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interviewingadultswithintellectualdisabilities.pdf
Advances in Mental Health and Intellectual Disabilities Interviewing adults with intellectual disabilities Gisli Gudjonsson, Theresa Joyce,
Article information: To cite this document: Gisli Gudjonsson, Theresa Joyce, (2011) "Interviewing adults with intellectual disabilities", Advances in Mental Health and Intellectual Disabilities, Vol. 5 Issue: 2, pp.16-21, https://doi.org/10.5042/amhid.2011.0108 Permanent link to this document: https://doi.org/10.5042/amhid.2011.0108
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16 Advances in Mental Health and Intellectual Disabilities Volume 5 Issue 2 March 2011 © Pier Professional Ltd
10.5042/amhid.2011.0108
PRACTICE
Introduction People with intellectual disabilities are recognised as being at
a disadvantage when coming into contact with the criminal
justice system (Fulero & Everington, 2004; Murphy & Clare,
2009). Their disadvantage relates to all components of the
criminal justice system, including police interviews, fitness
to plead and stand trial, competence to give evidence in
Court, and issues to do with criminal responsibility and
sentencing. The focus in this paper is on police interviews
and the capacity of people with intellectual disabilities to
give evidence in Court.
The police need to obtain accounts from witnesses,
victims and suspects that are clear, coherent, complete
and reliable, and meet essential legal requirements. The
intellectual capacities required for police interviews and
giving evidence in Court relate to understanding the nature
of the Oath (knowing the difference between telling the
truth and telling a lie, knowing the importance of telling
the truth in Court) and legal rights (access to free legal
advice, right to silence and that adverse inference can be
drawn from silence), being able to understand basic and
simple questions and provide comprehensible replies,
and understanding the implications of their answers
(Gudjonsson, 2010). The essential components involve the
person being able to communicate effectively and reliably
(give accounts of events and replies that are understood and
can be confidently depended on).
The aim of this paper is to consider the research
evidence on the relevant vulnerabilities and most effective
ways of interviewing people with intellectual disabilities, and
to outline some practical guidance on how those working
with people with intellectual disabilities can ensure that they
enable them to give an account of the difficulties they may
be experiencing.
Vulnerabilities and the competency requirements of witnesses and suspects ‘Vulnerabilities’ are best construed as a ‘risk factor’, rather
than a definitive marker of mental incapacity or unreliability
(Gudjonsson, 2010), which renders:
a witness prone, in certain circumstances, to providing
information which is inaccurate, unreliable or misleading
(Gudjonsson, 2006).
It will be argued that people with intellectual disabilities
have specific vulnerabilities arising out of their condition,
but these overlap to a certain extent with those of people
Gisli H Gudjonsson
King’s College, London, UK
Theresa Joyce
South London and Maudsley NHS Foundation Trust (SLaM), UK
Abstract People with intellectual disabilities commonly come into contact with the criminal justice system as victims, witnesses or suspects. Their
intellectual disabilities may make them disadvantaged in relation to all components of the criminal justice system, including police interviews,
fitness to plead and stand trial, capacity to give evidence in court, and issues to do with criminal responsibility and sentencing. The focus in
this paper is on police interviews and the capacity of adults with intellectual disabilities to give evidence in Court. Research into the types of
vulnerability seen by people interviewed by police have focused on interviewees’ understanding of the Oath and their legal rights, suggestibility,
acquiescence, compliance and perceptions of the consequences of making self-incriminating admissions. The essential components of
any interview and testifying in court require that the person can communicate effectively and give reliable answers and accounts of events.
Research into police interviews has highlighted the importance of taking into account the interviewee’s vulnerabilities and providing appropriate
support, and suggests a more humane approach to interviews and when vulnerable people testify in Court.
Key words police interviews; intellectual disabilities; learning disability; capacity; vulnerabilities
Interviewing adults with intellectual disabilities
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17Advances in Mental Health and Intellectual Disabilities Volume 5 Issue 2 March 2011 © Pier Professional Ltd
with autism spectrum conditions (Clare & Woodbury-Smith,
2009) and attention deficit hyperactivity disorder (Young,
2009; Young & Gudjonsson, 2010).
Expert witnesses are sometimes required to assess the
capacity of victims and witnesses to give evidence, which
includes understanding the nature of the Oath (Gudjonsson
& Gunn, 1982; Gudjonsson et al, 2000). Issues relevant to
the mental capacity of a witness to testify (‘competency
requirements’) are legally separate from those related to
‘reliability’ or the credibility of the witness, either when
interviewed by police or when giving evidence in Court.
The former is determined by the trial judge, the latter by
the jury on the basis of the weight attached to the evidence
(Gudjonsson & Gunn, 1982).
According to Gudjonsson (2010) witness capacity can
be currently viewed in the context of either Part 1 of the
Mental Capacity Act 2005 (OPG, 2005) or Section 53 of the
Youth and Criminal Evidence Act 1999 (HMG, 1999). The
former focuses on the capacity of impaired or disturbed
individuals to make decisions and applies to people above the
age of 16 years. In contrast, the Youth and Criminal Evidence
Act competency requirement applies to people of any age,
including very young children (R v Barker; [2010] EWCA
Crim 4; 21 January 2010). Section 53 (Subsection 3) states
that a person is not competent to give evidence in criminal
proceedings if it appears to the Court that the person is not
able to ‘understand questions put to him as a witness’ and
‘give answers to them, which can be understood’. Similarly,
in the case of suspect interviews, the detainee may be
considered unfit for interview if the necessary legal protection
provided at the police station is insufficient to ensure effective
communication and reliability (Gudjonsson, 2005).
According to Part II of the Youth Justice and Criminal
Evidence Act 1999, vulnerable and intimidated witnesses
should be provided with one or more ‘special measures’
to assist them to cope with giving testimony. They include
testifying behind a screen or via a live video link, giving
evidence in private, removal of wigs and gowns, use of
video-recorded evidence in chief, examination of the witness
via a registered intermediary, and use of aids to further
communication. The special measures are available to
provide vulnerable and intimidated witnesses with assistance
in order to enable them to give evidence as effectively as
possible and to minimise the stress associated with giving
evidence. Unfortunately, according to Burton et al (2006),
the special measures are not always provided in needed
cases due to the failure to identify vulnerable and intimidated
victims and witnesses. Gudjonsson and colleagues (1993)
identified a similar failure of identification of vulnerable
people interviewed at police stations, and this still remains a
problem. However, the understanding of the vulnerabilities
of people with intellectual disabilities, and of the importance
of appropriate support during police interviews and in
Court, has come a long way since the landmark Maxwell
Confait case in the early 1970s, which resulted in major legal
changes and extensive research into vulnerabilities and police
interviews (Gudjonsson, 2003).
Research evidence There are two key questions relevant to research. First, what
does the research evidence tell us about the idiosyncratic
vulnerabilities of people with intellectual disabilities when
being interviewed by police and giving evidence in Court?
Second, what are the implications of the research findings
for interview practice and ‘reliability’ of evidence produced?
(What are the translational implications for practice?) The
first question is addressed in this section, and the second
question in the following section.
The research evidence to date has taken account of the
particular vulnerabilities of people with intellectual disabilities
and has also been used as evidence in developing methods of
interviewing which take account of these vulnerabilities (Bull,
2010; Gudjonsson, 2006).
Research relevant to the psychological vulnerabilities
of persons with intellectual disabilities has focused on the
following areas.
The capacity of people with intellectual abilities to be witnesses in Court Gudjonsson et al (2000) found that most people (75%) with
an IQ score of 60 or above had a basic understanding of the
Oath, compared with only one third of those with IQ scores
between 50 and 60. None of those with IQ scores of below
50 understood the Oath (see Gudjonsson & Gunn, 1982, for
an early landmark case).
Understanding of legal rights Legal rights include the police caution and that adverse
inference can be drawn by the Court from their silence
in police interviews and not testifying in Court. The great
majority of people with intellectual disabilities do not
understand their legal rights without their being carefully
explained to them (Gudjonsson, 2003).
Suggestibility People with intellectual disabilities have poorer recall and
higher level of suggestibility (giving in to leading questions)
than those of normal IQ (Gudjonsson & Henry, 2003).
Acquiescence People with intellectual disabilities are significantly more likely
than persons of normal intellectual abilities to give affirmative
answers to questions (Clare & Gudjonsson, 1993).
Compliance A recent study shows that both acquiescence and compliance
are negatively related to IQ (Gudjonsson & Young, 2010).
Interviewing adults with intellectual disabilities
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18 Advances in Mental Health and Intellectual Disabilities Volume 5 Issue 2 March 2011 © Pier Professional Ltd
Memory capacity and confabulation People with intellectual disabilities have poorer memory
capacity and confabulate more in memory (produce material
that is distorted or imagined) than people with normal IQ
scores (Clare & Gudjonsson, 1993).
Impaired decision making Clare and Gudjonsson (1995) found that people with
intellectual disabilities were more likely than normal controls
to fail to appreciate the potentially serious consequences of
making false incriminating admissions during police interviews.
False confessions People with intellectual disabilities or borderline IQ scores
are over-represented in cases of miscarriage of justice
involving unreliable and false confessions (Gudjonsson, 2003,
2010; Kassin et al, 2010). However, low IQ is only one
factor that makes some people vulnerable to giving a false
confession. False confessions usually arise from a combination
of factors (Gudjonsson, 2003).
Implications for practice When making inferences from research about the potential
impact of the psychological vulnerabilities of people with
intellectual disabilities on interview performance and
outcome, it is important to bear in mind two important
factors. First, the psychological vulnerabilities identified in
research are on a continuum and each case needs to be
considered on its own merits. For example, some people
with intellectual disabilities are not unduly suggestible,
compliant or acquiescent, and do understand their legal
rights, including the police caution. Second, police interviews
involve a complex dynamic process, where there is an
interaction between the context (for example factual guilt
or innocence, strength of the evidence), custodial factors
(for example length of custody, style and nature of the
interviewing), individual vulnerabilities and support factors (for
example the presence of a lawyer or appropriate adult). It is
important that a careful and humane approach to interviews
(the interview is perceived by the suspect as being conducted
in a kind and sympathetic way) with relevant support may
overcome many of the problems associated with potentially
unreliable or misleading accounts being obtained from
vulnerable witnesses (Bull, 2010; Holmberg & Christianson,
2002). Vulnerability factors, even if present, should therefore
not be interpreted in isolation from other relevant factors.
They are only risk factors, and each case must be considered
on its own merits.
An important implication of research is that vulnerabilities
in adults are not always identified when they are interviewed
at police stations or appearing in Court (Burton et al, 2006)
and improved identification of vulnerable interviewees is
needed, including of those with developmental disorders
(such as intellectual disabilities, autism spectrum conditions
and attention deficit hyperactivity disorder). An important
recent development is Lord Bradley’s review of people with
mental health problems and intellectual disabilities in the
criminal justice system (Bradley, 2009). His recommendations
should in future assist with the identification of vulnerable
suspects interviewed at police stations and implementation
of appropriate protection to ensure fairness and justice
(Gudjonsson, 2010).
Mental health staff and carers may also be called upon
to provide support to people who have come into contact
with the criminal justice system as suspects in a crime. If they
are to act as an ‘appropriate adult’ in these circumstances,
they need to be able to recognise when the police interview
might be leading a vulnerable person into making statements
which are potentially misleading, and must be able to inform
the police about the best way of communicating with the
interviewee.
Good practice The evidence on how best to interview people with
intellectual disabilities should not be seen as useful just for
criminal matters. It incorporates good practice in trying to
determine people’s views generally, and to enable us to
improve how we communicate with people with intellectual
disabilities. The principles can also be important when
assessing capacity to make decisions generally.
Communication Mencap (2010) has produced guidelines on how to provide
written information to people with intellectual disabilities.
Some of this applies equally to the spoken word and,
although the principles may be well-known, they are not
always implemented in clinical interviews with people with
intellectual disabilities. This is at least partly because asking
questions in a clear and simple way can be extraordinarily
difficult, especially if the subject matter is either complex or
sensitive, or both.
The basic principles are:
give some thought to the questions you will need to
ask before the interview starts
keep the language clear and simple
try to keep to one idea per sentence
keep the sentences short
try to use the same word for the same thing
find out what the person’s own words are for specific
things (this can often be culturally based)
be supportive.
Bull (2010) summarises the factors that interviewers need to
take into account as follows.
They need to speak more slowly.
They need to allow extra time to enable the person
with intellectual disabilities to take in what is being said.
They need to allow time for the person with
Interviewing adults with intellectual disabilities
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19Advances in Mental Health and Intellectual Disabilities Volume 5 Issue 2 March 2011 © Pier Professional Ltd
intellectual disabilities to think about how they are
going to answer the question.
They should not rush the questions.
They should avoid interrupting.
They need to be patient.
Additional factors include explaining carefully what is required
of the witness, explaining their legal rights in simple terms and
ensuring they understand them, asking simple and non-leading
questions, and giving the witness appropriate breaks. All the
factors are equally relevant and important when people with
intellectual disabilities give evidence in Court. Unfortunately,
when witnesses are cross-examined in Court they are often
asked leading and complex questions and are accused of lying,
which will disadvantage persons with intellectual disabilities.
Asking questions People with intellectual disabilities can be interviewed as
victims and/or witnesses, and such interviews follow a set
structure which is based on research evidence, and, when
done properly, does enable people to give an account of
what has happened to them. This method of interviewing
is outlined in Achieving Best Evidence (ABE) interview of the
witness (Home Office, 2008).
Mental health staff and carers may be asked to give the
police information about the best way of communicating with
the person, recognising that they may rely on more than just
verbal methods. It may also be important, at this point, for
staff and carers to be positive about the person’s abilities to
give an account of what has happened to them. There are still
many occasions on which there is a suspicion that a person
with intellectual disability has been a victim of a crime, or of
abuse, but it does not proceed to a formal interview because
the judgement is made that they would not be capable of
participating in the legal process. In the interest of fairness
and justice, great effort should be made to ensure that people
with intellectual disabilities are provided with all necessary
support for them to provide during police interviews and
in Court the best possible account of their experiences
(Gudjonsson, 2010).
Asking detailed questions, or formal interviewing, should
be left to those investigating any allegation, but it is helpful to
staff and carers to understand the process, so that they can
work with the investigators in enabling the person to give
their ‘best’ account. They can do this by giving information
about the person, about the people in their lives, about their
preferred activities and about the best way of communicating
with them.
The structure of the formal ABE interview follows a set
format.
Rapport This is where the interviewer gets to know the person, talks
to them about things that they are comfortable with (which
is why information about the person before the interview
is so helpful). It also gives them a chance to understand
how the witness communicates. This is also a time when
the interviewer can make clear that saying that you ‘don’t
know’, ‘ don’t remember’ or ‘don’t understand’ is OK.
People with intellectual disabilities may feel under pressure
to produce an answer.
Free narrative The person is asked to say in their own words what
happened to them. They are not asked any detailed
questions, but instead encouraged to talk. The interviewer
may say things like ‘tell me more about that’.
Questioning In this stage the interviewer uses open questions to get
more detail about what has happened. They can only ask
questions based on the information they have been given
in the free narrative stage – to introduce other information
could seriously damage the accuracy of the information
gained. This is the stage when the psychological vulnerabilities
of the person with an intellectual disability can have most
impact on the quality of the information they give. If asked
leading questions, they may agree to things that are not true;
if given information which was not in their original account, it
may distort their memory of the events; if they feel that the
person interviewing them is disapproving of their answers,
they may try and say something (which may or may not be
true) that will please them.
It is also at this stage that the witness may be asked about
dates and times, asked for more detail about what the person
looked like, or asked for more detail about where any alleged
incident occurred. However, it is clear that with careful (non-
leading) questioning, it is possible for people to give detail
about the circumstances of any incident.
For example, the witness might say ‘It was a man’. An
inexperienced interviewer might ask ‘What colour hair did
he have?’ A person without intellectual disabilities might reply
saying ‘Oh he didn’t have any hair, he was bald’. A person
with intellectual disabilities might think that he should answer
the question as it stands, and reply with a hair colour. A more
experienced interviewer might ask ‘Can you tell me anything
else about what he looked like?’ or ask a question about his
head, and then go to a question with options such as hair/
no hair. When asking time of day, it may be necessary to try
and help the person remember a ‘concrete’ time marker, for
example was it before or after lunch, was it a day when you
go to work/college/centre or a day you are at home?
Closure In this stage, the interviewer summarises what has been said,
making it clear that if they have got anything wrong that it
is OK and right to correct it, asks if there are any questions
and thanks the person. The aim is also to try make them feel
Interviewing adults with intellectual disabilities
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20 Advances in Mental Health and Intellectual Disabilities Volume 5 Issue 2 March 2011 © Pier Professional Ltd
as comfortable as possible, as they are likely to have been
discussing upsetting or distressing events.
This structure has been shown to make it possible for
people to give an account, and to give it with a good degree
of accuracy. There is therefore no reason for mental health
staff, carers or the police to automatically dismiss the ability
of people with intellectual disabilities to provide evidence in
Court. Gudjonsson and Gunn (1982) provide an important
case in point.
Summary Major legal and scientific advances have been made
since the Maxell Confait case in the early 1970s
in understanding and identifying the vulnerabilities
of people with intellectual disabilities during police
interviews and when giving evidence in Court and the
kind of protection they require to ensure fairness and
justice.
There still remains a problem with properly identifying
the majority of vulnerable people entering the criminal
justice system and providing protection in the form
of the presence of appropriate adults and registered
intermediaries.
The recent review by Lord Bradley of people with
mental illness and intellectual disabilities in the criminal
justice system offers a unique opportunity to improve
the identification of vulnerable people detained and
interviewed by police.
Research into the types of vulnerability often seen
by people interviewed by police has focused on
interviewees’ understanding of their legal rights and
the Oath, suggestibility, acquiescence, compliance
and perceptions of the consequences of making self-
incriminating admissions.
The essential components of any interview concern
the person’s ability to communicate effectively and
reliably (give accounts of events and replies that are
understood and can confidently be depended on).
Research into police interviews has highlighted the
importance of taking into account the interviewee’s
vulnerabilities, and suggests a more humane approach to
interviews and when vulnerable people testify in court.
More legal reforms are needed to protect vulnerable
people being cross-examined in Court.
Address for correspondence Professor Gisli H Gudjonsson
Department of Psychology (PO 78)
Institute of Psychiatry
De Crespigny Park
Denmark Hill
London SE5 8AF
UK
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Interviewing adults with intellectual disabilities
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Guest-edited by: Jennifer Clegg
Articles in this issue include:
• The Agony and the Inspiration: Professionals’ Accounts of Working with
People with Learning Disabilities – Naomi Wilson, Herman P Meininger
and David Charnock
• Making it Happen for Everyone: A Reflection on Changing Services for Adults
with Learning Disabilities – David S Stewart and former students
• Health and Social Needs of People with Low Intelligence – Justine Schneider
and Jennifer Clegg
• Aggression in Intellectual Disability: A New Approach – Katie Turner and
David Clarke
• Choice for Young People with Learning Disabilities in Post-education Transition
– Axel Kaehne.
Mental Health Review Journal
Themed issue on Policy and Practice in Intellectual Disabilities
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