From the moment a person with a mental illness or intellectual disability is first interviewed by police, specific procedures, laws and human rights obligations apply. The defence of mental impairment should always be considered, but important legal factors must be considered. Assistance for going to court should be planned ahead, and consideration of criminal justice diversion programs, and the specialist Assessment and Referral Court that can provide psychological assessment and referral to welfare, health, mental health, disability, housing services, and/or to drug and alcohol treatment. More sentencing options are available and supervision and leave orders for forensic patients.

Introduction to disability and criminal justice

Last updated

1 July 2020

Overview

The criminal justice system is confusing for many people who are unfamiliar with criminal law and can be especially so for individuals with a disability. In order to help people understand this complicated subject of law, especially those who have an intellectual disability or impairment, a range of support services have been created. These extra services ensure that people with a disability receive fair access to the law.

Taking instructions from clients with disabilities

Most clients are able to make informed decisions on their own and are generally in the best position to decide what is appropriate for them and in their own best interests. However some clients, particularly those who have a cognitive impairment or other disability, may benefit from further support when giving their instructions. Ideas and advice about how lawyers can assist clients to give accurate instructions are provided in ‘Taking instructions from clients who have cognitive impairment’ in Chapter 8.1: Understanding disability and the law. See also ‘Fitness to stand trial and the defence of mental impairment’, below, 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 while being interviewed by police. This entitlement applies throughout the criminal justice process: from the initial police interview through to sentencing.

Where a correlation can be drawn between the action for 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 if it is relevant (see ‘Fitness to stand trial and the defence of mental impairment’, below). However, there are significant potential consequences to raising this defence in the higher courts (see ‘Procedures’, below). In the circumstances where a person with a disability has been found to have committed a criminal offence, the court has additional options available to it when deciding on an appropriate order (see ‘Criminal Justice Diversion Program’, ‘Assessment and Referral Court’ and ‘Sentencing’, below).

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), public authorities (e.g. Victoria Police) are required to consider and act consistently with human rights. Victorian courts are required to interpret and apply legislation in accordance with the rights established in the Charter. A person with a disability who becomes involved in a criminal matter has Charter rights. These rights 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 allows a person to raise arguments in relation to human rights, along with existing remedies or legal proceedings. However, the human rights set out in the Charter are not ‘absolute’ rights. Section 7 of the Charter requires rights to be balanced against each other, and against other public interests. This method of balancing is based on the notion that rights should 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 (see ‘Contacts’ at the end of this chapter) about whether their human rights have been breached and the options they have to take action.

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Disability, mental illness and the law