the presence of a parent, or if both parents are unavailable, an independent witness over 18 years of age who is not a police officer and is not the suspect or charged person's parent
  • Police officers may be present during the carrying out of forensic procedures for the purposes of safety, security, continuity of evidence, investigation and the effective carrying out of the procedure

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Where to get support?

IDRS can provide legal advice and help to organise support for people with intellectual disability in police custody.

For more information- 02 9318 0144 during office hours.

If you need urgent help at a police station, please call- 1300 665 908.This service operates from 9:00am - 10:00pm, 7 days a week in NSW.

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