Guest post from Piers Gooding: Unfitness to plead

Whilst I’m busy learning to complete tasks one handed and with no sleep, Piers Gooding from the University of Melbourne has kindly volunteered this guest post on the his recent work on unfitness to plead. Despite the aforementioned sleep deprivation I found his blog post and the summary of the Law Commission’s final report really interesting – I hope you do as well.

Although Lucy is busy with other, highly pressing matters, she was kind enough to offer us space on her blog to share some material on the recent Law Commission inquiry into unfitness to plead laws in England and Wales.

We created a sunmmary of the Law Commission’s recentinquiryinto Unfitness to Plead (Adams 2015 Summary of Law Com UTP, prepared by researcher, Louis Adams) for our own research at the University of Melbourne. But we thought it may be of interest to readers of this blog.

Our project focuses on unfitness to plead regimes in Australia, and the indefinite detention of people with cognitive disabilities, particularly Indigenous people with disabilities.

A recent example involved a teenager, ‘Jason,’ who was 14 when he was charged with manslaughter after allegedly crashing a stolen car. His 12-year-old cousin died as a result of the crash. The intellectually disabled 14 year-old never stood trial and was never sentenced, having been found unfit to stand trial. Yet he remained in prison for almost 12 years. If he had been convicted and sentenced as a juvenile, his jail term would have likely been three to four years. There are other examples, all of which serve as extreme expressions of widespread disadvantage facing people with cognitive disabilities in the criminal justice system.

Our research project seeks to develop and evaluate a trial support scheme, which aims to assist accused with disabilities. The scheme is somewhat similar to the witness intermediary scheme in England and Wales, but it seeks to combine elements of support measures developed in the light of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). In particular, we aim to adapt a well-known supported decision-making trial from South Australia (which Lucy has written about), and adapt it to the context of support for accused persons in the criminal law. The trial forms part of a much larger comparative analysis of unfitness to stand trial regimes in different Australian jurisdictions, and an analysis based on recent developments in international human rights law.

The Law Commission made commendable efforts to square unfitness to stand trial laws in England and Wales with the UN CRPD. Unsurprisingly, greater effort was placed on compliance with the European Convention on Human Rights. (On this point, the Law Commission explores some of the ongoing tensions between the CRPD and the ECHR. It reports on the ‘balancing exercise’ that may be required between the CRPD, which emphasises equal process and autonomy rights, while the ECHR gives greater emphasis to a welfarist model that includes formal exceptions for disabled people to achieve substantive equality.) Those seeking to imagine how ‘special defences’ could be reconceived in the mould of the CRPD might be disappointed by the Law Commissions emphasis on capacity testing. The recommendations may also fall foul of the UN treaty body overseeing the CRPD, which stated that ‘unfitness to stand trial and the detention of persons based on that declaration is contrary to article 14 of the convention since it [sic] deprives the person of his or her right to due process and safeguards that are applicable to every defendant.’

Whether or not the recommendations of the Law Commission will be given effect remains to be seen. Regardless, there is plenty of grist for the mill in the final report for anyone seeking to make the criminal justice system equitable for people with disabilities.

Piers Gooding is a postdoctoral research fellow at the Melbourne Social Equity Institute, University of Melbourne, Law School. His co-researchers on the project are Dr. Anna Arstein-Kerslake, Professor Bernadette McSherry, Professor Kerry Arabena, Professor Eileen Baldry, and Mr. Louis Andrews. More information about the Australian Unfitness to Plead Project can be found here

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