The Court System

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Stephen Kealy

This issue of Frontline has as its theme forensic issues in disability. All articles have detailed references which are not included for space reasons, but they are available from the Editor on request. People with disabilities commit fewer crimes than able-bodied people, but they are disproportionally represented in higher numbers within the custodial system. Many of the topics discussed in the articles here are not often openly aired, but attention does need to be paid to them, and, in particular, how as a society we balance competing rights.

Thankfully most of our readership never have the occasion to attend court. Regardless of the reason for court attendance, many people find it daunting and, often, intimidating. It can also be confusing and disorienting. For vulnerable people, the court experience can present all those feelings, compounded by an inability to follow proceedings in a way that is meaningful to them.

Leslie Cuthbert, informed by considerable experience, highlights in his article many of the issues that arise for people with an intellectual disability in the judicial system. The time from the initial Garda contact, to appearance in court, can be confusing enough for the most able bodied person—what must it be like for the person with an intellectual disability? People with an intellectual disability are significantly disadvantaged vis a vis able-bodied people in spite of good, responsible legal representation.

People with an intellectual disability do commit serious crimes, not only against property, but also against persons. There is, thankfully, a growing awareness within the gardaí and the judiciary of the need to gain an understanding of the person with an intellectual disability by exploring the underlying reasons for their actions, and, above all else, to ensure that they receive a fair hearing, not only in respect of any crime, but for any reason that brings them to the attention of the court.

Persons with an intellectual disability have to contend with myths about their disability, not only in criminal proceedings, but now (more frequently) in child care proceedings. For example, can mothers and fathers with an intellectual disability be effective parents? They often face the prejudice of the myth, sometimes firmly held by HSE professionals, that persons with an intellectual disability cannot parent or, indeed, do not experience the same depth of feelings as other parents, when their son or daughter is taken from them. Professionals often do not engage with the question of how the person with an intellectual disability can be actively supported in their parenting role.

When people were asked to contribute to this issue of Frontline, many of them identified an increasing number of people with an intellectual disability coming before the courts. There is a distinct possibility that as the delivery system of supports for them changes—driven in part by financial constraints, but also by a desire to foster greater independence and skill development—a greater number of them will come before the courts.

Yes, some people with an intellectual disability do commit serious crimes. In those cases, is our custodial system fit for purpose? There is a need for specialist places for detention, not Dundrum Central Mental Hospital, but rather a place that actively engages with the person with an intellectual disability and that minimises risks to them as well as to the general public. Greater awareness their needs within the judicial system will also lessen the possibility of wrongful conviction and incarceration, perhaps because of their willingness to please, their confusion, or their inability to understand what is being asked and the implications for their personal liberty.

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