Critically examining 2-3 key issues make a case for socio-legal reform regarding intellectual disability and the criminal justice system. The NSW criminal justice system comes in contact with thousands of people every year, all of whom are ruled by a set of general laws and precedents, regardless of their intellectual ability or otherwise. Reform regarding people with intellectual disability and their contact with the criminal justice system is essential in order to achieve the most profound result of justice for the greatest amount of affected people.
Two key issues relating to those with an intellectual disability and their contact with the criminal justice system, are the concerns of bail as well as the issues of domestic and personal violence. Both the ‘Bail Act 1978’ and the ‘Crimes (Domestic and Personal Violence) Act 2007’ require desperate reform, with the intention of creating a greater emphasis on supportive measures rather than coercive. Firstly, it is vital to define ‘intellectual disability’ in order to achieve cohesion and understanding throughout the paper.
Dr Rebecca Scott Bray from Sydney University 2012 uses the definition of an intellectual disability referring to a person who has “substantial limitations in both intellectual functioning, as well as adaptive behaviour. ” This definition poses some problematic issues as ‘intellectual disability does not account for the total scope of disabilities that need to be addressed by the legal system. This is why it is in my recommendations that a law reform is considered necessary to expand the range of disabilities that are taken into account.
Cognitive impairment is an overarching term that represents a greater range of disabilities, which is why the legal needs to undergo a reform to address this larger scope. A vital reform that I propose to be attended to would be the issue of bail for those with an intellectual disability. As previously stated, there is an overarching necessity for the criminal justice system to look towards more supportive measures rather than coercive when it comes to dealing with intellectually disabled people and the law.
This point will be reinstated throughout every recommended reform, due to its consistent relevance to the issues faced by those with an intellectual disability, particularly when looking at bail. People with an intellectual disability find the entire bail process incredibly dificult. The Intellectual Disability Rights Service 2011 states “IDRS advocates that it is appropriate that a person’s cognitive impairment or mental illness be taken in to account at five stages of the bail process. That is; 1.
Consideration of bail 2. Time of determining appropriateness of bail conditions 3. In the categorisation of the offences which effects the presumption of bail 4. In decisions concerning the appropriateness of dispensing with bail 5. In any decision making process about the potential revocation of bail” There is currently little or no consideration for the person’s cognitive impairment or mental disability, and therefore there is little support in place when these people come through the criminal justice system.
People with a mental disability find it incredibly hard to acquire bail due to the lack of support services that are offered or granted to them and the lack of suitable options of accommodations that they are presented with. Due to their mental disability, they may have also had previous offences and a history of failing to appear in court, which makes granting bail very difficult for a police officer who is bound by a set of legal obligations that do not incorporate a sufficient amount of protection to people with disabilities.
“The concept of presumptions against bail ought to be reviewed… it restricts the bail authority from exercising a discretion in favour of bail” (Cootes 2011). The Bail Act 1978 has “a disproportionate effect on people with intellectual disability. This is demonstrated by their disproportionate rate of incarnation. (Cootes 2011) This is an issue of the current Act that is clearly in desperate need of reform to include discretion when it comes to dealing with people with an intellectual disability.
In relation to the issue of bail and people with a mental disability, I will again refer to the point of reforming the law to incorporate a greater empathises on support. It has been found that many mentally disabled people whom come in contact with the law are often not aware of the majority of rights and obligations that they have, which is why bail conditions are broken.
The purpose of imposing bail conditions SHOULD be directly linked to reducing the hazard of severe reoffending, however in the case of mental disabilities; it is often seen as a gratuitous punishment. Those whom have these bail conditions placed against them often do not understand the bail conditions against them, find difficultly in managing to plan their commitments to attend court, and once they get to court, they can find it so confusing that they may leave without appearing.
There is insufficient protection in the Bail Act 1978 against unreasonable bail conditions, as well as insufficient support to explain bail conditions and implications as required by LEPRA. These issues are a direct influence of little support and accommodation of intellectual disabilities by the legal system, however these issues can be resolved with the assistance of greater support for these people.