Introduction: Disability and criminal justice

For people with disabilities, the criminal justice system can be confusing and complex – especially if their disability involves some form of intellectual disability or impairment, or mental illness.

This chapter outlines the range of special procedures and support services available to assist people with disabilities who become involved in the criminal justice system.

Taking instructions from clients with disabilities

If you are working with a client with a cognitive impairment or other disability, you should make a conscious effort to ensure that they are given adequate support and the opportunity to make informed decisions. Never assume that a person with a disability cannot give instructions. Nor should you assume, prior to receiving such instructions, that you know what is appropriate or in their best interests.

For a detailed range of suggestions on how to assist a client to give accurate instructions, seeTaking instructions from clients who have cognitive impairment” in Understanding disability and the law. See alsoFitness to stand trial and the defence of mental impairment” for situations where a person is unable to instruct in relation to a plea.

Criminal charges

If a person with a mental illness or intellectual disability is suspected of having committed a crime, specific laws and procedures apply from the time of the police interview to sentencing. Police are required to have an Independent Third Person present when interviewing a suspect who has a psychiatric or intellectual disability (seePolice”).

If there is a connection between the person doing the action in relation to which they are being charged, and their disability or illness, then they might be entitled to raise the defence of “mental impairment”, defined under the Crimes Act 1958 (Vic) (“Crimes Act (Vic)”) as including mental illness, intellectual disability, dementia or brain injury.

This is a complete defence in the Magistrates’ Court and so should always be considered (seeFitness to stand trial and the defence of mental impairment”). However, there are significant potential consequences involved in raising this defence in the higher courts (seeProcedures”).

In addition to the standard sentencing options (see Sentencing in the Magistrates’ Court), further options are available to the court for people with disabilities who have been found to have committed a criminal offence (seeCriminal Justice Diversion Program”, “Sentencing” and “Assessment and Referral Court”).

Charter of Human Rights and Responsibilities Act

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) requires public authorities to consider and act consistently with human rights, and requires courts to interpret and apply legislation in accordance with the rights in the Charter Act. Public bodies such as Victoria Police are public authorities, and must act consistently with the Charter Act.

Charter Act rights that are relevant to people with disabilities who have contact with the criminal justice system are:

section 8: the right to equality before the law;

section 21: the right to liberty and security of the person;

section 24: the right to a fair hearing; and

section 25: rights in criminal proceedings.

The human rights that are set out in the Charter Act are not “absolute” rights. That is, section 7 of the Charter Act requires that rights are balanced against each other, and against other public interests. However, rights can only be limited in ways that are reasonable and justified in a free and democratic society.

The application of the Charter Act is still being tested in Victorian courts. People who think that their human rights have been breached should obtain detailed legal advice. It should be noted that the Charter Act does not create a new right to begin legal action for a breach of human rights. However, the Charter Act does allow a person to raise human rights arguments, along with existing remedies or legal proceedings. Advice can be sought from the Human Rights Law Centre (tel: 8636 4450).