For 12 years a gap in the law saw people with intellectual disabilities convicted of crimes and in some cases sent to prison because there was no 'unfit to stand trial' provision for them. Years later some have had their slates wiped, but it’s unknown how many fell through the cracks.
The Court of Appeal has ruled a man with an IQ of about 50 will have his final three convictions, from a starting total of 75, wiped from his record.
The man’s convictions spanned 1995 to 2015 and were mainly low-level offences. Most of these were quashed in the High Court last year, apart from three aggravated robbery convictions, which saw him sentenced to just over eight years in jail.
“Given Mr G’s clear and permanent impairments in key areas of cognitive function which are important for making choices about plea and the defence of a charge at trial ... we are satisfied that Mr G was not fit to plead or stand trial on any of the three charges,” the judgment read
“Our conclusion is ... that Mr G ‘was not fit to either plead or stand trial at any point in time in the past’. For these reasons, a miscarriage of justice has occurred."
Between 1992 and 2004, intellectually disabled offenders were statutorily precluded from being found unfit to stand trial under the Criminal Justice Act.
Prior to 1992, intellectually disabled offenders came under the “under disability” provisions of the Criminal Justice Act. While this meant they could be deemed unfit to stand trial, it also meant some intellectually disabled people were being detained in long-term psychiatric facilities because their condition was untreatable.
The Mental Health (Compulsory Assessment and Treatment) Act of 1992 aimed to rectify this problem and created a new definition of mentally disordered, that excluded those with intellectual disabilities.
One impact of this new definition was that these individuals could no longer be found unfit to stand trial.
Public Defence Service lawyer Genevive Vear said the criminal justice impact of this change appeared to be a “complete oversight” by lawmakers.
“So completely unintentional as far as we can tell from all of the contemporaneous materials, and done for a positive reason. It wasn't intended in any way to undermine the rights of the intellectually disabled, if anything, it was done to try and protect their civil liberties.
“It just, in practice, didn't quite play out that way.”
Vear was Mr G’s Court of Appeal case lawyer alongside Hannah Croucher - also from the Public Defence Service.
Croucher was instrumental in appealing his previous 72 convictions in the High Court last year.
Vear says finding these people is the hardest part. There are no flags in the system and it’s unknown how many were affected.
So far, the only way they’ve been identified is because they continue to come through the justice system.
“And, for a number of them, they're not being discovered until some way through the court process as well. Say when reports are ordered for sentencing or other purposes,” Vear said.
“And there will be trigger words, like they’ve spent time in a facility or they've had assistance in years gone by which triggers the courts or the lawyers to look further into it ... but somebody has to ask for the information or know what to look for.”
She said many would continue to come in and out of the system without any flags raised at all.
“A lot of these individuals, they're facing very low-level charges for the majority, nuisance type offending, so they're not even necessarily getting assigned legal counsel the majority of the time.
“A lot of these convictions have come about by them attending court and seeing a duty solicitor. Duty solicitors get such a limited period of time to speak to people and deal with such a volume of cases, that it's very easy for people to fall through the gaps as a result. It's not an indictment on duty lawyers, that's more a product of the volume of material going through the system.”
“So the self-fulfilling prophecy continues that because a person was found fit in the gap years – potentially incorrectly - later assumptions are made about their capacity to participate.” – Genevive Vear, lawyer
Another factor was intellectually disabled individuals' rote learning the system to some extent, masking the fact they were unlikely to understand what was actually happening.
“What we invariably find with these individuals is that they're very good at giving the very basic responses ... they know how to parrot it back. They hear terms like ‘I want home D’, do they know what home D actually means? Do they know that means home detention with a bracelet 24 hours a day?
“We've got a lot of slang and terms that are used within the court system and a non-impaired offender will use a lot of that slang and as a result, lawyers get used to using it with their clients.
“And as a result, these persons who often don't want to be viewed as impaired, they want to be perceived as competent and able to participate so they will use that terminology.”
The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 requires an IQ of less than 70 (alongside other factors) for a diagnosis of intellectual disability.
This covers about 2 percent of the population. However, despite the low IQ, many of these people, under today’s law, will still be found fit to stand trial for other reasons.
“The cases we're talking about are those with much more significant issues,” Vear said.
“It’s more like the 0.1 percent. So one in every 1000. So we're not talking a huge number of people that fall within this when you're looking statistically.”
A self-fulfilling prophecy
Vear said breaking the cycle of conviction was difficult.
“What we are seeing with a lot of these cases is yes, they start in the gap years [1992-2004] but it perpetuates into later years because this perception arises that once a person has a criminal history then they must be able to participate, because they've been through it before.
“So the self-fulfilling prophecy continues that because a person was found fit in the gap years - potentially incorrectly - later assumptions are made about their capacity to participate.”
Appeals were also difficult, Vear said, because technically the law had been followed.
“These appeals have to be decided as the law stood at the time and that's caused some difficulties as to how they've been approached because technically, as the law was written, the decisions made by the court were legally correct.
“So what's been argued and has been accepted, is that the courts, at the time, ought to have looked at using their “inherent powers” to stay (end) proceedings. The courts have these powers that are not written down, they are not legislative powers, they are inherent powers to control their own court processes and prevent miscarriages of justice.”
“These people need a voice and once we've identified them, there's so much you can do and should do.” – Genevive Vear
In Mr G’s case, a number of reports on his fitness to stand trial were conducted at the time.
A 1993 assessment found his IQ was in the range of 43 and 53. A 1996 review by a psychiatrist noted: “It would appear that Mr G is not fit to plead as he did not really understand the concept of guilty and not guilty nor did he understand the court process and I feel he was unable to instruct his counsel ... It is unlikely that his condition will improve to any significant extent and I believe that Mr G will always remain unfit to plead.”
A year later, ahead of an aggravated robbery charge, another psychiatrist wrote Mr G was “suffering from mental retardation”.
However, despite these reports, under the law there was no provision for Mr G to be deemed unfit to stand trial, and he was convicted and sentenced.
A new report in 2020 for the purposes of his appeal noted due to the number of times he had been before the courts, there was an element of rote learning that made it seem as if he was more cognitively aware than perhaps he was.
“Mr G’s fitness has plainly been an issue from the outset of his engagement in the criminal justice system. The legislative framework in existence prior to 2004 has shaped some of the opinions in that regard,” the Court of Appeal judgment said.
Righting the wrongs
It took Mr G four years to secure a miscarriage of justice from when the Public Defence Service were assigned his case.
These are not short or easy processes.
“Identifying these cases and successfully arguing them involves trying to track down materials that are, generally, 20 to 30 years old. The first case that went before the Court of Appeal in relation to a claim of intellectual disability was a 2013 decision where an individual was trying to overturn some convictions from the 80s and 90s and part of the issue in that case... was that there was no materials from those years.
“And the court was very concerned about not being able to retrospectively assess fitness as there were no contemporaneous materials.”
So what does it mean to have a miscarriage of justice ruling?
For Mr G it did not involve headlines in the media or compensation for time spent in prison.
But, that doesn’t mean it’s not worth doing.
“Inevitably it does have an impact upon their daily lives that having a criminal conviction can impact upon you.”
For Vear, she sees it as a circuit breaker. Finally a flag in the system that should have been there decades ago.
“The issues are actually being recognised from the outset, those presumptions aren't being made about them, [just] because they have a history. And they're being appropriately dealt with through the court system, so they're not going straight into prison.
“These decisions don't take away some of the criminogenic issues that are present. These vulnerable individuals do have difficulties interacting with the world. Particularly if for decades on end, they haven't had the appropriate support.”
She said for families it was also a relief, but added for many of these people that wasn’t a support network available to them.
Ultimately though, Vear says it’s simply the right thing to do.
“These people need a voice and once we've identified them, there's so much you can do and should do.”
