Cultures worth celebrating are underpinned by universal values that help define a civilised society. Such values include humane treatment of the vulnerable, such as people with intellectual disabilities who are over-represented in criminal justice systems globally.
The July 2021 Report of the Garda Síochána Inspectorate notes that, from a sample of 318 custody records, “24 per cent showed that the person was suffering from poor mental health or had engaged in self-harm, while 5 per cent identified a learning disability”. A 2018 Dutch study of 178 police suspects found that 28 per cent of suspects had an IQ below 70, and 84 per cent had an IQ below 85.
In 2021, a team led by consultant forensic psychiatrist Prof Gautam Gulati – adjunct professor at the University of Limerick – reported the views of voluntary organisations, healthcare professionals, and professionals from the criminal justice system, all of whom worked with people with intellectual disabilities. The study identified a need to provide information to people with intellectual disabilities – who have law enforcement interactions – in an appropriate format: “This is an important consideration,” the study says, “in the context of Article 9 of the United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD), which concerns accessibility of facilities and services for people with disabilities”.
However, “less than 5 per cent of signatories to the UNCRPD report progress in developing information materials accessible for people with learning disabilities at the criminal justice interface”.
If a person does not understand their rights, does not know how to exercise these rights, or know when they are being breached, then arguably this is a barrier to accessing justice on an equal basis with others
But following a collaboration between the University of Limerick, University College Cork, Trinity College Dublin, An Garda Síochána and Inclusion Ireland, including feedback from people with intellectual disabilities, Prof Gulati and colleagues describe an innovation that strengthens procedural rights of people with intellectual disabilities in Ireland.
Published in the International Journal of Law and Psychiatry, and presented as an example of good practice at a European Union Access to Justice meeting in Vienna earlier this year, the innovation is an accessible easy-to-read Notice of Rights (ERNR) for people with intellectual disabilities in police custody in Ireland. It is “the first attempt at developing an easy-to-read document relating to the legal rights of suspects in police custody in Ireland and, accordingly, this procedural innovation promises to assist, not just people with intellectual disabilities, but also those with limited literacy at the point of arrest”.
The ERNR – Form C.72(S) – is issued to individuals in police custody by An Garda Síochána. When the study began, although copies of Form C.72(S) were available to suspects in different languages, an easy-to-read version of the notice had not been drafted, making it incompatible with An Garda Síochána’s commitment to rights-based policing and Ireland’s human rights obligations under domestic and international law. The agreed changes resulting in the ERNR include the use of photo symbols and accessible language, including first-person language like, “I will visit you often or very regularly to make sure you are okay” and affirmatives like: “For some offences, the law says that a Garda can test if you have been near a gun or bomb. The law says you can agree to this.”
Lead author Prof Gulati says that the innovation was the culmination of two years’ work. “Conducting online research meetings and focus groups during the pandemic was challenging, and we thank both Inclusion Ireland and people with intellectual disabilities from St Joseph’s Foundation, Charleville, who contributed to this project,” Prof Gulati says.
“They provided critically important insights into inclusion and accessibility. The right to accessible information in the Criminal Justice System is an important right under section 28 of the Disability Act 2005 and equally Article 9 of the UNCRPD”.
The ERNR has been formally submitted to An Garda Síochána for their consideration. However, Prof Gulati considers their work as a starting point. “As highlighted by participants with lived experience, we need to work on an audiovisual version of the ERNR. Similar work is also needed for victims and witnesses with disabilities who encounter the criminal justice system.”
We hope that this work will inspire similar developments in other jurisdictions that have ratified the UNCRPD— Prof Gautam Gulati
Sarah O’Malley, criminal justice policy officer at the Irish Council for Civil Liberties (ICCL), says that while welcoming the ERNR, “ICCL is concerned that the draft Garda Síochána (Powers) Bill 2021 in its current form fails to codify key aspects of this vital right. It needs to be amended to include, among others, the right to silence and, crucially, the duty of a custody officer to provide accessible information to persons with disabilities.”
Prof Gulati explains that: “If a person does not understand their rights, does not know how to exercise these rights, or know when they are being breached, then arguably this is a barrier to accessing justice on an equal basis with others”.
Ms O’Malley says the right to information is the gateway right in custody. “It is the right that provides suspects with information about all the rights owed to them from access to a lawyer, legal aid, interpretation and translation, and the right to silence,” she says.
“When a suspect’s right to information is breached, it has a knock-on effect on every other right in Garda custody, and suspects may lose out on key procedural safeguards such as having a solicitor present during questioning”.
Prof Gulati and colleagues are optimistic that their work represents progress for Ireland in meeting its obligations to people with disabilities, and to the UN under International conventions: “We hope,” he says, “that this work will inspire similar developments in other jurisdictions that have ratified the UNCRPD”.