Guide to assessing capacity and taking instructions from very young and/or intellectually disabled clients in the Criminal Division of the Children’s Court

April 2013

©2013 Victoria Legal Aid.Reproduction without express written permission is prohibited. Written requests should be directed to Victoria Legal Aid, Research and Communications, 350 Queen Street, Melbourne Vic3000.

Disclaimer.The material in this publication is intended as a general guide onlyhas been prepared for Victoria Legal Aid staff and community legal centre staff and volunteers for study purposes only. The information contained should not be relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken in reliance on the contents of the publication.

Contents

1. Introduction......

Capacity in the Criminal Division......

Take your time......

Overview......

2. At the beginning......

Who you are......

Your role......

Confidentiality......

Tools for assessment and instruction taking......

Discuss the players in the court process......

Avoid leading questions......

3. Assessing capacity to instruct and gauging general comprehension levels......

Why are they going to court?......

Please tell me why the police are taking you to court (just what they are saying – not your version at the moment)

Guilty or not guilty?......

Fitness to plead, doli incapax and mental impairment......

Fitness to plead......

doli incapax

Mental impairment......

Sentencing......

Summarise instructions......

Talking to parent/carer/social worker......

4. Concluding the interview......

Application for Aid......

Any questions......

Make sure they understand how to get in touch with you......

5. Conclusion......

Children’s Court Criminal Division Checklist 1......

Assessing capacity to give instructions......

Victoria Legal Aid - Guide to assessing capacity and taking instructions from very young and/or intellectually disabled clients in the Criminal Division of the Children’s Court – April 2013

- 1 -

1. Introduction

The first thing that all lawyers who represent children in Children’s Court proceedings in either the Criminal Division or the Family Division should do is read the Guidelines for lawyers acting for Children and Young People in the Children’s Court (first edition 1999, draft second edition 2012).

This guide goes beyond those Guidelines and covers the basics of how to assess capacity and take instructions from very young children (under 14), and children with learning or intellectual disabilities, in the context of facing charges in the Criminal Division of the Children’s Court of Victoria.

It is not intended to be a definitive analysis of the law relating to fitness to plead, doli incapax or mental impairment.

Capacity in the Criminal Division

It is important to recognise that the issue of children’s capacity to give instructions in the Criminal Division – which can include issues of fitness to plead, doli incapax and mental impairment - is very different to the capacity assessment process in the Family Division of the Children’s Court.

In relation to fitness to plead the key issues are:

  • can the accused understand and follow the proceedings in a way that ensures an ability to mount a defence?
  • can the accused understand the evidence?
  • can the accused give proper instructions to the lawyer?

In contrast, children in the Family Division of the Children’s Courtdo not need to be able to completely understand and follow the proceedings; all that is required is that the child understands the general role of the court and the reason for the proceedings.

Since a child is required to understand less of the technicalities in a Family Division matter, rather than in a criminal case, correspondingly less is required of them in terms of their instructions to their representative also.

Essentially, while the whole defence of a criminal case turns on the accused’s ability to understand the case and to instruct, in the Family Division of the Children’s Court the child’s instructions are simply a factor to be considered by the court. They are not determinative. This totally different context means that the criteria for assessing the capacity to give instructions in the Criminal Division of the Children’s Court are very different to that in Family Division cases.

Take your time

One of the most common problems faced by inexperienced lawyers in taking instructions from children is to assume that an interview with a child, even one with a learning or intellectual disability, can follow the same lines as that with an adult.

Many assume that if a client looks at them blankly that this means that there is a problem with capacity to give instructions and therefore fitness to plead will be an issue, then automatically seek an expert opinion.

However, with a careful approach to explaining roles and processes, experienced lawyers are able to get meaningful instructions from a substantial number of young clients without any need for psychological or psychiatric assessment.

This paper sets out suggestions for a careful approach, including a checklist at the end.

Overview

The basics:

  • the child is your client - always interview the child on their own at the outset
  • explain roles and processes before moving into detailed instructions
  • avoid leading questions – with obvious exceptions such as going through witness statements
  • ask questions in logical sequence
  • use plain/simple language
  • be prepared to re-frame questions
  • avoid repetitive questioning (the child may think that a different answer is required)
  • when asking for instructions, have the client explain the impact of varying instructions to be sure that they have a clear understanding of the consequences
  • use the checklist on the last page of this guide.

2. At the beginning

Who you are

Start by giving them a business card so that they can see your name in writing (if they can read). Ask them if they have a special place where they can put it because there might be a time between now and when they grow up that they might like to ring you (or if you’re not there, someone in your office who could help them).

Your role

Explain that you are there to:

  • make sure they understand why they are going to court
  • help them understand the court process
  • do the talking for them in court (or arrange for someone else to do the talking).

Explain that this means that you need to find out from them what they think about what the police say that they did.

Make sure that they understand that while the appointment might have been arranged by their parent/carer/social worker, you do not work for the parent/carer/social worker - you work for the kids. Explain that kids don't need to feel that they should tell us what they think anyone else wants to hear.

After the explanation of your role ask:

So, now I’d like you to tell me what my job is as your lawyer…

then fill in any gaps they may have forgotten or misunderstood.

Confidentiality

Explain that they are our boss and we have to keep their secrets. This means that we won’t tell anybody else what they have said without their permission.

Tell them that most other people they talk to do not have to keep their secrets – including their parent/carer/social worker – so they should be careful what they say to them. If in doubt, suggest that they talk to you before saying anything about court to anyone else.

Tools for assessment and instruction taking

Discuss the players in the court process

Ask them to tell you about their understanding of the court process.

If there are problems getting them to talk, or repeat back in their own words your explanations of the process, then consider having them draw pictures (if they draw the pictures themselves then they are more likely to absorb and retain memories of the discussion than if pictures are drawn for them).

Subject matter for pictures (on separate pieces of paper where possible) at an initial interview, where you explain the role while they draw, can include:

  • them
  • you
  • the informant
  • the prosecutor
  • any co-accused
  • parents/carers/social workers
  • the Judge/Magistrate
  • the court room, including where all the above sit, the court clerk and the witness box.

It can be useful to keep these drawings in an envelope on file in cases where there are doubts about capacity. On subsequent interviews they can be used as a way of establishing how much advice about your role and the system has been retained through asking the client to remind you who the people pictured are and how the system works.

In later interviews, especially when getting into to fitness to plead/mental impairment and sentencing issues, additional drawings can be helpful including:

  • the local child protection office (if they are on a protection order)
  • the local youth justice unit
  • the Children’s Court Clinic (if relevant)
  • Parkville Youth Justice Precinct (PYJP)
  • Thomas Embling Hospital/Forensicare (even though no kids have yet been sent there…).

Again, retaining these drawings can be an important way of checking the level of understanding/retention of memory of advice in later interviews.

Avoid leading questions

In order to be sure that the client is understanding our role and advice, and that they comprehend the court process, it is vital that they explain it all back in their own words without any leading prompting.

Leading questions should also be avoided when taking instructions because they can be a form of covert pressure - for example:

YESdo you want to plead guilty or not guilty? – involves an open choice
NOdo you want to plead guilty? – may be perceived as suggesting that this is what they should do.

3. Assessing capacity to instruct and gauging general comprehension levels

Why are they going to court?

Please tell me why the police are taking you to court (just what they are saying – not your version at the moment)

Note that there is no need for the client to have an intricate understanding of the elements of the offence, just a general understanding of the fact that they have been charged with having committed an offence, the role of the court, the impact of court decisions and possible consequences.

At lower ages or with intellectual disabilities their understanding of the reason for being charged and time periods etc may be limited - ask them to tell you what the police say they did and take your lead from them. Fill in gaps with just a few words to encourage them to continue in their own words. Their explanations will help to give you a sense of their level of understanding.

Frequent reference back to the pictures they have drawn can be helpful in reinforcing roles and processes and assessing the development of their knowledge and memory retention.

Guilty or not guilty?

It would be rare that the question of guilt or otherwise would be settled at an initial interview with a young or intellectually disabled client, especially if they have not previously appeared in the Criminal Division.

Usually the lawyer will need to explain that before advice can be given it will be necessary to:

  • get the police brief to check what the police and witnesses are saying
  • watch/listen to the record of interview to check what the client said to the police
  • get reports from any professionals already involved with the client (social workers, disability services, paediatricians etc)

It will then be necessary to get the client back in to talk about both the brief and the interview – and to talk about whether there is a need for a forensic assessment to consider fitness to plead, doli incapax and/or mental impairment.

Again, using the original drawings can be helpful in checking retention of memory of processes.

Fitness to plead, doli incapax and mental impairment

Fitness to plead

The first issue to consider with very young and/or learning or intellectually disabled children is whether or not they are fit to plead. Section 6 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMI Act) sets out the criteria for consideration, but with children the particular questions to consider are:

  • can the client understand and follow the proceedings in a way that ensures an ability to mount a defence (if likely to plead not guilty)?
  • can the client understand the evidence?
  • can the client give proper instructions to the lawyer?

If the answer to any of these questions is no, then fitness to plead is an issue.

However, in the Children’s Court, fitness to plead involves a matter being sent to committal because under existing legislation the fitness issue can only be dealt with by a jury (s 11 CMI Act).

Usually - if enough time is allocated for the interview and the pictures are used and re-used with patient explanations and active listening to the client’s discussion of their understanding of the process - it is possible for the client to develop enough of a knowledge of the court process and the evidence to be able to give adequate instructions. This is especially the case if the consequences of fitness to plead form part of the discussion to see if the client can comprehend the difference between a criminal penalty and an order made under the CMI Actunfitness process (supervision or unconditional release: s 18(4)).

If this is not the case, then a forensic assessment will be required to support a fitness to plead argument.

The lawyer is then acting as a friend of the court, not on instructions, although there is an expectation that they keep the accused and their guardian/s as informed as possible.

However, if the young person was under 14 at the time of the offence, logic indicates that it is arguable that somebody who is unfit to plead for general cognitive reasons that applied equally to both the time of the offence and the present time would by definition be doli incapax. The expert report should address both fitness to plead and doli to confirm that this is the case.

This would mean that it could arguable that it would be an abuse of process for the prosecution to proceed because even if the accused were fit to plead there would be no case to answer (see the legal discussion in the next section). The court should therefore be asked to strongly suggest to the prosecutor that the charge/s be withdrawn.

Ethical note: if you have an expert opinion saying that a client is incapable of giving instructions and is unfit to plead for that reason then you are not able to purport to take instructions from the client to proceed with a guilty plea without receiving an expert opinion to the contrary. This situation could constitute misconduct.
The only exceptions would be withdrawal, withdrawal for a caution or withdrawal for diversion that will not involve a finding of guilt.

doli incapax

The common law principle of doli incapax applies to charges against young people aged under 14 years at the time of the offence.

It requires the prosecution to prove, as an element of the offence, that the accused knew at the time of committing the offence that what they were doing was seriously wrong, not just naughty.

Many young people, even those of reasonably normal intelligence, are able to successfully use doli incapax on their first and sometimes second or third appearances, especially if these involve different kinds of offences.

When interviewing the client about this issue it is important to ask them to try to remember what they were thinking at the time of the offence – what they knew about police involvement and consequences at that time.

It is not uncommon for the police interview with a young person to include the question ‘do you know that what you did was wrong’ – thinking that this question is sufficient to cover the element in court. However, it is not sufficient for three reasons – which also need to be kept in mind for lawyers’ own interviewing of the client:

  • It is a leading question, and answers given to police leading questions are either of little probative value or are actually able to be excluded on voir dire
  • It is in the present tense, meaning the answer relates to the state of mind of the young person at the time of interview, not at the time of the offence
  • It only refers to ‘wrong’ not ‘seriously wrong’ – just knowing that what they did was wrong and would get them into trouble (with parents, teachers etc) is not enough.

This principle is strictly only applicable in relation to offences committed before the 14th birthday. It does not apply to any offences committed from the 14th birthday, even if the client’s ‘mental age’ is assessed as being under 14.

Mental impairment

Mental impairment in the Children’s Court is usually based on a learning or intellectual disability in those who were at least 14 years old at the time of the offence (if under 14 then doli incapax would apply).