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

Date01 February 2019
DOI10.1177/0022018318814360
Published date01 February 2019
Subject MatterArticles
Article
Protecting the Interests of
Vulnerable Defendants in the
Criminal Justice System: The
New Zealand Experience
Warren Brookbanks
Auckland University of Technology, New Zealand
Abstract
Approaches to the management of people with intellectual disabilities (IDs) vary across jur-
isdictions. 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 anID. 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 officialresponses to,
offenders with special needs. In New Zealand, the emerging problem of how to manage intel-
lectually 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 disen-
franchised 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 healthor penal systems. The compulsory care
regime has proveneffective in addressing the needs ofintellectually disabled offenders,increasing
numbers of whom are young people, who would have great difficulty coping in a prison envi-
ronment. 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
Corresponding author:
Warren Brookbanks,Faculty of Law, Auckland Universityof Technology, 120 Mayoral Drive,WY612, Auckland 1010, New Zealand.
E-mail: warren.brookbanks@aut.ac.nz
The Journal of Criminal Law
2019, Vol. 83(1) 55–70
ªThe Author(s) 2018
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DOI: 10.1177/0022018318814360
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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 appro-
priate 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 bein g 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 (Com-
pulsory 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 discrim-
ination 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
1. See M Hellenbach, T Karatzias and M Brown, ‘Intellectual Disabilities among Prisoners: Prevalence and Mental and Physical
Health Comorbidities’ (2017) 30 Journal of Applied Research in Intellectual Disabilities 230–41.
2. T Smith, EA Polloway, JR Patton and JF Beyer, ‘Individuals with Intellectual and Developmental Disabilities in the Criminal
Justice System and Implications for Transition Planning’ (2008) 43(4) Education and Training in Developmental Disabilities
421, 422.
56 The Journal of Criminal Law 83(1)

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