Lawyers play a vital role in ensuring procedural fairness and upholding the rights of clients with cognitive impairments in the criminal justice system. Knowing how to respond to disability and communicate disability needs in court will improve your practice and the outcomes for your clients.
The five steps below will help you gather key information to prepare a comprehensive plea for a client with disability.
Step 1. Be a disability-aware practitioner
Step 2. Find out your client’s communication and meeting preferences
Step 3. Identify support services
Step 4. Gather key information to support the plea
Step 5. Use person-centred sentencing submissions
Step 6. Other considerations
The criminal justice system is often the frontline response to people who have fallen through the cracks of health and disability service systems. Many cognitive disabilities are hidden. People with acquired brain injuries, autism spectrum disorder and mild intellectual disabilities often cycle through the criminal justice system with their support needs being overlooked.
This website has information to help you recognise the signs of disability and find out about the available support services.
Consider learning more about the human rights model of disability to advance the rights of your clients with disability. Recognising the signs of disability is a way of protecting and upholding the rights of individuals in the criminal justice system. It is also the right of that individual not to accept support or assistance.
Understanding the communication preferences of a person with disability is an important first step to ensuring effective court outcomes and procedural fairness. Understanding the communication preferences of a person with disability is an important first step to ensuring effective court outcomes and procedural fairness.
Make it a part of your practice to check the communication preferences of your clients. For example, you could ask some of the following questions:
Read the guide to Effective communication with people with disability and Scope’s Building Capacity guide for legal professionals.
The Preparing for court: client form (PDF 236KB) has fields for clients to state their communication preferences and questions designed to uncover signs of disability. Download, print and give the form to your client and suggest that they complete it with another person such as a carer or support worker.
Communication preferences – how your client prefers to receive information, as part of establishing respectful communications
Living and financial arrangements – where they are living, how they are supporting themselves and others financially, and if they are receiving any pensions or benefits
Care and support – records of injuries and accidents affecting the head or spinal area, support and treatment history, disability diagnosis and reports, NDIS plan information, and details of their GP
Further information – additional information your client wants you to know to help their case, and the contact information of anyone who helped them complete the form
Additional questions – specific queries or concerns your client wants answered
Where possible, ask your client where and what time they would like to meet. Being in a familiar location helps people feel at ease, making communication easier. Be mindful that a person with disability may have routines, medication or travel needs that rule out certain times of the day.
To help your clients remember, it is a good idea to confirm the following in writing:
Knowing what submissions and materials to put before the court starts with learning about your client’s existing support network and their support needs. Supporting Justice has information on the support services that are available to people with disability in the criminal justice system. Knowing what submissions and materials to put before the court starts with learning about your client’s existing support network and their support needs. Supporting Justice has information on the support services that are available to people with disability in the criminal justice system.
The disability service landscape is changing with the roll-out of the NDIS.
Criminal lawyers play an important role in promoting the opportunities for support provided by the scheme. The NDIS funded services could provide assistance with:
The roll-out of the NDIS has created challenges, particularly for people with complex support needs who are in contact with the justice system. In addition to promoting the support available through the NDIS, lawyers play a central role in identifying those individuals who the NDIS is failing, and holding service providers to account.
For more information about the NDIS service landscape:
Get reports for court has information on getting a specialist report or access to medical and diagnostic reports to support a plea.
Also ask support workers or family members, carers or others supporting your client to write a support letter for the court. Refer them to the Supporting Justice guide to writing a support letter.
Consider the communications needs of your client and their right to participate meaningfully in the court process.
Specialist courts, including the problem-solving Assessment and Referral Court (ARC) and the Drug Court are gradually being rolled out across Victoria’s summary jurisdiction.
Victoria's specialist courts may provide a better environment for a client when mainstream sentencing courts have not been able to respond to the client’s disability needs. See, for example, Tom's experience in the Supporting Justice Personal stories.
The Judicial College of Victoria keeps updated summaries of sentencing case law relevant to people with mental ill-health and disability in the Victorian Sentencing Manual and the Disability Access Benchbook, which has information for Judicial Officer's on disability considerations in the court room.
Supporting Justice © Centre for Innovative Justice, RMIT University, 2019
Questions or feedback: contact@supportingjustice.net
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