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Want to contribute to law reform for disadvantaged youth?

The operations of the criminal justice system have an important bearing on the health and wellbeing of many people, particularly those who are disadvantaged.

The piece below, by two authors from the NSW Law Reform Commission, suggests there is room to improve the system’s interactions with young people with cognitive and mental health problems. If you have ideas for how this might be achieved, the Commission would like to hear from you.

Professor Hilary Astor and Abi Paramaguru write:

Approximately 87% of young people in custody have at least one psychological disorder. Surveys suggest that nearly 45% of young people in custody have an IQ of 79 or less, which is consistent with intellectual disability or borderline intellectual disability.

However, this is just the tip of the iceberg. Many more young people with cognitive and mental health impairments are entangled in the criminal justice system who are not actually in custody.

This raises the question – is the criminal justice system appropriately equipped to deal with the needs of young people with cognitive and mental health impairments?

These questions are being asked by the NSW Law Reform Commission in a recently released consultation paper on young people with cognitive and mental health impairments in the criminal justice system (available here).

This paper looks at the issues that face some of the most vulnerable people in our society when they navigate the criminal justice system in NSW. Young people with cognitive and mental health impairments are different from adults and we need to think about whether the laws in this area are fair and up-to-date with current scientific and medical knowledge.

The consultation paper considers various factors that may impact on the over-representation of young people with cognitive and mental health impairments in the criminal justice system.

For example, the application of the Bail Act to young people has been the subject of concern for many years now. More than half of young people in custody are held on remand. Young people with cognitive and mental health impairments may encounter particular difficulties complying with numerous and prescriptive bail conditions. There may be other factors that hamper access to bail for this group – lack of support services, reduced community ties, lack of suitable accommodation or the existence of prior convictions where offending behaviour was associated with an impairment.

The majority of young people detained for breaching bail conditions have not committed any further offence. The most common breaches are failure to comply with a curfew and not being in the company of a parent.

Yet, the impact of being refused bail and being detained may have severe consequences for vulnerable people. The stress of incarceration can exacerbate mental impairments. It can disrupt education, disconnect the young person from their family and community and may, in certain circumstances, impact on the content and severity of their sentence.

Many of the young people remanded in custody do not go on to receive custodial sentences.

It is important that police and courts are able to craft bail conditions which young people with cognitive and mental health impairments are able to comply with and understand. The power to grant bail can be a means of diverting people out of the criminal justice system and into programs for treatments as well as support services. If appropriately framed conditions are not available, or courts and police do not apply appropriate conditions, there is a danger that a young person with cognitive and mental health impairments will be remanded in custody in circumstances where feasible and effective alternatives to detention are available.

The Commission is seeking views on how to reform the application of the Bail Act to young people with cognitive and mental health impairments.

The Commission also considers issues such as how to divert these offenders away from the criminal justice system and how certain aspects of the system, such as the defence of mental illness and sentencing, apply to young people with mental health and cognitive impairments.

If you would like to contribute to important policy reform on the issue of young people with cognitive and mental health impairments in the criminal justice system, please make a submission to the NSW Law Reform Commission by 4 February 2011.

Submissions may be made to GPO Box 5199, Sydney NSW 2001 or nsw_lrc@agd.nsw.gov.au.

This is the fifth and final consultation paper in the Commission’s broader review of people with cognitive and mental health impairments in the criminal justice system. All of the consultation papers for this review are available on the Commission’s website.

• Professor Hilary Astor is lead Commissioner on the Commission’s review of people with cognitive and mental health impairments in the criminal justice system. Abi Paramaguru is Law Reform Project Officer at the Commission.

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