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Unfitness to plead and indefinite detention of persons with cognitive disabilities

Addressing the legal barriers and creating appropriate alternative supports in the community
Cognitive impairment Person centred Access to justice Detention of persons People with disability Australia

Access to justice is a cornerstone of modern legal systems. Yet, for many persons with disabilities, systems of justice are largely inaccessible. International human rights law requires equal access to justice for all, including persons with disabilities. In the criminal justice system, laws regarding ‘fitness to plead’ or ‘fitness to stand trial’ raise serious concerns about accused persons with cognitive disabilities potentially being denied equal access to justice. Such laws call into play the rights to a fair trial, liberty, legal capacity and equal recognition before the law. 

Fitness to plead laws are based on the idea that accused persons should not be put on trial if they are unable to understand the legal process and the charges against them. The main aim is to avoid unfair trials. However, declarations of unfitness may lead to indefinite detention of unconvicted persons in prison or special facilities based on community protection. Such declarations may also lead to state intervention for a period of time which exceeds the length and/or gravity of the potential sentence for the original charge. 

This report summarises the findings of a two-year research project which was designed to develop practical and legal solutions to the problem of persons with cognitive disabilities – and particularly Indigenous people with cognitive disabilities – being found unfit to plead and detained indefinitely in Australia. 

The research team conducted a human rights analysis of current unfitness to plead laws. It also developed, implemented and evaluated a Disability Justice Support Program for accused persons at risk of being deemed unfit to plead and subject to indefinite detention. Three community legal centres across Australia participated in the program. Four non-legal ‘disability support persons’ were trained to provide support to persons with cognitive disabilities charged with a crime. The research team then evaluated the program to develop an evidence-base for implementing similar support models across Australia and elsewhere. The project findings have informed recommendations for improvements to enable better access to the criminal justice system and support for accused persons with cognitive disabilities. 

This report is funded with assistance from a funding grant offered under the National Disability Research and Development Agenda, jointly implemented by disability representatives from Commonwealth, State and Territory governments. 

Publication Details
0 9942709 7 9
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