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.

Overview

The criminal justice system is baffling for many who are unfamiliar with its workings and may be especially so for people with disabilities. To assist people – especially those whose disability involves an intellectual disability or impairment – a range of support services are in place.

Taking instructions from clients with disabilities

Most clients can make informed decisions for themselves and are generally in the best position to decide what is appropriate and in their own best interests. However some clients, particularly those with a cognitive impairment or other disability, may benefit from extra support in giving their instructions.

Ideas for assisting clients to give accurate instructions are provided in “Taking 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 what to do when a client is unable to instruct in relation to a plea.

Criminal charges

A suspect with a psychiatric or intellectual disability is entitled to have an independent third person present when being interviewed by police. This entitlement applies throughout the whole criminal justice process: from the initial police interview through to sentencing.

Where a correlation can be drawn between the action about which the person is charged and the person’s disability, it may be to their benefit to raise the defence of “mental impairment”. “Mental impairment” is defined in the Crimes Act 1958 (Vic) (“Crimes Act (Vic)”) as including mental illness, intellectual disability, dementia, and brain injury. Mental impairment 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 to raising this defence in the higher courts (seeProcedures”).

There are additional options 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

Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”), public authorities (e.g. Victoria Police) are required to consider, and act consistently with, human rights. Courts are required to interpret and apply legislation in accordance with the rights in the Charter Act.

The 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 Charter Act allows a person to raise human rights arguments, along with existing remedies or legal proceedings. However, the human rights set out in the Charter Act are not “absolute” rights. Section 7 of the Charter Act requires rights to be balanced against each other, and against other public interests. This balancing calls for rights to be limited only in ways that are reasonable and justified in a free and democratic society.

People can receive advice from the Human Rights Law Centre (seeContacts”) about whether their human rights have been breached and the options they have for redress.