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Supporting Accused Persons with Cognitive Disabilities to Participate in Criminal Proceedings in Australia: Avoiding the Pitfalls of Un tness to Stand Trial Laws

Piers Gooding is Postdoctoral Research Fellow at the Melbourne Social Equity Institute and the Melbourne Law School, University of Melbourne.

Anna Arstein-Kerslake is an academic at Melbourne Law School and the Convenor of the Disability Research Initiative at the University of Melbourne.

Sarah Mercer is a current Lawyer at Victoria Legal Aid and a former Research Assistant at the Melbourne Social Equity Institute and the Disability Research Initiative.

Bernadette McSherry is the Foundation Director of the Melbourne Social Equity Institute at the University of Melbourne and an Adjunct Professor in the Melbourne Law School and the Faculty of Law, Monash University.

In the 10 years since Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the issue of the indefinite detention of persons with cognitive disabilities found unfit to stand trial has received considerable attention. Concerns have been raised by national media, law reform bodies and United Nations human rights agencies. Yet there remain few examples of formal change to unfitness to stand trial laws in Australia. This article focuses on the role of procedural accommodations in meeting CRPD requirements, and other accessibility measures to ensure accused persons with cognitive disabilities are able to take part in criminal proceedings on an equal basis with others. It examines support measures that appear in existing statute and case law within Australia and considers the need to develop new forms of support.

(2017) 35(2) Law in Context p64

   
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