Protecting the Interests of Vulnerable Defendants in the Criminal Justice System: The New Zealand Experience

Abstract

Approaches to the management of people with intellectual disabilities (IDs) vary across jurisdictions. However, the inconsistent development and implementation of official policy has often resulted in a significant over-representation of persons with developmental difficulties in criminal justice systems worldwide. This reality led the New Zealand government in 2003 to introduce dedicated legislation recognising the special needs of offenders with an ID. The article examines the New Zealand legislative response to the challenges presented by this cohort of offenders, in the light of emerging international data of the incidence of, and official responses to, offenders with special needs. In New Zealand, the emerging problem of how to manage intellectually disabled offenders who commit serious crimes, and the legislative response to it, was driven by changes in mental health legislation in the early 1990s that had effectively disenfranchised persons with ID with challenging behaviours from regimes of supervisory care and treatment. The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 has provided for a separate regime of compulsory care and rehabilitation that may be accessed either directly as a criminal justice disposition, following a finding of unfitness to plead or legal insanity, or as a result of transfer from the mental health or penal systems. The compulsory care regime has proven effective in addressing the needs of intellectually disabled offenders, increasing numbers of whom are young people, who would have great difficulty coping in a prison environment. The New Zealand experience contrasts with experience in other jurisdictions where offenders with an ID are often over-represented in prison statistics and subject to victimisation and abuse. The article suggests that change is clearly required as a matter of urgency to ensure that offenders with an ID are able to benefit from the positive rights guaranteed under the UN Convention for the Rights of Persons with Disabilities and other rights instruments.

Keywords

Intellectual disability compulsory care human rights

Introduction

As a relatively high profile cohort of vulnerable people, offenders with an intellectual disability (ID) present special challenges for those charged with resolving their outstanding legal issues, and ultimately, in their care and management. In addition to the fundamental difficulties associated with general learning disorder, as manifested in the demands of independent living, work and social relationships, specific challenges relate to questions of interrogation and arrest, prosecution, sentencing and appropriate dispositions within the criminal justice system. In the UK, over the last 10 years, there have been increasing efforts by politicians and other decision-makers to divert people with IDs from prosecution, although such efforts have resulted in the inconsistent implementation of various government policies.¹ This has contributed to increasing numbers of people with ID being dealt with by criminal justice agencies. However, while prevalence rates vary, depending on the particular research study, a consistent finding is that there is a significant over-representation of persons with developmental disabilities in the criminal justice system worldwide.²

In order to deal with the challenge of people with IDs in the criminal justice system, in the early 2000s, New Zealand introduced radical new legislation. This was in response to the fact that by the mid-1990s, it had become clear in New Zealand that the inadequacy of existing legislation meant that a new approach was needed to provide more accurate means for determining the criminal responsibility of, and more suitable disposal options for, such offenders. Therefore, in 2003, the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 was enacted. The Act laid down a comprehensive statutory regime for the compulsory care and rehabilitation of persons with an ID who had been convicted of offences, while recognising and safeguarding their special rights. This novel legislation was enacted in tandem with the Criminal Procedure (Mentally Impaired Persons) Act 2003, which codified and expanded the law governing mentally impaired offenders generally. The two statutes were intended to provide a complete legislative ‘package’ for the disposition of intellectually disabled offenders who had been found to be unfit to stand trial or legally insane, or who, having been convicted of an offence, required a therapeutic disposition on account of ‘mental impairment’. New Zealand courts have held that ID, as defined in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, may constitute mental impairment, ensuring that intellectually disabled offenders are not subject to discrimination in meeting the broader policy objectives of the legislation.

The purpose of this article is to examine the New Zealand legislative response to offenders with an ID within the criminal justice system, by providing an overview of the legislative model. The more general question of the problem of ID within the criminal justice system as a whole will also be considered, including a discussion on the challenges posed by ID within prison populations and how, within the New Zealand model, offenders may be diverted from the prison regime to the compulsory care regime in order to better accommodate their needs as persons with a disability. The article will then consider the question of the human rights of people with an ID before concluding with a discussion of how rights under the Convention of the Rights of Persons with Disabilities might be better protected.

The History of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

The New Zealand legislation has now been in force for 15 years. The legislation is the only legislation in New Zealand dedicated to intellectually disabled persons and provides an exclusive protective regime for the disposition and care of intellectually disabled offenders entering the compulsory care regime. Inevitably, the new legislation has created some interpretative challenges for the courts, as judges have had to grapple with novel legislative concepts and give effect to a strong human rights focus within the legislative scheme. In particular, a number of court decisions in recent years have reflected on the statutory power given to the courts to extend the term of ‘compulsory care’ orders under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.³ This power has proven to be a controversial feature of the legislation. While the expressed aim of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 was to limit detention orders to a maximum period of three years,⁴ in reality the failure of the legislature to define criteria limiting the courts’ ability to repeatedly extend such orders has resulted in the situation whereby compulsory care risks becoming indefinite preventive detention. This feature of the legislation has resulted in further legal challenges alleging that the statutory regime is discriminatory, that it permits the arbitrary detention of those subject to it and that it fails to adequately protect the rights of intellectually disabled offenders. Some of these issues will be considered as the article progresses.

Initial Catalyst for the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

It became clear soon after the enactment of the Mental Health (Compulsory Assessment and Treatment) Act 1992, New Zealand’s first major mental health Act in over 20 years, that a legislative gap had been created in relation to intellectually disabled persons. The 1992 Act provided a new focus on the rights of patients. It represented a shift in emphasis from a paternalistic approach, aimed at care and protection, to one promoting patient autonomy. The statutory definition of ‘mental disorder’ was revised adding, for the first time, a ‘dangerousness’ limb. This meant that despite the presence of observable phenomenological indices of mental dysfunction a person could not be declared to be ‘mentally disordered’ unless their condition also posed a serious danger to their own health or safety or that of others.⁵ In addition, and of significance for the purposes of the present discussion, the new definition of ‘mental disorder’, unlike its predecessor,⁶ omitted any reference to ID. Instead it simply proscribed the use of the compulsory assessment and treatment provisions of the Act in respect of any person by reason ‘only’ of s. 4(e) ‘…intellectual disability’.⁷ This led to clinicians taking the restrictive approach that if a person’s disorder of mood, perception, volition or cognition was a feature of their intellectual handicap, then s. 4 prevented compulsory intervention. As a result of this interpretive approach, significant numbers of people with an ID, who had previously been detained in protective long-stay psychiatric institutions, were discharged into the community, often without adequate support or supervision. The simple rationale was that since they were no longer ‘mentally disordered’ and could no longer be ‘treated’ in a psychiatric setting. Included were a small number of intellectually disabled men with co-existing behavioural issues, some of whom, upon their unsupervised release into the community, committed serious criminal and sexual assaults. This unintended consequence of the amendment of the definition of ‘mental disorder’ led to the development of new policy for the care and containment of such individuals.⁸ Ultimately legislation was drafted in the form of the Intellectual Disability (Compulsory Care) Bill, which was introduced in the New Zealand Parliament in 1999. Under the original Bill, compulsory care was extended to people who were not offenders but who had exhibited behaviour posing a serious risk of danger to the health and safety of themselves and others and who had refused to accept appropriate care and support. However, when the Bill was reported back from the Health Select Committee, the ‘non-offender’ group had been removed. The current Act does not encompass non-offenders.

The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, together with its companion statute, the Criminal Procedure (Mentally Impaired Persons) Act 2003, now provides a scheme which permits the provision of compulsory care and rehabilitation for people with an ID who have been charged with, or convicted of, an imprisonable offence. The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 primarily provides for the disposal of those offenders for whom compulsory care is considered an appropriate therapeutic intervention. For this reason, it is widely regarded as not constituting a penal statute. The implications of this thinking are considered later in the article. In terms of the functional relationship between the two statutes, the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is parasitic upon the Criminal Procedure (Mentally Impaired Persons) Act 2003, which defines the nature of orders that may be made by a court where an offender is acquitted on account of insanity, found unfit to stand trial or at sentencing made subject to a hospital order. The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 has exclusive application to offenders with an ID and defines ID and how compulsory care can be initiated in an appropriate case. However, there are other routes by which an intellectually disabled offender may become subject to the compulsory care regime. These include reclassification from the assessment and treatment regime of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or transfer from the prison system pursuant to Part 4 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is designed to give Judges appropriate care and rehabilitation options while recognising and safeguarding the distinctive rights of persons subject to the Act.⁹ The Act also provides appropriate levels of care for people who, while no longer part of the criminal justice system, still remain subject to the Act.

An offender who falls within the terms of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is referred to as a ‘care recipient’. He or she may be made subject to an order which requires the person to receive care and rehabilitation in a secure facility or a supervised community setting. These orders are subject to periodic review and cannot extend beyond an initial period of three years,¹⁰ unless extended by order of the court.¹¹ Since no defined period is laid down in the Act, such orders may be extended indefinitely.

Coming Under the Regime

Suffering from an ‘intellectual disability’ is a necessary precondition for a person to fall within the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. ‘Intellectual disability’ is defined in s. 7 in the following terms:

A person has an intellectual disability if the person has a permanent impairment that –

results in significantly sub-average general intelligence; and

results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and

Became apparent in the developmental period of the person.

Wherever practicable, a person’s general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.

For the purposes of subsection (1)(a), an assessment of a person’s general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed –

as 70 or less; or

with a confidence level of not less than 95%.

The skills referred to in subsection (1)(b) are-

communication:

self-care:

home living:

social skills:

use of community services:

self-direction:

health and safety:

reading, writing, and arithmetic:

leisure and work.

For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.

The section is subject to section 8.

The definition reflects the definition of the American Association of Mental Deficiency, where ‘mental retardation’ is defined as ‘significantly sub-average general intellectual functioning resulting in deficits in adaptive behaviour, and manifested during the developmental period’.¹² Under the New Zealand legislation, in addition to being intellectually disabled, a person must also have been charged with or convicted of a criminal offence. As was noted above, there are a number of different routes by which a person meeting these criteria may become subject to the regime. These include, in addition to a finding of legal insanity or unfitness to stand trial, the situation where an offender has been convicted of an imprisonable offence and, instead of passing sentence on the offender, the Court orders the person to be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.¹³ In each different situation, the offender is made subject to a ‘compulsory care order’.¹⁴ Compulsory care orders (CCOs) are inherently coercive in that they require a ‘care recipient’ to ‘accept the care properly given’ to the care recipient under the order.¹⁵ ‘Care’ is not defined in the statute so is broadly open to interpretation by those administering the Act.

Types of Compulsory Care

CCOs in New Zealand are of two types: secure care or supervised care. A ‘secure care’ order means that the care recipient is required to stay in a secure facility while ‘supervised care’ may require the care recipient to stay in a facility or another place.¹⁶ However, a court cannot make a CCO unless it is satisfied that the person has an ID and that a ‘needs assessment’ under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 has been completed and that the person is to receive care under a care programme completed under the Act.¹⁷ A needs assessment is a necessary prerequisite to the making of a CCO, in any circumstances. The purposes of a needs assessment are threefold:

To assess the kind of care the care recipient needs;

To identify one or more suitable services capable of providing care of that kind for the care recipient; and

To prepare a care and rehabilitation plan for the care recipient.¹⁸

The preparation of a care and rehabilitation plan must be completed as quickly as practicable. Its purpose is to identify the ‘personal needs’ of the care recipient.¹⁹ A wide range of needs are specified in the statute. They range from the care recipient’s social, cultural and spiritual needs and extend to medication and dietary needs, and aptitudes or skills of the persons that should be maintained and encouraged. Other special needs of the care recipient must also be identified.²⁰

ID Offenders in New Zealand

While New Zealand now has dedicated legislation to manage offenders with an ID, the numbers of those using ID forensic services is typically small, relative to the total numbers of offenders in the criminal justice system. Figures provided by the New Zealand Ministry of Health show that as at 31 December 2012, there was a total of 318 individuals who had been made subject to a CCO under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 since the commencement of the legislation in September 2004.²¹ Ten only of these individuals had been made subject to secure CCOs, having been found unfit to stand trial on serious charges,²² and less than 10 had, at that time, been transferred as care recipients from the prison system to the ID system.²³

By 31 December 2012, there were 121 care recipients, mainly managed in community-based facilities, while approximately 15 per cent were detained in secure hospital facilities.²⁴ Maori are over-represented in the care recipient population, accounting for approximately 40 per cent of the total.

Yet while these figures suggest relatively small numbers of ID offenders under care, they do not necessarily disclose the full picture. A new category of ID offenders, identified since the coming into force of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and said to constitute a sizeable proportion of care recipients, are described as ‘The New Care Recipients’.²⁵ It has been noted that these persons have received little if any support from ID services before becoming care recipients and may not have been identified as having an ID before being assessed following the offending. Their developmental experiences were typically disruptive and disorganised, while their offending was symptomatic of a problem-oriented lifestyle.²⁶ As Dr Anthony Duncan has observed, this (mainly young) group would typically have reasonably good basic self-care skills and, but for their offending, would not be associated with an ID service provider. Their likely lot would be prison or ‘coping on the margins of society’.²⁷ More recently, Intellectual Disability Services in New Zealand have been receiving an increasing number of requests for assistance, and the arrival of care recipients coming across from Oranga Tamariki (the New Zealand Ministry for Children). That agency has struggled to manage and contain adolescents with the most severe developmental experiences who are in need of care and protection and sometimes coming into conflict with the criminal justice system.²⁸

In New Zealand, a state agency, the Disability Support Services, part of the National Health Board, funds services to support the administration of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. It funds the High and Complex framework, a number of services that support the operation of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and provide services for people subject to CCOs.

Needs assessment and service co-ordination is provided by the National Intellectual Disability Care Agency (NIDCA), which provides needs assessment and service co-ordination to both care recipients and NIDCA civil clients.

Intellectual Disability Within the Criminal Justice System

Most people with ID who become involved in the criminal justice system do so as victims of crime.²⁹ Yet persons with mental illness and disability generally continue to be over-represented in the criminal justice system worldwide, despite increases in the numbers of programmes available for vulnerable offenders. In the US, these include specialised law enforcement–based responses, jail diversion programmes, mental health and veteran courts, and re-entry courts aimed at reducing offenders’ involvement in the correctional system.³⁰ As regards offenders with an ID in particular, prevalence rates vary widely across jurisdictions. A study by Joan Petersilia in 2000 found that at any time between 4 and 14 per cent of incarcerated individuals in the US had a diagnosis of ID.³¹ The 2006 study of Cashin, Butler, Levy and Potter, looking at ID in a New South Wales inmate population found a prevalence rate of only 3 per cent of persons with ID in the criminal justice system,³² whereas a 2008 study of prevalence rates among Israeli prison inmates found that 69.6 per cent of respondents from an Israeli prison scored positive for borderline or more severe forms of ID.³³ In contrast, an English study found no presence of ID among remand prisoners. However, the study concluded that while men with ID were not over-represented in prison, there were a number of men close to the disability range who were psychologically very vulnerable.³⁴ In reality, comparison of available research on the prevalence of ID in the criminal justice system is very difficult ‘because research samples are not always representative of “true” ID offenders, and the method by which they obtain data varies substantially among studies’.³⁵ The truth is prevalence rates vary widely, although there is evidence that people with borderline ID (IQ 70–85) amount to between 25 and 30 per cent of prison inmates, while another 10 per cent of inmates have mild ID (IQ 50–69).³⁶

But beyond the specific challenges presented by the high incidence of ID among prison populations, is the fact that there is significant over-representation of persons with developmental disabilities in the criminal justice system generally worldwide. There are many factors which may impact on the susceptibility of persons with ID becoming involved with criminal justice agencies. While they are not necessarily more likely to commit crimes, they may be more likely to get caught if they become involved in criminal behaviour, especially in a peripheral capacity. Furthermore, they may not realise that the conduct they are involved in actually constitutes a crime.³⁷ Factors which may increase the risk of involvement in the criminal justice system include an over-representation of mild ID in low income minority groups, which collectively experience higher rates of police involvement, the social status of individuals with ID, making them easy targets for criminal prosecution by association with other offenders, even though they may not fully understand societal rules and laws, and the danger of false confessions for crimes they did not commit.³⁸ Furthermore, their social vulnerability, defined by its core characteristic of gullibility, may mean that individuals with an ID are vulnerable to social manipulation, especially within the criminal justice system.³⁹

A further factor compounding the likelihood of involvement of people with an ID in the criminal justice system is the fact that many such people, who may have limitations in intellectual functioning, often do not show signs of disability. This means that they may not be recognised as having a disability by key justice players, including legal counsel, judges and juries, possibly affecting their perceived capacity to participate in criminal proceedings. Indeed, in ‘Death Penalty Issues Following Atkins’,⁴⁰ the authors identify a number of significant misconceptions surrounding public and professional perceptions of persons with ID in the criminal justice system. These may apply at all stages of the criminal justice system, including arrest and detention, pre-trial, trial, conviction and sentencing and incarceration.⁴¹

The first misconception is that people, including legal professionals, may question the existence of mild ID, particularly where it is associated with grave criminal offending. When endeavouring to establish a case for mild ID, there is a risk of overgeneralising that all individuals with ID have particular features and behaviours, for example, of someone with Down syndrome. In other words, to be accepted as having a mild ID, even jurors, judges and defence lawyers have maintained that the person must ‘look retarded’. This assumption that ID can be detected quickly, because it would be obvious, has meant that people with a mild ID, that is, those who are able to function with the least assistance, present the greatest obstacle, to lawyers, the criminal justice system, and even their own defence lawyers.⁴² Because of the tendency of such persons to try to ‘look like’ persons of average ability, or presenting with a ‘cloak of confidence’, people with a mild ID are rarely suspected of, or evaluated for, or identified as having severe deficits and mental disability.⁴³

The second misconception which may cause people to question whether a person has mild ID, is the fact that those who function at a lower level of mental disability are commonly referred to as ‘childlike’. This may imply that their behaviour is comparable to that of a much younger child. This is rarely the case for offenders who may function in the ‘upper levels of the continuum of mental retardation’.⁴⁴

The level of cognitive and adaptive functioning of a person with mild mental retardation, although in general significantly different from most individuals, can include specific areas in which he or she may show some strength, particularly in areas in which skill acquisition can occur through systematic training and instruction.⁴⁵

This implies that individuals with ID at the upper end of the continuum may, in most respects, be no different from their normal counterparts who may score slightly higher on an IQ test or show less impairment in day-to-day functioning.⁴⁶

In addition, people with ID who offend or who are involved in the criminal justice system may be vulnerable to unjust treatment for many other reasons. These may be both systemic and personal to the person with an ID.

At a personal-level deficits in social skills, communication difficulties, factors like homelessness, unemployment, alcohol and drug abuse, sexual victimisation and dysfunctional childhood experiences may all increase the risk of exploitation of persons with ID and exposure to the possibility of offending behaviour.⁴⁷ In addition, other factors going to the adaptive behaviour skills of a person with ID may also exacerbate their risk of engagement with the criminal justice system. These include, poor judgment or impulse control, interpersonal relationship difficulties, attention-seeking behaviour, poor management skills, interpersonal difficulties exacerbated by substance abuse, peer pressure exacerbating impulsive behaviour and boredom.⁴⁸

Prison Environment

Prison environments present special difficulties for persons with an ID. These relate both to the challenges associated with compliance with rigid rules and regulations, and being a ‘compliant’ inmate, and vulnerability to abuse and exploitation from other inmates.⁴⁹ Indeed the risk of trauma exposure, in the form of sexual or physical assault, among persons with serious mental illness in jails and prisons, including persons with an ID, is of great significance. Prison is an especially violent place for persons with mental disorders generally. It is estimated that inmates with mental illnesses are up to eight times more likely to be the victims of sexual abuse than non-mentally ill inmates.⁵⁰ The psychological consequences of trauma victimisation are potentially severe and may include fear, anxiety, depression, substance abuse⁵¹, suicidal ideation and post-traumatic stress disorder, quite apart from the risk of sexually transmitted disease and HIV associated with sexual trauma.⁵² Yet often, persons with learning disabilities are simply not recognised as such. Research has revealed significant flaws in the support and identification of people with ID in prisons. Often information which accompanies such people into prison fails to show the presence of learning disabilities or difficulties identified prior to their arrival at the prison. Once in prison there are invariably no established procedures for identifying such impairments and where prison staff are aware of a prisoner’s learning disabilities, they may be unaware of available support within the institution, for such things as healthcare and education. ⁵³

Transferring Care Recipients from the Penal System to the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 Regime

Under the provisions of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 where a person with an ID has been sentenced to a term of imprisonment before the commencement of the Act, it is open to the superintendent of an institution to have the person assessed prior to completion of their sentence to ensure appropriate treatment is provided.⁵⁴ In other circumstances, a prison manager may apply to a care co-ordinator to have a prisoner assessed, if there are reasonable grounds for believing the prisoner has an ID.⁵⁵

In New Zealand, an issue of some importance has been whether it is possible for a court to have an offender assessed with a view to detention in a secure facility rather than making an order for preventive detention under the Sentencing Act 2002. This was considered in R v Britz ⁵⁶ where the sentencing judge in the High Court, in a prosecution involving serious sexual assault charges, rejected the possibility of a care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 in favour of a finite prison sentence. The Court observed the ‘difficult balancing exercise’ involved in selecting ‘the most appropriate protective mechanism', i.e. whether preventive detention or a finite term coupled with an order for compulsory care under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. In the event, the Court imposed a sentence of 12 years and four months and a minimum period of imprisonment of 8 years. The Judge noted that because of the undoubted diagnosis of ID, steps would be taken towards the end of the offender’s anticipated release date under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 for further treatment before release and for ongoing monitoring, supervision and control to the extent necessary following release. Thus preventive detention, though available on the facts, was avoided because the need to protect the public was adequately met by the prison sentence and planned therapeutic intervention upon release.

The Human Rights of Intellectually Disabled Offenders

Human rights, as expressed in the foundational rights instruments,⁵⁷ have always extended to persons with disability.⁵⁸ However, the existence of such rights have not always penetrated sites, where violation of the rights of persons with disability have occurred, or have been insufficiently precise in enlivening the full potential of principal human rights.⁵⁹ Three interconnected reasons have been identified as to why human rights have not been fully realised among persons with disability. These are:

The invisibility of persons with disability within human rights discourse;

The often abstract and general nature of the traditional formulation of some key human rights creating difficulties in their application;

A lack of disability-related experience and expertise in human rights protection and implementation agencies.⁶⁰

These difficulties have had a particular impact on persons with cognitive impairments who engage in concerning behaviours.

In New Zealand, Human Rights Act 1993 established a Human Rights Commission with the responsibility for advocating and promoting respect for, and an understanding and appreciation of, human rights in New Zealand society.⁶¹ Another purpose of the Act is to provide better protection of human rights in New Zealand in accordance with the United Nations Covenants and Conventions on Human Rights.⁶²

One of the currently unresolved questions in New Zealand at the present time concerns the criteria which permit the extension of a CCO under s. 85 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. It is arguable that the absence of statutory criteria to guide the Court as to when a CCO may be extended leaves it open for repeated extensions which could amount to indefinite and arbitrary detention contrary to the International Convention on Civil and Political Rights, and by extension to the United Nations Convention on the Rights of Persons with Disability.

Article 9(1) of the International Convention on Civil and Political Rights states:

Everyone has the right to liberty and the security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

The prohibition of ‘arbitrary’ action is meant to guarantee that ‘even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be…reasonable in the particular circumstances’.⁶³

The International Convention on Civil and Political Rights also affirms the right to be free from discrimination, a right that is also specifically preserved in s. 19 of the New Zealand Bill of Rights Act 1990. In RIDCA Central v VM,⁶⁴ the New Zealand Court of Appeal recognised that the litigation gave rise to ‘significant questions’ under s. 19 of the 1990 Act. Similarly, in L v RIDCA Central 2010,⁶⁵ Mallon J indicated that it must have been the intention of Parliament that the power to extend a CCO was to be guided by the right to be free from discrimination, among other things. This may be seen as supporting an argument that people under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 are discriminated against by reason of their disability, in comparison to non-disabled criminal offenders who pose a similar risk. However, in order to establish a prima facie breach on grounds of discrimination, it is necessary to determine whether compulsory care recipients are treated less favourably than others in a comparable situation on account of a prohibited ground of discrimination. The following principle assists in identifying an appropriate comparator to determine whether compulsory care recipients are treated differently in some relevant way. In Ministry of Health v Atkinson & Ors,⁶⁶ the High Court held:

[T]he most natural and appropriate comparator is likely to be a person in exactly the same circumstances as the complainant but without the feature which is said to have been the prohibited ground.

In the present circumstances, the appropriate comparator is people without an intellectual disability who have committed similar offences. On this basis, the question then is whether the two groups are treated differently in some relevant respect; whether the different treatment is based on a ground of discrimination in the Human Rights Act 1993; and whether the treatment results in disadvantage to the group against whom it is unlawful to discriminate.

In applying this test, it is fundamental to the issues addressed in this article that offenders with an ID are subject to a different regime than those who are not disabled, despite the fact that both have committed similar offences. It would seem to follow, therefore, that both groups are treated differently and that the different treatment is the result of ID, which is a prohibited ground of discrimination. A counter argument to this might be, however, that intellectually disabled people subject to the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 are not in comparable circumstances to either intellectually disabled non-offenders or non-disabled offenders on finite sentences. The purpose of the legislation was, precisely, to ensure that intellectually disabled offenders could be treated differently to those who had been convicted. On this view, the alternative to imprisonment provided by the Criminal Procedure (Mentally Impaired Persons) Act 2003 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is protective not punitive. Because the purpose of a care order is quite different to the general purposes of the criminal justice system, any differences in treatment do not give rise to discrimination.

However, there are serious limitations to this argument which tend to support the view that the legislation is discriminatory. In an earlier analysis of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, I made the following observation:

An earlier draft of the Bill identified the target population as ‘clients’. This was paradoxical. The lexicographical meaning of the word ‘client’ emphasises the relationship of a person who is at the call of a patron. The relationship is essentially advocatory, not coercive. The concept emphasises protection and patronage, but not in the sense that autonomy is subverted. Conceived as ‘client’-focused legislation, the [Intellectual Disability (Compulsory Care)] Bill offered the hope of a remedial solution to the special difficulties presented by intellectually disabled persons to the criminal justice system.…[T]he benign term ‘client’ has been replaced by the expression ‘care recipient’, a term which in the Bill includes both ‘special’ care recipients and care recipients no longer subject to the criminal justice system. This more accurately accords with the coercive regime of compulsory care which is at the heart of this legislation. Indeed, the notion of ‘compulsory care’ should be viewed, not principally as an indicator of coercive therapy, so much as a technical term embracing the notion of official intervention wherever the behaviour of an intellectually disabled offender seriously threatens the health or safety of that person or others. In other words, under this legislation the idea of ‘care’ has little to do with therapeutic concerns and much more to do with the police power of the state to intervene coercively to protect the public from harm.⁶⁷

It would, therefore, be unwise to treat the legislation as anything other than penal legislation, albeit with a protective ‘flavour’, where it is understood that it is directed at people who have been charged with and convicted of an offence. To the extent that it is criminal legislation its use for purely preventive purposes must be fully justified. In the earlier writing, I warned that ‘care will need to be exercised to ensure that care recipients are not unnecessarily detained under the legislation in circumstances where meaningful ‘care’ can no longer be provided—in order simply to achieve the preventive detention of the person’,⁶⁸ a proposition endorsed by the New Zealand Court of Appeal.⁶⁹ Apart from some of the complex questions surrounding the statutory power to extend CCOs, the New Zealand legislation does not self-evidently permit indefinite detention and appears to adequately protect the rights of intellectually disabled offenders. This is confirmed in a 2015 report by the New Zealand Ombudsman in the Ombudsman’s capacity as the National Preventive Mechanism under the UN Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment for prisons, immigration detention facilities, health and disability places of detention, and child and youth residences.⁷⁰ The report did observe, however, that seclusion, though declining in its use in psychiatric hospital inpatient units, remains a cause for concern in health and disability places of detention.⁷¹

Realising Convention Rights

Recent litigation involving offenders with an ID has focused on alleged breaches of particular human rights instruments. For example, the entitlement of every person to a ‘fair and public hearing by an independent and impartial tribunal’, now affirmed in a number of such instruments (see European Convention on Human Rights 1950), has a special application in relation to offenders generally with a mental impairment. Recent writing on the idea of ‘normality’ and the ways the use of that term is capable of depriving people of protection that would otherwise have been entitled to⁷² is a reminder that human liberty is a precious charge that is susceptible to manipulation and, ultimately, institutional abuse. The decision in Brown v Plata ⁷³ reinforces the critical importance of ensuring that people in conditions of custody have access to medical care appropriate to their needs. It is a reminder of the truth that the process of incarceration is an unhealthy one. ‘Incarceration brings about ill-health’.⁷⁴ Similarly, the requirement that ‘no man may be brought to trial on a criminal charge unless and until he is mentally capable of fairly standing his trial’⁷⁵ is a recognition that a minimum level of capacity is essential before a trial can be called fair. This has particular relevance where ID is present, given the obvious dangers of failing to recognise the incidence or degree of impairment that may be relevant to trial capacity.

The United Nations Convention on the Rights of Persons with Disability

More recently, the focus concerning the human rights of persons with ID in the criminal justice system has been on the extent to which states which have ratified the United Nations Convention on the Rights of Persons with Disabilities have put the agreements of the Convention into effect as domestic law.⁷⁶ New Zealand signed the Convention on 30 March 2007 and ratified it on 25 September 2008. Although the Convention does not define ‘disability’, Article I notes that ‘Persons with disabilities include those who have long-term physical, mental intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. This is clearly apt to cover persons with an ID.⁷⁷ However, many contract states have faced challenges with implementing the Convention into their national laws, with the result that in some cases legislation has had to be amended and further developed, if not completely rewritten in order to comply with the principles and goals of the Convention. The difficulty with this is that as long as states parties delay in putting the Convention into effect in domestic law, the more persons with disabilities are at risk of exploitation and unable to experience the benefits of the rights enshrined in the Convention. Therefore, realising the rights of the Convention is a matter of critical importance for persons with disabilities, in particular those with an ID. This is because the coming into force of the Convention on the Rights of Persons with Disability:

represented a fundamental…paradigm shift away from the conceptualization of disability as a social development and health concern to be managed, towards the reconceptualization of persons with disability as bearers of human rights that must be respected, protected and fulfilled.⁷⁸

Within the context of Australian law and practice, it has been argued that developments involving the adoption of the Convention on the Rights of Persons with Disability and its Optional Protocol amounts to a paradigm shift that will require the subordination of treatment and service interventions to human rights–related legal and ethical constraints and affirmative rights–related objectives that are even more explicit. It will mean that clinicians and service providers will need to develop more sophisticated understanding of human rights principles with a corresponding ability to apply the principles to the circumstances of persons with disability.⁷⁹

The same analysis will apply to health workers and service providers working within penal institutions and forensic care facilities, to ensure that the full panoply of rights expressed in the Convention on the Rights of Persons with Disability are acknowledged and, to the greatest extent possible, given effect to.

Conclusion

Offenders with an ID are extremely vulnerable to exploitation, abuse and misunderstanding within penal and other carceral environments. From the time of first encounter with police when being cautioned or read their ‘rights’, through the complex trial and pre-trial processes, up to sentencing and/or disposition, their likely suggestibility and tendency to acquiesce with perceived ‘authority’ figures makes them much more likely to make false confessions and enter guilty pleas to criminal charges. And once incarcerated people with an ID are disadvantaged by the problems they may face in understanding written information and filling in forms relevant to normal existence as an inmate (e.g. in ordering meals, requesting visits and making a doctor’s appointment). Furthermore, they are more likely to be depressed, experience bullying and/or sexual abuse by other inmates and to be segregated.⁸⁰

Overall, evidence suggests that people with impaired intellectual functioning present with ‘multiple and complex physical and/or mental health issues’.⁸¹ Inevitably, these issues place further pressure on a prison healthcare system that is already under pressure and struggling to cope with an ageing and expanding prison population.⁸²

While international conventions, like the United Nations Convention on the Rights of Persons with Disability, and local mental health and capacity legislation may represent a paradigm shift in the identification of persons with disability within the human rights discourse, the fact that significant numbers of persons with ID are still contained in harsh carceral environments worldwide suggests that their lived experience is often inconsistent with national and international policies and best practice.

The New Zealand experience of enacting specialised legislation to manage the care of offenders with an ID has generally proven to be a positive development. However, the emergence of a new cohort of ‘New Care Recipients’, often juveniles with no history of ID who have transferred from the youth justice system to the ID regime, has revealed a problem of ‘net-widening’, as increasing numbers of these people end up in compulsory care.

At this stage, it is not clear that New Zealand has experienced the same problems as have been identified in the UK regarding the lack of skill among prison staff in awareness and managing the care of persons with learning disabilities. It has been found that many prison staff were unaware of how to access appropriate specialist services and, of more concern, may have deliberately avoided identifying a person with special needs, because of the statutory responsibilities this would generate which⁸³ prison staff felt unable to fulfil.⁸⁴

Clearly, there are many problem areas that need to be addressed as a matter of urgency if offenders with an ID are to experience the positive benefits as the recipients of rights under the United Nations Convention on the Rights of Persons with Disability and other rights instruments.

It is commonly said that wherever possible such person should be diverted from the prison system to other criminal justice ‘alternatives’. What these alternatives are is less than clear. However, what is clear is that treatment for individuals with ID who offend and are convicted, should be geared towards acknowledging issues of limited socialisation, impulsivity, poor learning skills, low self-esteem, limited socialisation and lack of education.

Various treatments and interventions should also be combined with tailored offence-specific approaches. This might mean, in relation to sexual offending, for example, looking at issues of attachment, intimacy, sexual knowledge and experience, emotional loneliness and so on. One interesting approach for the treatment of sex offenders involved the use of a mindfulness-based procedure to reduce deviant sexual arousal.⁸⁵ Such programmes might also include anger management and other forms of social intervention.⁸⁶

Simply identifying individuals with ID in the criminal justice system is insufficient to address the particular difficulties they face. It is now clear that because of their very specific vulnerabilities much more work needs to be done on preventive interventions and, where necessary, appropriate law reform.⁸⁷ Police, lawyers, judges and corrections staff all require ongoing professional education to understand the nature of ID and the available diversionary programmes, where they exist. As a leading commentator, Dr Hayes, has observed:

Early identification of the presence of disability can provide a lever, however, for increased awareness of the challenges of meeting the needs of this group and obtaining more resources in specialist areas within the criminal justice system. Equally importantly, recognition of the over-representation of this group in the justice system can provide impetus for the provision of more and better programmes by the other societal institutions whose roles are to support and assist people with intellectual disabilities, with the aim of preventing entry into the justice system.⁸⁸

It is to be hoped that such programmes, together with appropriate intervention studies, will be instrumental in addressing the problem of violence and traumatic victimisation that this cohort is often subject to, especially in correctional settings, and ensuring a better quality of life, reinforced by a strong rights framework, for this group of highly vulnerable offenders.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.