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.