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Anna Arstein-Kerslake, Piers Gooding, Louis Andrews, Bernadette McSherry, Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities, Human Rights Law Review, Volume 17, Issue 3, September 2017, Pages 399–419, https://doi.org/10.1093/hrlr/ngx025
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Abstract
Findings of unfitness to plead can result in individuals with cognitive disabilities losing access to procedural safeguards in the criminal justice system. They can also lead to long periods of detention and, in some cases, indefinite detention of persons with cognitive disabilities in prisons and other secure facilities. This raises significant concerns with human rights breaches, including the rights to legal capacity, a fair trial and liberty. This article provides a critical analysis of unfitness to plead regimes in common law and civil law countries in the light of key rights set out in the United Nations Convention of the Rights of Persons with Disabilities. It then examines how unfitness to plead regimes might be reformed to ensure that the rights of persons with cognitive disabilities are protected.
1. INTRODUCTION
In 2003, Marlon Noble, an Indigenous man with a cognitive disability, was found unfit to plead after being charged with sexual offences against two children in Carnavon, Western Australia. If he had been convicted of the crime, Mr Noble would likely have served no more than three years in custody.1 Instead, Mr Noble spent 10 years in prison without any conviction or prospect of a trial.
In 2010, the Director of Public Prosecutions abandoned the charges against Mr Noble after the alleged victims publicly stated they had no memory of the assault.2 However, it was not until January 2012 that he was released from prison by the Governor on the recommendation of Western Australia’s Mentally Impaired Accused Review Board.3 The release was accompanied by a number of conditions and Mr Noble continues to be kept under strict supervision. Mr Noble’s story was reported across Australia, with the Australian Human Rights Commission making a video to publicise Mr Noble’s situation and to call for law reform.4
The procedural due process and substantive equality issues of unfitness to plead determinations raised by Mr Noble’s story are not unique to Australia. There are persons with cognitive disabilities across the globe whose rights to legal capacity and a fair trial are being breached by unfitness to plead laws. There are also persons with cognitive disabilities who are being denied their right to liberty by judicial determinations regarding detention after a finding of unfitness. The continuing detention of those found unfit to plead in prisons or other secure facilities may be viewed as a system of preventive detention based on the premise that because they have been charged with an offence and because they have cognitive disabilities they pose a risk to others.5 Their detention is said to be justified on the basis of community protection.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD)6 came into effect in 2008. Article 1 includes within the definition of persons with disabilities, those with ‘long-term physical, mental, intellectual or sensory impairments’. Considerable attention has been focused on Articles 12(2) and 12(3) of the CRPD which require that States Parties ‘shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ and ‘shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. The literature on Article 12 has primarily focused on what supports may be put in place for the exercise of legal capacity and whether or not it requires the eradication of substituted decision-making systems. Little attention has been given to the denial of legal capacity that occurs in findings of unfitness to plead in the criminal law. This article endeavours to begin to fill this gap and also to discuss how the denial of legal capacity via a finding of unfitness can lead to denials of the rights to liberty and access to justice more generally.
This article is divided into three sections. First, it provides an overview of unfitness to plead regimes in both common law and civil law systems. Secondly, it analyses the rights to legal capacity, access to justice and liberty as set out in the CRPD and in subsequent explanatory documents. Thirdly, in light of the significant implications for unfitness to plead regimes posed by these CRPD rights, it examines how unfitness to plead regimes might be reformed to ensure that stories, such as that of Marlon Noble, do not continue to occur.
2. UNFITNESS TO PLEAD REGIMES
The law on unfitness to plead is based on the premise that individuals should not be put on trial if they are unable to understand the legal process and the charges against them.7 It is designed to insulate such accused persons from both criminal procedure and criminal sanctions.8 The aim is to avoid unfair trials.9 However, declarations of unfitness also potentially deny accused persons the right to a fair trial in several ways. For example, they may be precluded from the opportunity to scrutinize allegations in a court of law.10 They may also be subject to detention and state intervention for a period of time which exceeds the length and/or gravity of the potential sentence if the finding of unfitness had not been made.
A. Unfitness in Common Law Systems
The common law test of an accused’s ability to participate in the trial process is derived from the 1836 English case of R v Pritchard.11 The ‘Pritchard test’, as it is known, requires that the accused must be ‘of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to know that he may challenge any of you to whom he may object and to comprehend the details of the evidence’.12
The test was developed further in R v Davies13 and R v M(John).14 To stand trial, an accused must be capable of:
understanding the charges;
deciding whether to plead guilty or not;
exercising the right to challenge jurors;
instructing solicitors and counsel;
following the course of proceedings; and
giving evidence in his or her own defence.15
Similar criteria apply in most common law jurisdictions,16 although the United States Supreme Court’s test focuses more heavily on the accused’s ability to instruct lawyers.17 In many jurisdictions the Pritchard criteria, or similar tests, have been incorporated into statute.18
B. Unfitness in Civil Law Systems
The position in civil law jurisdictions is not uniform. This is largely due to the dominance of inquisitorial justice. Whereas the adversarial model in common law jurisdictions notionally involves contests between ‘equals’, the inquisitorial approach is a judicial inquiry ‘directed at establishing the true facts’.19 Consequently, the capacity of accused persons to play an active role in their own defence looms larger in the common law tradition. In inquisitorial systems, it is assumed that court-driven fact-finding can alleviate the risk of injustice, and participation rights are accordingly given less weight.20 In exceptional cases, it is assumed that prosecutors will exercise their discretion to discontinue proceedings.21
Some civil law countries nevertheless provide for findings of unfitness to stand trial. In the Netherlands, prosecutions can be suspended if an accused is ‘unable to understand the scope of the charge against him [or her]’.22 Dutch courts have interpreted this statutory procedure as involving an inquiry closely resembling the common law Pritchard test.23 The trial is only temporarily postponed until the accused becomes fit to stand trial,24 although in principle the adjournment can be indefinite.25 The doctrine is rarely used; legal representation and prosecutorial discretion act as alternative avenues to avoid miscarriages of justice.26 German criminal law also recognizes that some accused are unfit to stand trial.27
In many inquisitorial systems, the accused’s mental state is only considered after a full trial of the facts, at the sentencing stage.28 In Sweden and Denmark, all accused persons are put on trial and it is assumed that lawyers will adequately protect their clients’ interests.29 Japan similarly eschews the doctrine of unfitness to plead, relying instead on prosecutorial discretion.30 These different methods of proceeding provide an interesting contrast to the adversarial approach in common law jurisdictions. They may provide some alternative approaches to unfitness to plead law to inform law reform in common law jurisdictions. This point is taken up in the final section of this article.
C. Functional and Status-Based Assessments of Capacity
When considered in isolation, the common law criteria are disability-neutral—they do not depend on the existence of impairment. Rather, they are directed at the individual’s ability to effectively participate in the proceedings. The criteria constitute a ‘functional’ assessment of whether a person’s decision-making skills are deficient in relation to certain tasks—for example, the ability to follow legal proceedings or instruct counsel.31
However, diagnostic labels are frequently used as a precursor to a functional assessment. In many jurisdictions, statutory or judge-made capacity tests are inherently status-based. A ‘status-based’ approach views incapacity as residing within an individual based on a diagnostic classification or status designation, such as mental illness or intellectual disability.32 The Pritchard test is inherently status-based. The judge’s charge to the jury in R v Pritchard33 hinged on whether the accused was of ‘sufficient intellect’ to follow proceedings. The jury direction in R v M(John), setting out the six criteria listed above, was prefaced by the judge’s instruction that the jury had to be satisfied ‘that the appellant was suffering from a disability which rendered him unfit to stand trial’.34 Status-based and functional tests often operate in tandem. In England and Wales, for example, the common law Pritchard/R v M(John) criteria are only explored if ‘the accused is under a disability’.35 The same two-step approach operates in most Australian states and territories.36 First, does the accused have impairment? Secondly, has that impairment affected the person’s mental capability to make functional decisions in a specified way? As Flynn and Arstein-Kerslake have noted, ‘disability is nearly always a threshold factor’.37 Even in those jurisdictions where the statutory test appears disability-neutral,38 the historically disproportionate application of unfitness laws to persons with impairments makes them discriminatory in practice.39
D. Deviations from the Regular Trial Process
After finding an accused unfit to plead, some courts deviate from the regular criminal trial process and the accused is removed from the mainstream justice system. The charges may be dismissed entirely,40 or the prosecution case may be tested (albeit in a limited fashion, focusing on the physical elements of the alleged offence) through a ‘trial of the facts’ or a ‘special hearing’.41 Special hearings vary throughout common law jurisdictions. For example, in most Australian jurisdictions they are conducted ‘as nearly as possible’ to a criminal trial.42 These alternative proceedings often abandon some of the procedural safeguards that underpin the adversarial criminal trial. In some regimes the requisite standard of proof is lowered significantly.43 The traditional lawyer–client relationship may be modified, allowing lawyers to exercise an ‘independent discretion’ to act in the client’s ‘best interests’ without instructions.44 The court may even be required to disregard any available defences.45 Some courts also deviate from normal sentencing procedure by imposing indefinite detention,46 or detention constrained only by a ‘nominal term’.47
These deviations from regular trial procedures are significant because they amount to differential treatment of persons with disabilities. The rationale for this differential treatment is professed to be protective: unfitness to plead regimes are said to prevent the legal system from unfairly discriminating against vulnerable individuals.48 However, there are discriminatory outcomes that are often the result of findings of unfitness to plead—for example, indefinite detention in prison, as was the case with Marlon Noble.49 But the denial of procedural safeguards can itself be discriminatory,50 and the Law Commission of England and Wales has warned that those protections should only be abandoned ‘with great caution’.51
The next section turns to an examination of three key rights set out in the CRPD which are relevant to the critical analysis of unfitness to plead regimes.
3. ARTICLE 12—EQUAL RECOGNITION BEFORE THE LAW
Article 12 has been viewed as the CRPD’s most revolutionary contribution to the rights of persons with disabilities.52 Article 12(1) reaffirms the right to ‘equal recognition before the law’ for persons with disabilities.53 This equal recognition right itself is not new; it mirrors ‘parent’ rights in the Universal Declaration on Human Rights54 and the International Covenant on Civil and Political Rights.55 This restated right to equality before the law is, however, accompanied by Article 12’s more innovative features.56
Article 12(2) obligates States Parties to ‘recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. This involves the capacity to be a holder of legal rights, and the full protection of those legal rights in the eyes of the law.57 Legal capacity is a distinct concept from mental capacity, which deals with the decision-making skills of a person. Mental capacity may vary from person to person, depending on external factors including social and environmental factors.58 Legal capacity, on the other hand, is the ‘key to accessing meaningful participation in society’.59 The CRPD Committee has made it plain that the right to legal capacity permits no qualifications or limitations.60
Article 12(3) requires States Parties to take ‘appropriate measures’ to help persons with disabilities exercise their legal capacity. This obligation is the core of Article 12,61 and has been described as the locus situ of States Parties’ obligation to provide supported decision-making.62
Article 12(4) provides that States Parties must ‘ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law’.63 Significantly, those measures must ‘respect the rights, will and preferences of the person’. This language shifts the focus from an individual’s objectively determined ‘best interests’ to his or her subjective wishes.64 Finally, Article 12(5) obligates State Parties to ‘ensure the rights of persons with disabilities with respect to financial and economic affairs, on an equal basis with others’.65
Read together, the limbs of Article 12 require what has been described as a ‘paradigm shift’.66 They encourage legal systems to abandon the emphasis on identifying the point at which a person is unable to express their will and preferences and therefore unable to exercise legal capacity.67 While some have argued that this shift is impractical,68 the CRPD Committee has made it clear that legal capacity is an absolute, inviolable right: impairment ‘must never be grounds for denying legal capacity or any of the rights provided for in Article 12’.69 The focus according to the CRPD Committee must be on identifying and implementing the supports necessary to help an individual exercise that absolute right to legal capacity.
4. ARTICLE 13—ACCESS TO JUSTICE
Article 13 of the CRPD addresses the right of access to justice on an equal basis with others. Article 13 directs States Parties to ‘ensure effective access to justice for persons with disabilities on an equal basis with others … in order to facilitate their effective role as direct and indirect participants … in all legal proceedings’. Hence, ‘access to justice’ encompasses formal and substantive access to the different ‘systems, information, procedures, processes and locations involved in the administration of justice’.70
Article 13 is closely related to Article 12, both in its development and substance.71 The CRPD Committee has stated that ‘the recognition of the right to legal capacity is essential for access to justice in many respects’.72 In order to enforce their legal rights against another, or to defend themselves in legal proceedings, including criminal proceedings, an individual must be recognized as the holder of legal rights. In this respect, Articles 12 and 13 are inextricably linked.
But this connection does not preclude tension. As noted, a declaration of unfitness to stand trial may inherently compromise the right to equal recognition before the law (and hence a person’s access to justice on an equal basis). Yet without a mechanism to identify and accommodate a person who is unable to understand court proceedings, the accused may be denied a fair trial.73 The adversarial system depends on equality of arms, and assumes the accused person will vigorously test the case against him or her. Yet the rules and procedures of the criminal law—designed chiefly to protect the rights of defendants – are complex. The process can be overwhelming, and the risk of injustice is real.
Article 13(1) requires States to provide accessibility measures ‘including through the provision of procedural and age-appropriate accommodations’ and training for those working in the judiciary.74 A failure to provide such accommodations may therefore amount to a form of discrimination under Article 5 (given the definition of disability encompasses failure to provide reasonable accommodation) in conjunction with Article 13. Article 9, which sets out a framing right on the need for accessibility, also plays a key role in the exercise of the right of access to justice, particularly regarding access to information and communication.75
In practical terms, accessibility measures and forms of reasonable accommodation in court proceedings are many and varied. They include the use of multimedia, written and audio materials, including plain language materials;76 a role for intermediaries and court assistants to advance the communication needs of witnesses, such as those provided for by the Registered Intermediaries scheme in England, Wales and Northern Ireland;77 and measures to make court proceedings less formal. As Gooding and O’Mahony have noted, the provision of procedural accommodations has the potential to circumvent the need for any assessment of fitness for trial in the first place.78
5. ARTICLE 14
Article 14 sets out the right to liberty and security of person, as well as a prohibition on unlawful or arbitrary deprivation of liberty.79 Like Article 12, Article 14 is the progeny of parent liberty rights in other United Nations instruments.80 However, it contains one very important disability-specific prohibition, ‘that the existence of a disability shall in no case justify a deprivation of liberty’.81
This limb of Article 14(1)(b) was the subject of considerable debate during the drafting negotiations.82 Some States Parties, including Australia, advocated strongly for the narrow view that Article 14 forbade detention solely on the basis of disability but not detention on the basis of disability combined with another justification (or multiple justifications).83 On this view, detention because of disability among other factors—for example, community protection—is justifiable. However, the CRPD Committee has adopted a broader interpretation, stating that Article 14 ‘prohibits the deprivation of liberty on the basis of actual or perceived impairment even if additional factors or criteria are also used to justify the deprivation of liberty’.84
Article 14 is closely intertwined with the legal capacity right in Article 12(2).85 Violations often go hand-in-hand: impairment is used to justify the denial of legal capacity through the removal of procedural safeguards; this in turn leads to deprivation of liberty. Liberty is deprived because of impairment, not because of any extant criminal proceedings. In these circumstances, custodial and supervision orders are paternalistic declarations that, because of the individual’s impairment, it is no longer in their best interests to enjoy the autonomy afforded to others. The CRPD Committee has stated that ‘the denial of legal capacity of persons with disabilities and their detention in institutions against their will’ is a violation of both articles.86
6. THE IMPLICATIONS OF CRPD RIGHTS FOR THE CRIMINAL LAW
The CRPD Committee’s interpretations of the rights set out above have significant ramifications for the criminal law.87 The CRPD Committee has repeatedly flagged the need to rethink the way criminal procedures address questions of fitness and capacity.88 No clear consensus has yet emerged as to exactly what the CRPD means for the doctrine of unfitness to plead.89 However, the CRPD Committee has given guidance in both its General Comment on Article 1290 and in its concluding observations to State Party reports.91 Gerard Quinn writes that the CRPD Committee can be ‘looked to for authoritative interpretations of the Convention’.92 It is made up of elected members from State Parties93 and these members are nearly all persons with disabilities. The CRPD Committee is also mandated to monitor the CRPD which was negotiated and drafted with the unprecedented participation of persons with disabilities and their representative organisations.94 For these reasons, the guidance of the Committee has significant weight. However, even with the guidance of the Committee, there continues to be differing perspectives on what Article 12 in particular requires for unfitness to plead regimes. Three interpretations have emerged.
A. Interpretation 1 – Supporting Capacity
The first potential interpretation is that Article 12 does no more than obligate States Parties to ensure all necessary steps are taken to help persons with disabilities exercise their legal capacity when charged with a criminal offence. This interpretation still requires a significant reformation of domestic unfitness to plead regimes, and would potentially reduce the number of accused persons found unfit to plead.95 It directs attention to the demands of Article 12(3), and the practical means through which the exercise of legal capacity might be supported. However, it also accepts that there will be cases where a fair trial cannot be guaranteed, and concludes that, in those rare cases, findings of unfitness are inevitable. This interpretation broadly reflects several states reservations to the CRPD’s universal capacity right.96
This interpretation also reflects the approaches taken by law reform bodies in several jurisdictions. In 2014 the Australian Law Reform Commission proposed reforming the test for determining unfitness.97 The Commission recommended that the Crimes Act 1914 (Cth) test be amended ‘to provide that a person cannot stand trial if the person cannot be supported’ to effectively participate in the trial.98 On this reformulation, the mental capacity assessment incorporates support structures rather than focusing on the individual’s cognitive functioning in isolation. But it still necessarily recognizes that there will be some cases in which supports will not be enough to secure a fair trial.
Similarly, the Victorian Law Reform Commission’s recent review of that state’s Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Victoria) called for the introduction of a formal support person scheme, potentially modelled on England and Wales’ registered intermediary system.99 The Commission also recommended the introduction of an education programme, inspired by ‘competency training’ programmes used in the United States, to help accused persons exercise their legal capacity and ‘become fit to stand trial’.100 But again, the focus of the review was on the operation of the Act’s procedures, ‘not whether they should exist at all’.101
The Law Commission of England and Wales also accepted that, while deviating from the trial process should be a last resort, ‘there will be a small group of defendants who will be unable to participate effectively in trial, whatever the level of support provided to them’.102 The Commission took the view that this approach was consistent with Articles 12 and 13 of the CRPD.103 Interestingly, however, it also acknowledged that the CRPD Committee might well disagree with this conclusion.104
The first interpretation also aligns with human rights law’s traditional, pre-CRPD approach to involuntary detention on the basis of impairment. Historically, the Human Rights Committee has tended to view persons with disabilities as special cases deserving differential treatment. Like the domestic law reform bodies, it has also expressly contemplated a need, in exceptional cases, to deny persons with cognitive disabilities the rights and safeguards afforded to others.
Questions of capacity and support arose in the case of Fijalkowska v Poland,105 which concerned involuntary psychiatric commitment rather than a finding of unfitness to plead.106 The Committee concluded that involuntary psychiatric commitment was a justiciable deprivation of liberty under Article 9 of the International Covenant on Civil and Political Rights.107 But the lawfulness of that deprivation depended, in large part, on the procedural safeguards in place. The Human Rights Committee upheld the author’s arbitrary detention claim because she was denied assistance and representation during the committal proceedings.108 However, the Committee also suggested ‘circumstances may arise in which an individual’s mental health is so impaired that so as to avoid harm to the individual or others, the issuance of a committal order, without assistance or representation sufficient to safeguard her rights, may be unavoidable’.109 Essentially, the Committee concluded that, in some cases, an individual’s impairment may justify abandonment of the procedural safeguards ordinarily guaranteed to individuals whose liberty is at stake—such as legal aid. The Committee also accepted that a decision to involuntarily commit a person ‘amounts to an acknowledgement of that individual’s diminished capacity, legal and otherwise’.110 These aspects of the Committee’s decision—written prior to the CRPD coming into force—appear inconsistent with the CRPD Committee’s view that the CRPD requires an absolute prohibition of detention on the basis of disability111 and with the unqualified nature of Article 12(2).112
The Human Rights Committee’s post-CRPD commentary is also inconsistent with the CRPD in key respects. For example, in its 2014 General Comment on Article 9, the Human Rights Committee stated that ‘the existence of a disability shall not in itself justify a deprivation of liberty’.113 The Committee’s suggestion that disability can be one of multiple reasons justifying detention contradicts the express position of the CRPD Committee.114
The Law Commission of England and Wales addressed some of the previously noted tensions in its 2016 report into the law on unfitness to stand trial.115 During a lengthy consultation process, the Commission asked respondents whether, in their view, declarations of unfitness to plead were consistent with Article 12. The Commission stated:
The Commission ultimately took the view that the reformed unfitness test it proposed—which still necessarily involved declarations of unfitness to plead—was ‘not incompatible with the United Kingdom’s duties under the UNCRPD, given the safeguards that we recommend be put in place’.117 Those safeguards included a statutory entitlement to a registered defendant intermediary,118 as well as overhauling the special hearing process to more closely resemble a criminal trial.119 The Commission’s conclusion is an example of the first interpretation of Article 12 in practice.Understandably, no disability rights academic particularly welcomed the suggestion that there may be a small group of defendants in criminal cases who will be unable, no matter the assistance provided, to participate effectively in trial. However, all acknowledged that this is liable to occur and that public protection concerns would require ongoing criminal proceedings in some form in some cases.116
This first interpretation is—potentially for practical reasons—preferred by domestic law reform bodies and some pre-CRPD human rights bodies.120 However, as will become apparent, the CRPD Committee’s view is that Article 12 requires something more than this interpretation. This is also consistent with international law, which requires that treaty provisions be interpreted based on the object and purpose of the treaty as a whole.121 An examination of the remaining text of Article 12 and other areas of the CRPD, lead to the conclusion that this first interpretation, while convenient in some ways, is not consistent with the treaty as a whole.
B. Interpretation 2—Detention on the Basis of Impairment
The second potential interpretation is that the CRPD prohibits detention on the basis of impairment, but not necessarily the declarations of unfitness to plead that may precede a deprivation of liberty. This interpretation draws support from the text of Article 14, rather than Article 12, although the CRPD Committee has made it clear that the two are inextricably linked.122
In 2014 the CRPD Committee released a brief statement on the proper interpretation of Article 14.123 The statement foreshadowed the more detailed guidelines released in September 2015.124 However, the earlier statement is important in its own right. The CRPD Committee stated that ‘[d]eclarations of unfitness to stand trial and the detention of persons based on that declaration is contrary to Article 14 of the Convention since it deprives the person of his or her right to due process and safeguards that are applicable to every defendant’.125
It is a clear statement that detention on the basis of unfitness is contrary to Article 14. However, it is unclear if the declaration on fitness to plead itself is a violation of the CRPD. Some of the CRPD Committee’s concluding observations are also unclear on this issue. For example, in October 2013 the CRPD Committee recommended that Australia ‘ensure that all persons with disabilities who have been accused of crimes and are currently detained in jails and institutions, without trial, are allowed to defend themselves against criminal charges, and are provided with required support and accommodation to facilitate their effective participation’.126 The Committee was silent on whether a declaration of unfitness to plead, without detention, violated any CRPD Articles.
Similarly, in October 2014, the Committee raised concerns that in New Zealand individuals can be ‘declared “unfit to stand trial” and on that basis deprived of liberty’.127 They recommended that New Zealand ensure ‘criminal justice procedure is followed in accordance with all the safeguards and guarantees that are applicable to non-disabled persons, and that deprivation of liberty should be applied as a matter of last resort’.128 On a literal reading, these comments were arguably directed only at declarations of unfitness leading to detention. While, at the very least, the CRPD Committee has been consistently clear that deprivation of liberty on the basis of impairment violates Article 14, international human rights law does not speak with one voice.
As outlined earlier, in Fijalkowska v Poland the Human Rights Committee suggested there would be cases in which impairment could justify deprivation of liberty and the abandonment of procedural safeguards.129 The Human Rights Committee’s post-CRPD jurisprudence—specifically, their 2014 general comment on the ICCPR’s liberty rights—also suggests that impairment can be a basis for deprivation of liberty if combined with another reasonable justification such as safety of the individual or community protection.130 Unfortunately, it does not appear that the Human Rights Committee considered Article 14 of the CRPD when preparing the general comment. As a consequence, there is inconsistency between that general comment and the CRPD Committee’s position on Article 14 of the CRPD.
The Human Rights Committee’s position is much more closely aligned to that which prevails under the European Convention on Human Rights. The language of Article 5(1) of the European Convention is problematic. Article 5(1) contains a prohibition on deprivation of liberty, coupled with a list of exceptions to that prohibition. Significantly, the exceptions include ‘the lawful detention … of persons of unsound mind’.131 The tension is clear. The CRPD expressly forbids detention on the basis of disability. The European Convention expressly permits it—if the antiquated language of ‘unsound mind’ is interpreted as ‘cognitive disability’.
As a consequence, the European Court of Human Rights has held that both declarations of unfitness to plead and indefinite detention on that basis are consistent with Article 5(1)(e) of the European Convention. In Juncal v United Kingdom,132 the applicant argued his detention was arbitrary because, due to the finding of unfitness to plead, the allegations against him were never tested.133 The Court held that, as his detention was due to ‘unsoundness of mind’ rather than the existence of any criminal proceedings, ‘the question of whether or not the applicant had performed the actus reus of the offence was of only peripheral relevance to the issues to be considered in connection with detention under article 5(1)(e)’.134 The Court’s position in Juncal is at odds with the rationale behind the special hearing procedures adopted in Australia, England and Wales. While special hearings vary between jurisdictions, they are all designed to ensure that a defendant found unfit to plead is still protected by at least some of the criminal law’s fundamental procedural safeguards. Juncal, however, stands for the proposition that if detention is justified by the accused’s unsoundness of mind, those procedural safeguards are largely irrelevant. The tension between Article 5(1)(e) of the European Convention and Articles 12, 13 and 14 of the CRPD is in need of analysis and the Court's attention.
It is important to note certain power dynamics at play. The law is not free from ingrained social hierarchies and existing roles of power and privilege. International law also falls prey to these realities. It is no secret that a privileged group, in general, has dominated the drafting and interpretation of the law.135 The same is true for international law. While there is some evidence that the tides of power are slowly turning, persons with disabilities and the rights violations they face were largely excluded from international human rights law until very recently. Representation in the upper echelons of the international human rights world is limited. For example, the election processes for the European Court of Human Rights and the Human Rights Committee do not refer to candidates with disabilities. In contrast, the CRPD ‘requires’ that the ‘members of the committee shall be elected by states parties, consideration being given’, inter alia, to ‘participation of experts with disabilities’.136 With this in mind, it is not a surprise that the Human Rights Committee did not consider Article 14 of the CPRD in its general comment on liberty rights or that the European Convention includes Article 5(1) that has been interpreted to explicitly allow for the deprivation of liberty of persons with cognitive disabilities.
These tensions within the law pose a problem for law and policy makers. In looking to legally binding texts, such as the European Convention and the CRPD, they are faced with potential inconsistencies. It is important to look critically at all legally binding documents and other texts that are available and in the case of the potential conflicts between the CRPD and other pre-existing texts, there are a few important things to keep in mind. The first is that the CRPD was negotiated with the unprecedented participation of persons with disabilities and their organizations, as mentioned above.137 Neither the European Convention nor any of the other United Nations human rights instruments have included the voice of persons with disabilities in their drafting. The second is non-discrimination and equality issues that arise from the legal sanctioning of deprivations of legal capacity and liberty rights of persons with cognitive disabilities. At a minimum, alternatives should be sought. The third issue to consider is the feasibility of one path over another. Instead of seeing inconsistencies in international law as an insurmountable barrier, scholars and law and policy makers can use the innovations of the CRPD as a lens through which to examine the status quo and explore whether the antiquated—and sometimes inconsistent—laws of the past sufficiently protect the rights of persons with cognitive disabilities.
C. Interpretation 3—Declarations per se as Violations
The final potential interpretation of the CRPD is that not only is the deprivation of liberty following a finding of unfitness to plead inconsistent with the CRPD—so too is the declaration of unfitness itself. This interpretation departs most starkly from existing law. However, it is the most consistent with the text of Article 12, as well as the CRPD Committee’s findings. It also may provide the most significant legal innovation for the protection of the rights of persons with cognitive disabilities.
As outlined above, Article 12 provides a guarantee of the right to legal capacity on an equal basis. Impairment can never be the basis for the denial of legal capacity.138 Legal capacity includes the right to enter a plea, to give evidence in one’s own defence and to be subject to a sentence from a court of law. A declaration of unfitness is a denial of the individual’s legal capacity and, in essence, a finding that it is against a defendant’s best interests139 to stand trial. It is a deviation—often on the basis of cognitive disabilities—from the usual trial process and the accompanying due process rights. It seems that unfitness to plead law, as it currently exists, may be irreconcilable with the right to legal capacity.
The extent of that deviation varies from jurisdiction to jurisdiction. For example, in Australia, in Queensland and Western Australia, at the extreme end of the spectrum, the trial process is abandoned entirely.140 Other states retain some aspects of the trial process but jettison others. In the Northern Territory, the traditional lawyer–client relationship is altered, allowing legal advisors to act without instructions according to their own view of the client’s ‘best interests’.141 In South Australia, the accused person loses the right to raise defences.142
Even though many jurisdictions explicitly strive to emulate the trial process as closely as possible,143 a special hearing is fundamentally not a trial. The procedures are different. The available verdicts are different.144 Ultimate dispositions—potentially including indefinite detention—are radically different. Therefore, a special hearing may not adequately uphold the CRPD obligation for persons with disabilities to have an equal right to a fair trial.145 A separate adjudication system for persons with disabilities likely does not meet CRPD standards. The Committee’s September 2015 guidelines on Article 14 support these conclusions. The Committee stated:
The significant difference between this statement and the Committee’s 2014 statement on Article 14 is that it makes it clear that both declarations and detention are contrary to the Convention. The CRPD’s implicit position appears to be that:The Committee has established that declarations of unfitness to stand trial or incapacity to be found criminally responsible in criminal justice systems and the detention of persons based on those declarations, are contrary to art 14 of the Convention since it deprives the person of his or her right to due process and safeguards that are applicable to every defendant. The Committee has also called for States parties to remove those declarations from the criminal justice system.146
detention on the basis of a finding of unfitness to plead is a violation of Article 14; and
declarations of unfitness to plead violate the right to legal capacity in Article 12 and the right to procedural safeguards in Article 13.
In October 2014, the Committee recommended that ‘the declaration of unfitness to stand trial be removed from [South Korea’s] criminal justice system in order to allow due process for persons with disabilities on an equal basis with others’.147 Significantly, the Committee appears to have been concerned with the declarations themselves and not detention.
The same month, the Committee recommended that Ecuador ‘refrain from declaring persons with disabilities unfit to stand trial when they are accused of an offence so that they are entitled to due process, on an equal basis with others, and that the general guarantees of criminal law and procedure are observed’.148 This recommendation does not appear to be contingent on the person being detained—the issue is the declaration per se.
In its 2014 concluding observations on Belgium, the Committee emphasized that ‘persons with disabilities who have committed a crime should be tried under the ordinary criminal procedure, on an equal basis with others and with the same guarantees, although with specific procedural adjustments to ensure their equal participation in the criminal justice system’.149 These comments were not qualified by reference to the deprivation of liberty, suggesting the declaration itself is the issue.
Each of these three interpretations finds some support in the text of the CRPD. The first is consistent with the imperative, enshrined in Article 12(3) and 12(4), to support persons to exercise their legal capacity. Similarly, the second is consistent with Article 14’s prohibition on detention on the basis of impairment. However, the authority of the CRPD Committee and the voice of persons with disabilities150 provide strong reasons for the final interpretation to be preferred.
7. IMPLEMENTING THE CRPD IN UNFITNESS REGIMES
A. Domestic Implications
As discussed above, the CRPD has significant implications for unfitness to plead regimes. One challenge is ensuring that there is a process that protects the right of persons with cognitive disabilities to legal capacity on an equal basis with others. This would, at a minimum, require that unfitness to plead regimes are disability neutral on their face and in their application. This will likely require a dismantling of unfitness to plead regimes and the construction of a system that never denies legal capacity and instead provides support for the individual to participate in a trial and a court structure that ensures fairness of the trial proceedings without depending on the accused’s particular abilities to enforce those rights.
It remains important to ensure that individuals are not forced to take part in an adversarial trial process that they do not understand sufficiently. This is important for persons with and with out cognitive disabilities. In the common law legal systems, the right to a fair trial is at risk of being violated if the accused person does not understand the charges against him or her, cannot instruct a lawyer, or is otherwise unable to participate in the trial process. The fairness of these systems relies partly on the accused’s ability to defend him or herself. The civil law systems, existing on a premise of inquiry as opposed to adversarial process, may not experience the same challenges. In such systems, the burden of justice may not be as heavily dependent on the accused’s ability to affectively navigate the trial process. More research remains to be done to explore how the civil and common law systems can inform each other in the area of unfitness to plead laws.
As discussed throughout this article, many unfitness to plead regimes as they currently exist come at too high a cost to the rights of persons with cognitive disabilities who are charged with a crime. The individual is often insulated from a trial process that he or she potentially does not understand. However, he or she is also often excluded from procedural justice altogether and liberty rights are often severely compromised. The CRPD Committee has set the challenge for a better system to be developed. This should be one in which the rights of persons with cognitive disabilities are sufficiently balanced and protected.
One key element of a CRPD compliant unfitness regime is appropriate support for persons with cognitive disabilities to exercise their legal capacity in criminal proceedings. In this regard, a project is currently being undertaken in Australia to explore what types of support are effective for persons with cognitive disabilities in the criminal justice system.151 Training of judges, police, and other professionals and practitioners involved with the criminal justice system will also be essential. More research remains to be done, including jurisdiction specific research to ensure that appropriate and effective supports are established that are tailored to the specific needs of persons with cognitive disabilities within each jurisdiction.
B. The Hard Cases: When Supports Fail
There may be times in which supports are not enough. The right to a fair trial would be compromised in common law adversarial systems if the individual were forced to go ahead with the proceedings when he or she was not able to participate, even with the provision of supports tailored to the individual. In such a case, in order to maintain compliance with the CRPD, the law’s response must not be unfitness to plead findings as they currently exist. Instead, a system should exist where the individual is not denied his or her legal capacity to participate in the trial, but is instead provided with an advocate who has responsibility for interpreting the will and preference of the individual to the best of that person’s ability and to convey that to the court and the relevant professionals involved with the trial process. Any such system must be non-discriminatory in order to encompass all individuals—those with disabilities and those without disabilities—who are unable to participate in the trial process and also to protect the rights of persons with disabilities to be free from discriminatory treatment.
8. CONCLUSION AND RECOMMENDATIONS
There may be a perception that it is in the best interests of accused persons with cognitive disabilities not to proceed with a trial. However, the repercussions of declarations of unfitness to plead may be far reaching. There are rights violations that are at risk, as discussed above, but there is also discrimination and prejudice against persons with cognitive disabilities that may be perpetuated by such findings.
More research remains to be done to discover the best way to protect the rights of persons with cognitive disabilities who have been charged with a crime. There is a need for research into what type of support persons with cognitive disabilities would like at the point of being charged with a crime, as well as in the court room and in the prison system. There is also a need to explore what alternatives to unfitness to plead laws will best protect the rights of persons with cognitive disabilities, including rights to legal capacity, liberty and access to justice.
The CRPD Committee has set a challenge for States Parties to abandon current unfitness to plead laws. This is likely to be the one path that will lead to full respect for the rights of persons with cognitive disabilities on an equal basis with others. Such a transformation will take time and will probably require incremental change. The following are a few key areas for reform:
Ensuring equality in sentencing: Any procedure that does exist after a finding of unfitness to plead or similar ruling must never result in a longer or more severe sentence than would have resulted if a standard trial had proceeded.
Ensuring disability neutral rules and procedures: Where there is a question of whether the accused can stand trial, the ensuing procedure must not take place on the basis of a disability alone and must not serve to create a segregated criminal justice system that only applies to persons with cognitive disabilities.
Creating tailored supports: There must be supports that exist for persons who are charged with a crime that are having difficulty understanding and participating in the criminal justice system. These supports must be tailored to the cultural, jurisdictional and ability-specific needs of the individual.
Ensuring accessibility: The criminal justice system must be made accessible for persons with a variety of different mobility needs as well as cognitive needs. This should be taken into consideration during building design and renovation as well as in the development of police and court documents and materials. Factors to take into consideration include: lighting that does not inhibit cognitive processing (for example, natural light); ramps and handrails for mobility assistance; and plain language and images for accessibility of documentation and information.
This article has identified different interpretations of the CRPD’s requirements in regard to unfitness to plead law. It has been pointed out that declarations of unfitness themselves are likely violations of the CRPD (Articles 12 and 13), and there is a need for the examination and reform of such laws. At a minimum, there is a need for critical reflection and reform. Marlon Noble’s case in Australia, discussed in the introduction to this article, demonstrates this need, as do several other similar cases.152 Unfitness to plead is only a small part of the criminal justice system that is in need of reform to ensure equality and protection of the rights of persons with cognitive disabilities.153 What is imperative is for the status quo to be challenged to ensure that individuals such as Marlon Noble are no longer subjected to indefinite detention.
Footnotes
Australian Centre for Disability Law, ‘Individual Communication under the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities — Original Communication’, Communication to the Committee on the Rights of persons with Disabilities in Noble v Australia, July 2012, at para 22.
Egan, ‘Marlon Noble “victims” don’t recall sex crimes’, The West Australian, 18 April 2011.
This body was established under Section 41 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
Australian Human Rights Commission, Presumed Guilty (2013).
On preventive detention regimes in general, see McSherry, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment (2014).
2006, 2515 UNTS 3.
Grubin, Fitness to Plead in England and Wales (1996) at 17.
Loughnan, Manifest Madness: Mental Incapacity in Criminal Law (2012) at 66.
Grubin, supra n 7 at 15.
Law Commission (England and Wales), Unfitness to Plead: An Issues Paper, 2 May 2014, at 3, para 1.8, available at: www.lawcom.gov.uk [last accessed 12 June 2017].
(1836) 7 C & P 303.
Ibid. at 304.
[1853] Car & Kir 328.
[2003] EWCA Crim 3452.
Ibid. at para 20.
For example, see R v Presser [1958] VR 45 at 48.
Dusky v United States 362 U.S. 402 at 402 (1960); Godinez v Moran 509 U.S. 389 at 404 (1993); Cooper v Oklahoma 517 U.S. 348 at 354 (1996).
For example, in Australia, see Section 311 Crimes Act 1900 (ACT); Section 43J Criminal Code 1983 (NT); Section 269H Criminal Law Consolidation Act 1935 (SA); Section 8 Criminal Justice (Mental Impairment) Act 1999 (Tas); Section 6 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Section 9 Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
van der Wolf et al., ‘Understanding and Evaluating Contrasting Unfitness to Stand Trial Practices: A Comparison between Canada and the Netherlands’ (2010) 9 International Journal of Forensic Mental Health 245 at 248.
Ibid.; van den Anker, Dalhuisen and Stokkel, ‘Fitness to Stand Trial: A General Principle of European Criminal Law’ (2011) 7 Utrecht Law Review 120 at 124.
van der Wolf et al., supra n 19, at 249; Dunn et al., ‘Forensic Psychiatry and its Interfaces outside the UK and Ireland’ in Gunn and Taylor (eds), Forensic Psychiatry: Clinical, Legal and Ethical Issues, 2nd edn (2014) 111 at 128.
Article 16 Code of Criminal Procedure [Netherlands].
van den Anker, supra n 20 at 125.
Article 16(2) Code of Criminal Procedure [Netherlands].
Bal and Koenraadt, ‘Dutch Criminal Law and Procedure: A Bird’s Eye View’ in Koenraadt, Mooji and Mulbregt (eds), The Mental Condition in Criminal Law: Forensic Mental Health Assessment in a Residential Setting (2007) 28.
van der Wolf et al., supra n 19 at 249.
Rothschild, Erdmann and Parzeller, ‘Fitness for Interrogation and Fitness to Stand Trial’ (2007) 104 Deutsches Ärzteblatt International 3029.
Grubin, supra n 7 at 52–3.
Dunn et al., supra n 21 at 125.
Ibid. at 128.
Committee on the Rights of Persons with Disabilities, General Comment No 1: Equal recognition before the law, 11 April 2014, at para 15.
Dhanda, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’ (2007) 34 Syracuse Journal of International Law and Commerce 429 at 431.
Supra n 11 at 304.
Supra n 14 at para 20 (emphasis added).
Section 4(1) Criminal Procedure (Insanity) Act 1964 (England and Wales).
For example see Section 311 Crimes Act 1900 (ACT); Section 269H Criminal Law Consolidation Act 1935 (SA); Section 8 Criminal Justice (Mental Impairment) Act 1999 (Tas.); Section 9 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.); Section 6 Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
Flynn and Arstein-Kerslake, ‘Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity’ (2014) 10 International Journal of Law in Context 81 at 87.
For example, see Section 43J Criminal Code (NT).
Committee on the Rights of Persons with Disabilities, supra n 31 at para 15.
Section 24(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA); Section 283 Mental Health Act 2000 (Qld).
For example, see Section 4A Criminal Procedure (Insanity) Act 1964 (England and Wales).
For example, see Section 315C(a)(ii) Crimes Act 1900 (ACT); Section 21(1) Mental Health (Forensic Provisions) Act 1900 (NSW); Section 43W(1) Criminal Code 1983 (NT); Section 16(1) Criminal Justice (Mental Impairment) Act 1999 (Tas.); Section 16(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Section 20B(3) Crimes Act 1914 (Cth); Section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ). See also O’Carroll, ‘Double Standards: Standards of Proof for Persons Found Unfit for Trial’ (2015) 22 Journal of Law and Medicine 871.
Section 43W(1) Criminal Code 1983 (NT).
Section 269M(B)(3) Criminal Law Consolidation Act 1935 (SA).
Section 66 Criminal Justice (Mental Impairment) Act 1999 (Tas.).
Section 43ZG Criminal Code 1983 (NT); Section 28 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.).
Grubin, supra n 7 at 15.
Gooding and O’Mahony, ‘Laws on unfitness to stand trial and the UN Convention on the Rights of Persons with Disabilities: Comparing reform in England, Wales, Northern Ireland and Australia’ (2015) 44 International Journal of Law, Crime and Justice 122 at 129. For example, see Australian Human Rights Commission, KA, KB, KC and KD v Commonwealth of Australia: Report into arbitrary detention, inhumane conditions of detention and the right of people with disabilities to live in the community with choices equal to others, Aus HRC 80, September 2014.
O’Carroll, supra n 43 at 881; R v M [2002] QCA 464 at para 15 (per de Jersey CJ).
Law Commission, supra n 10 at 3, para 1.8.
Quinn and Arstein-Kerslake, ‘Restoring the Human in Human Rights: Personhood and Doctrinal Innovation in the UN Disability Convention’ in Gearty and Douzinas (eds), The Cambridge Companion to Human Rights Law (2012) 36 at 40.
Article 12(1) Convention on the Rights of Persons with Disabilities.
Article 6 Universal Declaration of Human Rights 1948, GA Res 217A (III), 10 December 1948, A/810.
Articles 16 and 26 International Covenant on Civil and Political Rights 1966, 999 UNTS 171.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 11.
Ibid. at para 12. See also McSherry, ‘Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) 20 Journal of Law and Medicine 22.
Ibid. at para 13.
Ibid.
Ibid. at para 5.
Quinn and Arstein-Kerslake, supra n 52 at 47.
Quinn, ‘Personhood and Legal Capacity: Perspectives on the Paradigm Shift of Art 12 CRPD’ (Concept paper presented at HPOD Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, 20 February 2010), at 16, available at: www.inclusionireland.ie/capacity [last accessed 12 June 2017].
Article 12(4) Convention on the Rights of Persons with Disabilities.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 31.
Article 12(5) Convention on the Rights of Persons with Disabilities.
See generally Quinn, supra n 62.
Gooding and O’Mahony, supra n 49 at 15.
Dute, ‘Should Substituted Decision-making Be Abolished?’ (2015) 22 European Journal of Health Law 315; Freeman et al., ‘Reversing Hard Won Victories in the Name of Human Rights: A Critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities’ (2015) 2 The Lancet Psychiatry 844.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 9.
See generally Ortoleva, ‘Inaccessible Justice: Human Rights, Persons with Disabilities and The Legal System’ (2011) 17 ILSA Journal of International and Comparative Law 282 at 284; Flynn, Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities (2015) at 116.
See Flynn and Lawson, ‘Disability and Access to Justice in the European Union: Implications of the United Nations Convention on the Rights of Persons with Disabilities’ in Waddington, Quinn, and Flynn (eds), European Yearbook of Disability Law: Volume 4 (2013) at 7.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 38.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws: Report, Report 124 (August 2014) at 26, para 1.21.
Article 13(1) Convention on the Rights of Persons with Disabilities.
Article 9 Convention on the Rights of Persons with Disabilities.
See generally Flynn and Lawson, supra n 72.
Department of Justice (England and Wales), Registered Intermediaries: Assisting Vulnerable Witnesses and Defendants with Communication Difficulties in the Criminal Justice System (April 2015).
Gooding and O’Mahony, supra n 49 at 12.
Article 14(1) Convention on the Rights of Persons with Disabilities.
For example, see Article 9(1) International Covenant on Civil and Political Rights (ICCPR); and Article 3 Universal Declaration of Human Rights.
Article 14(1)(b) Convention on the Rights of Persons with Disabilities.
Daily Summary of Discussions at the Fifth Session of the Ad Hoc Committee, 26 January 2005, afternoon session; Daily Summary of Discussions at the Fifth Session of the Ad Hoc Committee, 27 January 2005, afternoon session; Daily Summary of Discussions at the Seventh Session of the Ad Hoc Committee, 18 January 2006, afternoon session; and Daily Summary of Discussions at the Seventh Session of the Ad Hoc Committee, 19 January 2006, morning session. All in the negotiation archives, available at: www.un.org/esa/socdev/enable/rights/adhoccom.htm [last accessed 12 June 2017].
Daily Summary of Discussions at the Fifth Session of the Ad Hoc Committee, 26 January 2005, afternoon session. In ratifying the CRPD, Australia included a Declaration to the effect that it understands the CRPD as allowing for ‘fully supported or substituted decision-making arrangements’ and ‘allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability’: ‘Convention on the Rights of Persons with Disabilities – Declarations and Reservations (Australia)’, United Nations Treaty Database, available at: treaties.un.org [last accessed 12 June 2017].
Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The Right to Liberty and Security of Persons with Disabilities (September 2015) at para 7.
Ibid. at para 8.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 40.
See generally Minkowitz, ‘Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and Beyond’ [2014] Griffith Law Review 434. See also Gooding and O’Mahony, supra n 49 at 21.
For example, see Committee on the Rights of Persons with Disabilities, supra n 84 at para 16.
Gooding and O’Mahony, supra n 49 at 20.
Committee on the Rights of Persons with Disabilities, supra n 31.
For example, see Committee on the Rights of Persons with Disabilities, Concluding observations on the Initial Report of Australia, 21 October 2013, CRPD/C/AUS/CO/1 at para 30; Committee on the Rights of Persons with Disabilities, Concluding observations on the Initial Report of New Zealand, 31 October 2014, CRPD/C/NZL/CO/1 at para 33.
Quinn, ‘The United Nations Convention on the Rights of Persons with Disabilities: Toward a New International Politics of Disability’ (2009–2010) 15 Texas Journal on Civil Liberties & Civil Rights 33 at 46. See also Weller, ‘The Right to Health: The Convention on the Rights of Persons with Disabilities’ (2010) 35 Alternative Law Journal 66 at 67. For a discussion of the role of UN treaty bodies, see generally Alston and Goodman, International Human Rights (2012) at 762–844.
Article 3(4) Convention on the Rights of Persons with Disabilities.
Kayess and French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1 at 3–4.
Gooding and O’Mahony, supra n 49 at 21.
For example, see the reservations and declarations of Australia, Estonia, Norway, Poland and Venezuela, in ‘Convention on the Rights of Persons with Disabilities – Declarations and Reservations’, United Nations Treaty Database, available at: treaties.un.org [last accessed 12 June 2017].
Australian Law Reform Commission, supra n 73 at 200.
Ibid. at 200-1 (emphasis added).
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (June 2014) at 91.
Ibid. at 93.
Ibid. at 5.
Law Commission, supra n 10 at 22, para 2.80.
Ibid. at 21, para 2.79.
Ibid. at 22, para 2.80.
(1061/2002), Views, CCPR/C/84/D/1061/2002.
Civil psychiatric commitment and detention on the basis of unfitness to plead are distinct processes which share certain procedural traits. A court or tribunal is called on to make a determination, in the individual’s best interests, about their mental and legal capacity. As a consequence of that determination, legal capacity is partly or wholly denied and the individual can be detained, potentially indefinitely.
Fijalkowska, supra n 105 at para 8.2.
Ibid. at para 8.3.
Ibid. (emphasis added).
Ibid.
Committee on the Rights of Persons with Disabilities, supra n 84 at paras 6–9.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 12.
Human Rights Committee, General Comment No 35: Liberty and Security of Person (art. 9), 16 December 2014, at para 19.
Committee on the Rights of Persons with Disabilities, supra n 84 at para 7.
Law Commission of England & Wales, Unfitness to Plead Volume 1: Report, Law Com 364, 12 January 2016, at 54, para 2.83.
Ibid. at 100, para 3.171.
Ibid. at 101, para 3.176.
Ibid. at 54, para 2.84. Statute law in England and Wales currently entitles vulnerable witnesses to a registered intermediary, but not defendants: see Section 33BA Youth Justice and Criminal Evidence Act 1999 (England and Wales).
Law Commission, supra n 115 at 157–8.
Ibid. at 101, para 3.176. See, for example, Australian Law Reform Commission, supra n 73 at 200; Human Rights Committee, supra n 114 at para 19.
Article 31 Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331.
Committee on the Rights of Persons with Disabilities, supra n 85 at para 8.
Committee on the Rights of Persons with Disabilities, Statement on Article 14 of the Convention on the Rights of Persons with Disabilities (September 2014).
Committee on the Rights of Persons with Disabilities, supra n 85.
Committee on the Rights of Persons with Disabilities, supra n 124.
Committee on the Rights of Persons with Disabilities, Concluding observations on the Initial Report of Australia, supra n 92 at para 30 (emphasis added).
Ibid. at para 33 (emphasis added).
Ibid. at para 34.
Fijalkowska, supra n 106 at para 8.3.
Human Rights Committee, supra n 113 at para 19.
Article 5(1)(e) European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 005.
Application No 32357/09, Admissibility, 17 September 2013.
Ibid. at para 5.
Ibid. at para 25.
See generally Wildman, ‘The Persistence of White Privilege’ (2005) 18 Washington University Journal of Law & Policy 245; Menkel-Meadow, ‘Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law’ (1987) 42 University of Miami Law Review 29; Minow, Making all the Difference: Inclusion, Exclusion, and American Law (1991).
Article 34(4) Convention on the Rights of Persons with Disabilities.
Kayess and French, supra n 94 at 3–4.
Committee on the Rights of Persons with Disabilities, supra n 31 at para 9.
For a discussion of the human rights implications of ‘best interests’ findings, see Flynn and Arstein-Kerslake, supra n 37.
Criminal Law (Mentally Impaired Accused) Act 1996 (WA); Mental Health Act 2000 (Qld).
Section 43W(1) Criminal Code 1983 (NT).
Section 269M(B)(3) Criminal Law Consolidation Act 1935 (SA).
Section 315C(a)(ii) Crimes Act 1900 (ACT); Section 21(1) Mental Health (Forensic Provisions) Act 1900 (NSW); Section 43W(1) Criminal Code 1983 (NT); Section 16(1) Criminal Justice (Mental Impairment) Act 1999 (Tas.); Section 16(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.).
Most Australian jurisdictions which provide for special hearings permit three alternative dispositions: unqualified acquittal, not guilty by reason of mental impairment or a ‘qualified finding of guilt’: see for example, Section 22(1) Mental Health (Forensic Provisions) Act 1900 (NSW); Section 43X Criminal Code Act 1983 (NT); Section 17 Criminal Justice (Mental Impairment) Act 1999 (Tas.); Section 17(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic.).
Article 13 Convention on the Rights of Persons with Disabilities.
Committee on the Rights of Persons with Disabilities, supra n 84 at para 16 (emphasis added).
Committee on the Rights of Persons with Disabilities, Concluding observations on the Initial Report of Republic of Korea, 29 October 2014, CRPD/C/KOR/CO/1, at para 28.
Committee on the Rights of Persons with Disabilities, Concluding observations on the Initial Report of Ecuador, 27 October 2014, CRPD/C/ECU/CO/1, at para 29(b).
Committee on the Rights of Persons with Disabilities, Concluding observations on the Initial Report of Belgium, 28 October 2014, CRPD/C/BEL/CO/1, at para 28.
Text to supra nn 85–94.
‘Unfitness to Plead and Indefinite Detention of Persons with Cognitive Impairments: Addressing the Legal Barriers and Creating Appropriate Alternative Supports in the Community’ funded by the National Disability Research and Development Grants administered by the New South Wales Family and Community Services Research and Data Working Group (RDWG NSW FACS). Chief Investigators: Dr Anna Arstein-Kerslake (University of Melbourne), Professor Bernadette McSherry (University of Melbourne), Professor Kerry Arabena (University of Melbourne) and Professor Eileen Baldry (University of New South Wales); Post-doctoral Researcher: Dr Piers Gooding (University of Melbourne) (October 2015–October 2017).
See generally Australian Human Rights Commission, supra n 49; Gooda and Innes, ‘Jailed without Conviction: Send Rosie Anne Fulton Home’, The Guardian, 14 March 2014; 7.30, ‘“Urgent Need” for Law Change as Mentally-Impaired Accused Detained Indefinitely, WA Chief Justice Wayne Martin Says’, ABC News Online, 10 July 2015, available at: http://www.abc.net.au [last accessed 12 June 2017].
Ben-Moshe, Chapman and Carey, Disability Incarcerated: Imprisonment and Disability in the United States and Canada (2014).
