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Wrongful arrest of man with autism and intellectual disability in Hong Kong

A man with autism was wrongfully arrested and detained in May (2015) in the investigation of a murder case. Irregularities, impropriety and poor efforts in rectifying the problem on the part of the force have stirred up public outrage. (EJI report; SCMP report; Autism Daily Newscast report)

People with mental and developmental disabilities are particularly vulnerable when facing the law enforcement and criminal justice system, primarily because of their learning and communication challenges and sometimes due to their restrictive and repetitive behaviour, which may seem "strange" or "suspicious".

Studies in other countries show people with neuro-disabilities - such as autism and attention deficit hyperactivity disorder - and those with possible-to-borderline intellectual disability are disproportionately represented in the criminal justice system. Cases of mistreatment are not infrequent around the world. Some are brutal, even fatal.

Ignorance, insensitivity, a lack of skills and an absence of proper policy guidelines are some of the common causes.

And these are problems not only with law enforcers, but also with other personnel involved in the legal process, including lawyers, social workers and carers. Among the public at large, there is a general lack of awareness and knowledge, and widespread bias and prejudice.

Sometimes, professionalism and due care on the part of the officers may help to avoid gross errors. But it is not enough. There should be solutions to tackle systemic issues.

Hong Kong has an obligation to implement the UN Convention on the Rights of Persons with Disabilities. Under Article 13, the government shall "ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants in all legal proceedings". There is also an obligation to "promote appropriate training for those working in the … administration of justice, including police and prison staff".

The city, by not mandating a duty to provide reasonable accommodation in its Disability Discrimination Ordinance, fails its obligation to ensure equal access to justice.

In England and Wales, the Court of Appeal in 2013 upheld a trial decision that police officers' over-hasty and ill-informed restraint of ZH, a 16-year-old autistic and epileptic boy who displayed a behaviour misunderstood as aggressive, were in breach of the statutory duty to provide reasonable adjustments, even though the court found no one involved acted in an ill-intentioned way. (ZH v. Commissioner of Police for the Metropolis (2013))

This case highlights the importance of training law enforcers and others in handling people with disabilities.

The British Psychological Society, in a position paper on children and young people with neuro-disabilities in the criminal justice system, calls for wider recognition and understanding of neuro-disabilities across health, social, education and justice agencies and early assessment and screening.

In ensuring their legal and procedural rights, we need legal reform, proper training and a multi-disciplinary, problem-solving approach.

*An edited version of this article entitled "Wrongful arrest of autistic man shows Hong Kong is failing in its duties to protect rights of disabled" was published in the South China Morning Post on 16 June 2015.