Finding the intellectually disabled people who were convicted of crimes when they were potentially unfit to stand trial isn’t a Government priority

It’s unclear how many people with intellectual disabilities were convicted of crimes when they shouldn’t have been.  

Between 1992 and 2004, intellectually disabled offenders were statutorily precluded from being found unfit to stand trial under the Criminal Justice Act.   

Prior to 1992, these offenders came under the “under disability” provisions of the act. While this meant they could be deemed unfit to stand trial, it also meant some intellectually disabled people were being detained in long-term psychiatric facilities because their condition was untreatable.   

The Mental Health (Compulsory Assessment and Treatment) Act of 1992 aimed to rectify this problem and created a new definition of mentally disordered, that excluded those with intellectual disabilities.  

However, one impact of this new definition was that these individuals could no longer be found unfit to stand trial. 

Justice Minister Kiri Allan said proactive identification of these people was not on the ministry’s workstream. 

“However, I do acknowledge that between 1992 and 2004 intellectually disabled offenders were precluded from being found unfit to stand trial. This is likely to have caused pain and difficulties for those affected and their families. 

“There are also likely to be other individuals who were caught by the ‘gap years’ but identifying them is an extremely difficult and lengthy task. It currently relies on individuals coming forward and tracking down material that is 20 to 30 years old.” 

Many people affected will not know they may be able to successfully appeal their convictions.  

The most recent victory was handed down in June by the Court of Appeal which quashed three aggravated robbery convictions from 1997 and 2000, for which the appellant had served prison time.

There’s a long way to go to make the justice system fair for people with intellectual disabilities, but advocates are encouraged by the sector’s willingness.  

“Laws still exist in Aotearoa permitting people’s rights to be limited because of disability.”
– Independent Monitoring Mechanism report

IHC director of advocacy Tania Thomas said personal advocates, specialist lawyers and closed courts were some of the suggestions it supported as a way make access to justice fairer for intellectually disabled people. 

“You can understand why it might be difficult to have every judge and every lawyer trained and every person involved with legal aid, because you might only get one of these cases a year and how do you keep your skills up? It’s difficult.  

“So the idea of specialist lawyers and judges might be the way to go. Having trained communication system assistants might even be a better idea.” 

She said New Zealand should look to set up an Office of the Public Advocate similar to what operates in Victoria, Australia. 

The Public Advocate is an independent statutory officer, with considerable legislative power to promote and safeguard the rights and interests of people with disability. 

Like the Ombudsman, the Public Advocate has significant powers to investigate allegations of abuse of vulnerable Victorians, reporting directly to Parliament. 

“That, to me, is a brilliant option. That office also checks out all the welfare guardianship requests and applications and renewals, to just make sure that people truly do lack capacity and making sure that choice and control isn’t taken willy-nilly off people.” 

Thomas said despite its importance, justice advocacy for people with intellectual disabilities was a small part of IHC’s work. 

“I’m looking at things that affect large groups of people… and it’s one of those things that you’ve just got to prioritise.  

“For me, prioritising getting people into paid employment, health, making sure that children can get educated just the same as any other child, you start thinking, okay, how much resource do we have?  

An August report from the Independent Monitoring Mechanism (IMM) found disabled people continued to face barriers in the justice system.  

“This leaves disabled people feeling that their rights of full participation are less important than perceived costs for government, business or organisations. Laws still exist in Aotearoa permitting people’s rights to be limited because of disability.  

“These laws reflect a view that disabled people lack capacity, which in turn reinforces this way of thinking. The Mental Health (Compulsory Assessment and Treatment) Act (MHCAT) and the Protection of Personal Property Rights Act for example, are laws that can mean disabled people lose the right to determine what happens to them.

“Compulsory treatment is disproportionately applied to tāngata whaikaha Māori. Disabled people have told the IMM that loss of control undermines their value as equal citizens and creates trauma,” the report summarised.  

The IMM is made up of the Disabled People’s Organisations Coalition (an alliance of disabled people’s organisations) the Human Rights Commission and the Office of the Ombudsman. Its role is to monitor the implementation of the Disability Convention, which New Zealand ratified in 2008.

The report acknowledged some progress with the commitment from government to repeal and replacing the current MHCAT Act, work underway by the Law Commission to review adult decision-making legislation (non-criminal). 

“There has been significantly increased investment in communication assistance within the court system, a range of initiatives to improve data collection and information accessibility within the court systems [and] the Ministry of Justice is trialling a range of court system and justice reforms to make processes more accessible, and more solution focused.” 

The report maintained there was considerable work to do, particularly in making sure the law was consistent with New Zealand’s obligations under the United Nations Convention on the Rights of Persons with Disabilities. 

“Every legislative opportunity to explicitly embed the Disability Convention in legislation must be taken. This has not occurred in a range of significant recent legal reform (for example health and education).  

“To date, the Disability Convention is only referenced in a single piece of legislation in Aotearoa (the Oranga Tamariki Act) and further work is needed to enshrine the Disability Convention in domestic legislation.” 

Emma Hatton is a business reporter based in Wellington.

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