- Consideration of bail
- Time of determining appropriateness of bail conditions
- In the categorisation of the offences which effects the presumption of bail
- In decisions concerning the appropriateness of dispensing with bail
- 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.
Finally, it is in my strongest plea that I request, the following reforms to the Bail Act 1978 to address the issues relating to people with mental disabilities;
- Information about bail rights to be available in language and formats that are easily understandable
- The right to support, in order for the impaired to fully understand their rights, bail conditions and consequences
- A shorter period for an impaired to be held in custody if they are unable to comply with certain bail conditions
- The implement of emergency community based accommodation options as an alternative to the denial of bail if the person is unable to comply with bail conditions in their own accommodation
- A reform of definitions to include a greater scope for those with disabilities – change from ‘mental disability’ to ‘cognitive impairment’
- A mandatory set of guidelines for law enforcers when applying bail conditions to those with a mental disability, to achieve greater consistency.
Secondly, I look at the required reforms to the Crimes (Domestic and Personal Violence) Act 2007. As many people whom live in group residential facilities suffer from some form of cognitive impairment, they are under the care of others and when there is violence suffered by the resident, by a career, it is very unlikely that they victim is able to file for an AVO on their own. The difficulties that arise for people with a form of cognitive impairment could be; their inability to comprehend how to apply for an AVO, their inability to contact police or their inability to travel to a police station to report the violence. It is due to these concerns, that I suggest the Act to acknowledge the ability for police officers to step in and apply for orders, should they believe a person who requires care, is the victim of violence that is committed by the person whom is their carer.
It is also under this Act that I make reference to the difficulties that arise when the impaired, is the defendant of an AVO case. Margot Morris from the IDRS writes; “impaired capacity may involve inability to:
- Understand the nature, terms or effect of an order
- Understand the potential consequences of breaching an order
- Understand, or be able to participate in, the process involves in the making of an order, and/or
- Effectively comply with an order”
These issues potentially cause an unintentional breach of an AVO, purely due to the lack of understanding. Morris (2011) along with the IDRS note a case study whereby the defendant by the name of W (information withheld due to personal rights), had a relationship with a neighbour, and once the relationship ended, had an APVO taken out against him. W had a moderate intellectual disability and did not understand what the order against him meant and he continued to approach the female neighbour. W was arrested by police, refused bail and remained on remand for over 3 months. This case shows so clearly the way in which the lack of support mechanisms for W, resulted in imprisonment. With the reform of section 27 of the act and the provision of “education, counselling, medical treatment, drug and alcohol rehabilitation, adjustments to living situations and/or improved social engagement” (Morris 2011), this case could have been handled to the advantage of both parties, rather it proved to have detrimental consequences to the defendant (namely arrest, time in prison, criminal charges, and not to mention the mental and physical effects on the defendant).
Again, I will refer to the need for reform in regards to greater provisions of support in every process of dealings between the criminal justice system and those with a mental disability in order for the defendant to constantly understand the charges against them, their rights to challenge the case, the court proceedings and their obligations and consequences.
After looking at the relationship between the criminal justice system and those with an intellectual disability, it is clear that there are many reforms that are required in order to achieve consistent justice for all whom come through the criminal justice system – particularly those with an intellectual disability. With specific reference to the Bail Act 1978 and the Crimes (Domestic and Personal Violence) Act 2007, we have addressed the reforms required, with a strong emphasis on creating a criminal justice system that strives on supportive measures rather than coercive.
Bibliography.
- Conley, W., Luckasson, R., Bouthilet, G. (ed) 1992, ‘The Criminal Justice System and Mental Retardation: defendants and victims’ P.H Brookes Publishing Company, Baltimore
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Cootes, J. 2011, ‘Bail – Questions for Discussion’, Intellectual Disability Rights Service Inc, 30th July 2011.
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Healy, A. 2012, ‘Existing Bail Laws operate very unfairly for people with intellectual disability’, Coalition for intellectual Disability and Criminal Justice, 9th July 2012
- Jones, J. 2007, ‘Persons with Intellectual Disabilities in the Criminal Justice System’, International Journal of Offender Therapy and Comparative Criminology, Volume 51, Issue 6, p. 723
- Law Reform Commission, 1992, ‘People with an Intellectual Disability and the Criminal Justice System’ Lawlink,
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- Mercer, C. And Crocker, A. 2001, The first critical steps through the criminal justice system for persons with intellectual disabilities, British Journal of Learning Disabilities, Volume 39, Issue 2, pp. 130 - 138
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Morris, M. 2011, ‘Submission to the Statutory Review of the Crimes (domestic and Personal Violence) Act 2007’, Intellectual Disability Rights Service Inc, 18th November 2011.
- Scott Bray, R. 2012, Lecture Notes- Medico-legal and forensic Criminology, Department of Socio-Legal Studies, University of Sydney, Semester 2 Week 6 2012
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Smith, G. 2012, ‘Media Release: Mental Illness and the criminal justice system’, Attorney General- Minister for Justice, 23rd August 2012-09-10
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