Limits of disability human rights in a criminal justice context

The CRl’D (UN, 2008)^[1] is of limited use in relation to court diversion. The CRl’D foregrounds equality of disabled people in society, against a historical backdrop of disability as ‘legitimate ground for the denial or restriction of human rights’ (UN, 2008: para 9, see also para 8). One effect of the CRl’D has been that laws for disability-specific coercive intervention (which, by their very scope, can only ever apply to disabled people) are understood as discriminatory’ and, in turn, as violating rights to liberty and security of person (Art 14), integrity of person (Art 17) and legal capacity (Art 12).

Since coming into force in 2008, the CRl’D has increasingly' become a routine point of reference for scholars, law reformers and advocates for assessing the impact of laws on disabled people, including laws for disability-specific coercive interventions (such as mental health laws, forensic mental health laws, guardianship laws and sterilisation) (Minkowitz, 2007; 2010; 2014; 2017; Steele, 2016; 2017d; see also Plumb, 2015). Thus, it is important to consider the CRl’D in the context of laws on court diversion. This is so even though the CRl’D is not legally enforceable in Anglo jurisdictions and has had little to no impact on criminal legal reform (see Gooding & O’Mahony, 2016: p. 124). I am not interested here in the CRl’D as a legal document but, rather, as a political document which can provide a prism through which to see anew the injustices of court diversion.

By drawing on the CRl’D and relatedly' its jurisprudence and work of the UN Disability Committee, I will show that the CRl’D is useful in critiquing the dis-ability-specific aspects of court diversion, notably in highlighting the discrimination and violence of coerced disability and mental health services. Yet, the CRl’D is ultimately' of only limited use because it does not provide the tools to grapple with the full complexities and contradictions of disability-specific coercive intervention in a criminal legal context And in relation to criminalised disabled people. I will suggest that the work of the UN Disability Committee and jurisprudence on the CRl’D has predominantly' focused on ‘pure’ disability discrimination and has not grappled with interlocking oppression and settler colonialism. Moreover, while the work of the UN Disability Committee and CRl’D jurisprudence recognise the policing and incarceration of criminalised disabled people as a problem, these have not yet considered how to make sense of criminal incarceration itself as a human rights violation and to identify structural and sy'stemic solutions.

I approach this discussion by reference first to the work of the UN Disability Committee on court diversion. I will then discuss the work of the UN Disability Committee and CRl’D jurisprudence on disability criminal justice by' reference to a select number of CRl’D Articles. Finally, I turn to the UN Disability Committee’s decision in Noble v Australia, which illustrates many of the limitations identified.

CRPD and court diversion

The work of the UN Disability Committee in relation to court diversion confirms the limited utility of the CRPD in the context of court diversion. The UN Disability Committee has only engaged with court diversion on a few occasions in its jurisprudence, principally in the context of Article 14 on liberty and security of person. Article 14 requires that States Parties ensure that disabled people, on an equal basis with others, ‘[e]njoy the right to liberty and security of person’ and ‘[a]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty’. The UN Disability Committee stated in its 2015 Guidelines on Article 14 of the CRPD:

The Committee has stated that deprivation of liberty in criminal proceedings should only apply as a matter of last resort and when other diversion programmes, including restorative justice, are insufficient to deter future crime. Diversion programmes must not involve a transfer to mental health commitment regimes or require an individual to participate in mental health sendees; such sendees should be provided on the basis of the individual’s free and informed consent.

(UN Disability Committee, 2015: para 21)

This statement by the UN Disability Committee brings together two separate comments made in earlier Concluding Observations in relation to New Zealand (the first sentence) (UN Disability Committee, 2014a: para 34) and Australia (the second sentence) (UN Disability Committee, 2016: para 29). The second sentence of the statement suggests that court diversion will breach Article 14 when it involves coercive engagement with disability and mental health sendees, irrespective of whether detention is involved. The first sentence is directed more towards incarceration and positions diversion as an alternative to incarceration (although the reference to restorative justice suggests that the diversion mentioned here is not disability-specific diversion schemes).

Recently, the Special Rapporteur on the rights of persons with disabilities identified ‘detention as a result of diversion from the criminal justice system’ as a ‘common form’ of disability-specific deprivation of liberty (UN Special Rapporteur, 2019: para 14, see also para 46). She went on to elaborate:

[I]n these facilities, they will have less access to procedural guarantees than others in the criminal justice system and be subjected to forced interventions, solitary confinement and restraint. In such facilities, they are also subject to stricter regimes, and have less access to recreational, educational and health services than those available in mainstream prisons, as well as fewer procedural guarantees.

(UN Special Rapporteur, 2019: para 20)

These comments suggest that court diversion that involves detention in the disability and mental health system, such as in the UK and New Zealand, breaches Article 14.

Taken together, these two statements suggest that court diversion is unjust when it involves detention or coercion through disability' and mental health services because this involves coercion, and because individuals have less procedural protections than in relation to criminal legal intervention. The problem is one of discrimination along the lines of disability'.

Scholars who have considered court diversion in the context of the CRI’D have engaged with the CRI’D in an instrumental fashion and argued that court diversion can comply if its coercive dimensions are removed, if it is focused on provision of support in the community and if it is more effectively' integrated into mainstream court process and settings (Ferrazzi et al., 2013: pp. 53-54; O’Mahony, 2013: p. 149; Perlin, 2013). Unlike these scholars, 1 have strong reservations about the possibility' of a ‘CRI’D’ compliant court diversion and about the ultimate utility of the CRI’D in addressing the problems I have identified with court diversion. In order to make these arguments, I now turn to the CRI’D and disability' criminal justice more broadly.

• [1] For the sake of clarity’ and brevity’, the UN Convention on the Rights of People with Disabilities (UN, 2008) will be referred to here as the CRPD, and the UN Committee on the Rights of People with Disabilities will be referred to as the UN Disability' Committee.