Why unfit to plead doesn't mean unfit for justice

Image of a gavel.
These laws lead to indefinite detention in prison or other facilities for people who have not been convicted of any crime.

A range of support programs has been shown to improve access to justice for people with cognitive disabilities who have been accused of crimes, according to an investigation by the Melbourne Social Equity Institute at the University of Melbourne.

The two-year project also found these support programs can reduce the need for people with cognitive disabilities to be found unfit to stand trial and detained indefinitely.

A cost-benefit analysis shows the programs can also create significant savings for government.

The Unfitness to Plead report underlined he case of Indigenous man Marlon Noble who was found unfit to stand trial and spent 10 years in jail even though he never appeared in court or was convicted of any crime.

The UN Committee on the Rights of Persons with Disabilities found that Mr Noble had several of his rights violated, including the right to access justice, to equality before the law and to freedom from cruel, inhuman and degrading treatment.

Unfitness to plead laws are based on the idea that accused people should not be put on trial if they are unable to understand the legal process and the charges against them.

“While the main aim of these laws is to avoid unfair trials, declarations of unfitness can lead to indefinite detention in prison or other facilities for people who have not been convicted of any crime,” Professor Bernadette McSherry, the Institute’s Foundation Director said.

“There have been cases of people being imprisoned for much longer than if they’d been sentenced following a conviction.”

In 2015, the Institute brought together an interdisciplinary research team to develop practical and legal options for addressing this problem and to prevent discrimination against people with cognitive disabilities.

According to the research team’s final report, released today, people with cognitive disabilities face barriers across the entire criminal justice system. Disadvantages identified include:

  • Inaccessible court proceedings that rely on complex language
  • Inconsistent availability of support throughout court proceedings
  • Under-resourced legal services
  • Long delays in proceedings involving accused people with cognitive disabilities.

The “criminalisation of disabilities” whereby the environmental causes of difficult behaviour are ignored or played down, or behaviour associated with a disability is misinterpreted as defiance.

Professor McSherry said to comply with obligations under international human rights law, people with cognitive disabilities must be able to take part in criminal proceedings on an equal basis with other citizens.

She says this reflects the recommendations of a 2016 Senate Committee inquiry, which noted “indefinite detention is unacceptable and that state and territory legislation be amended in line with this principle”.

“Various forms of support can improve the accessibility of proceedings for accused people with cognitive disabilities,” Professor McSherry said.

The research team developed a Disability Justice Support Program, which helped accused people take part in legal proceedings and exercise their legal rights. This was found to reduce the need for unfitness to plead declarations.

The program did this by developing and introducing cost-effective, culturally appropriate supports for those at risk of being found unfit to plead into community legal centres in Victoria, New South Wales and the Northern Territory. Supports included Indigenous interpreters and gender specific supports.

The Unfitness to Plead project focused on those who are accused of a crime and are at risk of being unfit to plead.

Accused people with cognitive and other disabilities may face indefinite detention on the grounds of protecting themselves or others from harm if they are released. Unfitness laws seem to affect Indigenous Australians with disabilities more than any other group in the community.

The report says people are also pleading guilty to an alleged crime instead of seeking a determination of unfitness to plead because they believe, or were led to believe, they would spend less time in prison, even if this meant concealing the extent of their disability.

Forty-two per cent of men in Victorian prisons and 33 per cent of women have an acquired brain injury. This compares to 2.2 per cent of the general population.

Throughout Australia, people with disabilities are more likely to get caught in the criminal justice system, and it is generally agreed that more could be done to make sure criminal proceedings are more accessible to those with disabilities.

Funded by the Commonwealth Government’s National Disability Research and Development Research Scheme, the project has already led to:

  • Embedding a support program within community legal services for people with cognitive impairments charged with a crime, including Indigenous Australians
  • Apparent cost-savings to government, where costly unfitness to plead proceedings or imprisonment were avoided
  • Gathering evidence suggesting that well-timed support reduces offending by improving social inclusion and engagement with community-based support services.

Read more on Pursuit.