SOLOMON ISLANDS LAW REFORM COMMISSION

SOLOMON ISLANDS LAW REFORM COMMISSION MENTAL IMPAIRMENT, CRIMINAL RESPONSIBILITY AND FITNESS TO PLEAD CONSULTATION PAPER

THE SOLOMON ISLANDS LAW REFORM COMMISSION HONIARA, SOLOMON ISLANDS MENTAL IMPAIRMENT, CRIMINAL RESPONSIBILTY AND FITNESS TO PLEAD Cnsultatin Paper December 2010

5 Call fr Submissins The LRC invites yur cmments and submissins n this cnsultatin paper. A submissin is yur views and pinins abut hw the law shuld be changed. A submissin can be written, such as a letter r email, r verbal, such as a telephne cnversatin r a face t face meeting. A submissin can be shrt r lng, it can be frmal r simply dt pints r ntes. Hw t Make a Submissin Yu can write a submissin, send an email r fax, r ring up the LRC r cme t ur ffice and speak with ne f ur staff. Yu can als cme t cnsultatin meetings held by the LRC. The LRC is lcated at Kalala Haus, Hniara, behind the High Curt. PO Bx 1534 Hniara Phne: (+677) 38773 Fax: (+677) 38760 Email: lawrefrm@lrc.gv.sb Website: http://www.paclii.rg/gateway/lrc/silrc/index.shtml. This paper is available frm ur ffice r ur website. The deadline fr submissins fr this reference is 31 Octber 2011. Law refrm is a prcess f changing the law that requires public participatin. Cmments and submissins sent t the LRC will nt be cnfidential unless yu clearly request that infrmatin be kept cnfidential.

7 Slmn Islands Law Refrm Cmmissin Terms f Reference WHEREAS the Penal Cde and the Criminal Prcedure Cde are in need f refrm after many years f peratin in Slmn Islands. NOW THEREFORE in exercise f the pwers cnferred by sectin 5(1) f the Law Refrm Cmmissin Act, 1994, I OLIVER ZAPO, Minister f Justice and Legal Affairs hereby refer the Law Refrm Cmmissin the fllwing T enquire and reprt t me n The Review f the Penal Cde and the Criminal Prcedure Cde; Refrms necessary t reflect the current needs f the peple f Slmn Islands. Dated at Hniara 1 st day f May 1995 NB: Explanatin: The criminal law system in Slmn Islands has nw been in peratin fr many years. Develpments in new crimes, their nature and cmplexity have made it necessary t verhaul criminal law in general t keep it abreast with the mdern needs f Slmn Islands.

9 Slmn Islands Law Refrm Cmmissin Slmn Islands Law Refrm Cmmissin The Slmn Islands Law Refrm Cmmissin (LRC) is a statutry bdy established under the Law Refrm Cmmissin Act 1994. The LRC is headed by the Chairman and has fur part-time Cmmissiners wh are appinted by the Minister fr Justice and Legal Affairs. Chairpersn Part- time Cmmissiners pst vacant Mr Waeta Ben Tabusasi C.S.I., S.I.M Mrs Sarah Dyer Rt Reverend Philemn Riti O.B.E Mr Gabriel Suri Research Manager Legal Officers Kate Halliday Philip Kanairara Kathleen Khata Daniel A. Suluia Lauren Banning Officer Manager Administratin Assistant Prject Team Matilda Dani vacant Daniel A. Suluia Kate Halliday Acknwledgments The SILRC wuld like t thank the Cmmissiner fr Crrectinal Services, the Public Slicitr s Office and Dr Paul Ortala, psychiatrist, fr respnding psitively t ur initial invitatin fr the submissin f helpful infrmatin that cntributes much twards the writing f this paper.

11 Table f Cntents Table f Cntents Terms f Reference 7 Acknwledgments 9 Abbreviatins and Terminlgy 13 Chapter 1 - Intrductin 15 Backgrund 15 Research Prcess 16 Overview f this Paper 17 Chapter 2 - Current Law 19 Insanity as a defence 19 Fitness t Plead 20 Unfit t plead due t unsundness f mind 21 Accused des nt understand prceedings but he r she is nt insane 22 Cases tried by a Magistrates Curt 23 Cases which are subject t a preliminary investigatin by a Magistrates Curt and trial by the High Curt 24 Chapter 3 - Human Rights Standards 25 The Cnstitutin 25 Fair trial within a reasnable time 25 Right t liberty 27 Analysis 28 Internatinal law 30 Cnventin n the Rights f Peple with Disabilities (UNPRPD) 30 Cnventin n the Rights f the Child 32 Chapter 4 - Issues and Optins fr Refrm 33 Indefinite, lengthy, inapprpriate r unlawful detentin 33 Case study: JH s case 35 Optins fr refrm 36 Special hearing after a fitness hearing 38 Special hearing befre a fitness hearing 39 Use f limiting terms 40 Detentin as a last resrt, ptins ther than detentin 41 Nn-custdial supervisin rders r cmmunity treatment rders 43 Peridic Reviews 44 Evidence abut mental impairment and fitness t plead 46 Rights f appeal 47 Other jurisdictins 48 Criteria fr determining fitness t plead 49 Other jurisdictins 50

12 Mental Impairment Cnsultatin Paper Lack f clarity arund decisin making and respnsibility 52 Other jurisdictins 52 Curt pwer t rder assessments 54 Scpe and applicatin f the insanity defence 56 Disease f the mind 56 Knwledge f wrng 58 Inability t cntrl actins 59 Outcme f successful defence f insanity 60 Other jurisdictins 61 Old-fashined (archaic) terminlgy 62

13 Abbreviatins and Terminlgy Abbreviatins and Terminlgy CRC: Cnventin n the Rights f the Child ECHR: Eurpean Curt f Human Rights LRC: Slmn Islands Law Refrm Cmmissin UNCRPD: with Disabilities United Natins Cnventin n the Rights f Persns NT: NSW: NZ: Vic: UK: Nrthern Territry New Suth Wales New Zealand Victria United Kingdm Mental impairment: In this paper we use the term mental impairment t refer t a wide range f cnditins that can affect the capacity f a persn t reasn, understand and cmmunicate. It includes mental illness, disease f the mind as well as intellectual disability, dementia and brain damage. Fitness t plead: Special hearing: Refers t the capacity f a persn charged with a criminal ffence t participate in the curt prceedings. An inquiry cnducted by a curt t determine whether a persn charged with a criminal ffence, wh is nt fit t plead, cmmitted the physical elements f the ffence. In Slmn Islands it is an inquiry t determine whether there is enugh evidence t supprt a finding f guilt fr the ffence.

15 Intrductin Chapter 1 - Intrductin Backgrund 1.1 The Slmn Islands Law Refrm Cmmissin (LRC) has a reference t review the Penal Cde and Criminal Prcedure Cde. This cnsultatin paper addresses the prvisins in the Penal Cde and Criminal Prcedure Cde n the defence f insanity and the law that gverns the prcesses fr peple wh are nt fit t plead r stand trial. 1.2 The wrk f the LRC is guided by the fllwing bjectives: The need t mdernise and simplify the law, eliminate defects in the law, intrduce new and mre effective methds fr administratin f justice; cmpliance with the Cnstitutin, and under the terms f reference fr the review f the Penal Cde and Criminal Prcedure Cde the LRC must address develpments in new crimes, and make the Penal Cde respnsive t the mdern needs f Slmn Islands. 1.3 Any refrm in this area must take accunt f the resurces fr peple with mental impairment in Slmn Islands. Accrding t ur cnsultatin s far there is a lack f secure mental health facilities in Slmn Islands suitable fr peple with mental impairment wh are charged with a criminal ffence, r fund guilty but insane, and wh need t be detained either fr the safety f the persn r the cmmunity. 1.4 The prvisins in the Criminal Prcedure Cde and Penal Cde fr detentin f peple with mental impairment prvide fr detentin in a mental hspital, prisn r ther place f safe custdy. Hwever in reality it appears that Rve Crrectinal Centre is the nly secure place f detentin. At the Rve Crrectinal Centre peple wh are affected with mental impairment are nt kept in separate units frm nrmal inmates. These peple are kept with the nrmal inmates and are treated the same as the ther prisners. Peple with mental impairment can pse a ptential security risk t ther prisners at the Crrectinal Centre. 1 1 Francis Haisma, Cmmissiner fr Crrectinal Services, Submissin N. 1, 1 Octber 2009.

16 Mental Impairment Cnsultatin Paper 1.5 The Kilu ufi mental health facility at Auki is pen and is nt secure. Patients can escape r leave at any time int the cmmunity. This can pse a risk t the public. 2 There is als a need t upgrade the mental health facility at Kilu ufi, as well as there is need fr medical staffing and the need fr prescribed medicines. 3 1.6 The plicy reasns fr having prper rules in place that apply t peple wh are nt fit because f mental impairment and thse wh cannt plead r stand trial fr ther reasns are t: ensure that the balance between the interests f peple with a mental impairment and thse wh cannt plead r stand trial and the interests and the safety f the public is maintained; ensure that the cnstitutinal prtectins affrded t peple with a mental impairment charged with a criminal ffence are nt vilated; ensure that all peple are treated equally befre the law; and meet the bligatins f Slmn Islands under United Natins cnventins such as the UNCRPD and the CRC. Research Prcess 1.7 Wrk n this Cnsultatin Paper invlved reviewing the relevant prvisins f the Penal Cde and the Criminal Prcedure Cde that cvers the law and prcesses that cncerns peple with a mental impairment wh are charged with a criminal ffence. In ding that the LRC did sme preliminary cnsultatin with key stakehlders t get their views n hw these peple were dealt with in the criminal justice system in practice, and t identify prblems assciated with the applicatin f the law in this area. The infrmatin gathered has been used t write this Paper. Fr example, the infrmatin in the case study was btained frm the Rve Crrectinal Services Centre, and ther imprtant infrmatin was btained after having preliminary cnsultatin with key prfessinals frm the Ministry f Medical and Health Services and the Public Slicitr s Office in Hniara. 2 Dr. Paul Ortala, Psychiatrist, Cnsultatin, Law Refrm Cmmissin Office, 16 Octber 2009. 3 Francis Haisma, Cmmissiner fr Crrectinal Services, Submissin N. 1, 1 Octber 2009.

17 Intrductin 1.8 The LRC als did research n the laws in ther jurisdictins, mainly New Zealand, the Nrthern Territry, New Suth Wales and United Kingdm in this area. These jurisdictins were cnsidered because at ne stage they had similar laws t thse in Slmn Islands, hwever ver the years these jurisdictins have refrmed the law in this area. The aim f the cmparisn with ther jurisdictins is t identify sme ptins fr refrm that might assist t vercme the prblems identified in Slmn Islands. Overview f this Paper 1.9 The next part f the paper gives infrmatin abut the current law that applies t peple with mental impairment in the criminal justice system. Chapter 3 cnsiders relevant human rights standards, and analyses the current law frm that perspective. Chapter 4 identifies sme prblems in relatin t the existing law and gives infrmatin abut ptins fr refrm f the law.

19 Current Law Chapter 2 - Current Law This chapter explains the current law cncerning peple wh have a mental impairment at the time they cmmitted an ffence, and are relying n the defence f insanity. It als explains the law relating t the fitness f peple wh have a mental impairment, and wh participate in curt prceedings. 2.1 The Penal Cde and Criminal Prcedure Cde cntain prvisins n insanity as a defence and prcedures that apply where a persn is charged with an ffence and is nt fit t plead due t unsundness f mind, and separate prcedures fr a persn charged with a criminal ffence wh des nt understand the prceedings fr a reasn ther than unsundness f mind. Insanity as a defence 2.2 Sectin 12 f the Penal Cde 4 states that a persn is nt criminally respnsible fr an ffence if at the time f ding the act r missin that cnstitutes the ffence he r she is affected by a disease f the mind t the extent where he r she: is incapable f understanding what he r she was ding; r did nt knw that he r she shuld nt d the act r missin. 5 2.3 Sectin 12 is based n the mral assumptin that it is wrng t punish thse wh, by reasn f mental incapacity, are nt capable f free and ratinal actin. 6 Hwever the defence des nt lead t an acquittal. 2.4 The Criminal Prcedure Cde says that even if the accused was affected by a mental disease at the time f the ffence he r she is nt entitled t be acquitted f the ffence but is guilty f the ffence but insane. 7 2.5 Fllwing a verdict f guilty but insane the curt must reprt the case fr the rder f the Gvernr-General and rder that 4 Cap 26. 5 Penal Cde s 12 6 Fairall PA & Jhnsn PW, Antiscial Persnality Disrder and the Insanity Defence (1987) 11 Criminal Law Jurnal 78, 79. 7 Criminal Prcedure Cde s 146(1).

20 Mental Impairment Cnsultatin Paper the accused persn be kept in custdy. 8 The Gvernr- General has discretin t rder the accused t be cnfined in a mental hspital, prisn r ther places suitable fr safe custdy. 9 This prvides a mechanism fr prtecting the cmmunity frm peple wh have mental impairment, wh are at risk f harming themselves r thers. Prtectin is prvided by incapacitatin (detentin) and treatment. Hwever, it is based n an assumptin that a persn wh is nt guilty f an ffence because f insanity is a risk t him r herself r the cmmunity. 2.6 At the end f three years, the fficer in charge f the mental hspital r prisn must make a reprt in writing t the Directr f Public Prsecutins t be cnsidered by the Gvernr-General abut the cnditin, histry and circumstances f the detainee. Subsequent reprts f this srt must be made every tw years. 10 2.7 The Gvernr-General can appint smene t make a special reprt t the Directr f Public Prsecutins, which is then sent t the Gvernr-General, abut the cnditin, histry and the circumstances f the detained accused. 11 2.8 After cnsidering the reprts, the Gvernr-General can rder the release f the accused persn subject t the cnditins fr supervisin r any ther cnditins t ensure the safety and welfare f the accused and the public. The Gvernr-General can als rder the persn t be transferred frm a mental hspital t a prisn, r frm a prisn t a mental hspital, r frm any place in which the accused is detained r remained under supervisin t either a prisn r a mental hspital. 12 Fitness t Plead 2.9 Fitness t plead r stand trial relates t the capacity f the accused t participate in a criminal prceeding. The questin f fitness t plead can arise fr reasns ther than mental illness. In Slmn Islands the Criminal Prcedure Cde has tw prcesses that address fitness t plead: 8 Criminal Prcedure Cde s 146(1)(b). 9 Criminal Prcedure Cde s 146 (1)(c). 10 Criminal Prcedure Cde s 146(2). 11 Criminal Prcedure Cde s146(4). 12 Criminal Prcedure Cde s 146(5).

21 Current Law ne that applies when the accused is incapable f defending the charge due t unsundness f mind 13 ; and anther that applies when the accused des nt understand the prceedings fr ther reasns ther than unsundness f mind. 14 Unfit t plead due t unsundness f mind 2.10 Fitness t plead can be cnsidered befre the accused pleads t the charge r it can cme up during the curse f the case. In bth situatins the Curt must cnduct an inquiry t inquire int the unsundness f the accused mind. 15 2.11 Where the Curt decides that the accused is f unsund mind and incapable f making his r her defence, the Curt must pstpne the prceedings until the accused is fit t make his r her defence. 16 2.12 The cncept f unsundness f mind is nt defined in either the Criminal Prcedure Cde r the Penal Cde, neither d their relevant prvisins lay ut any prcedure as t hw the curt inquiry is cnducted r what matters the curt has t inquire int. 17 2.13 Accrding t sectin 256 f the Criminal Prcedure Cde where a persn refuses r fails t plead ( stands mute f malice, r neither will, nr by reasn f infirmity can answer directly t the infrmatin ) the curt can cnsider whether the accused is f unsund mind, and incapable f making his r her defence. If the accused is nt fit the curt must detain the accused in safe custdy and reprt the case t the Gvernr-General. 2.14 Under an alternative prcedure in sectin 144 f the Criminal Prcedure Cde where the issue f fitness t plead arises in the curse f a trial r a preliminary investigatin, the curt can grant r refuse bail t the accused. Bail can be granted t a persn wh is nt fit t plead due t unsundness f mind if the curt is satisfied that arrangements can be made t prevent the accused frm injuring himself r herself and t 13 Criminal Prcedure Cde ss 144, 256. 14 Criminal Prcedure Cde s 149. 15 Criminal Prcedure Cde ss 144, 256. 16 Criminal Prcedure Cde ss 144(2), 256. 17 Per Mwanesalua J, in Regina v Tipasua [2008] SBHC 27 at para 4.2.

22 Mental Impairment Cnsultatin Paper prtect the cmmunity. 18 If bail is nt granted t the accused, the curt must detain the persn and send the curt recrd t the Directr f Public Prsecutins s that the case is cnsidered by the Gvernr-General. 19 2.15 After cnsidering the case the Gvernr-General can make an rder fr the curt t direct the accused persn t be detained in a mental hspital r ther suitable place f custdy up t the time the accused is capable f making his r her defence. 20 2.16 The persn can be detained until a medical fficer in charge f the mental hspital r prisn finds that the accused persn is capable f making his r her defence. The medical fficer sends a certificate t the Directr f Public Prsecutins 21 wh then has t infrm the curt whether the case against the accused persn will cntinue r nt. 22 If the case is nt cntinued the accused persn is released frm custdy. The release des nt prevent any future prsecutin against the persn based n the same facts. 23 2.17 The curt can resume the case when it decides that the accused persn is capable f making his r defence and the medical certificate can be used as prf that the accused persn is capable. If the curt finds that the accused persn is still incapable f making the defence, it will act as thugh the accused is brught befre it fr the first time. 24 Accused des nt understand prceedings but he r she is nt insane 2.18 In sme cases an accused may nt understand the prceedings but he r she is nt insane. An example f such case wuld be a persn wh has acquired brain injury r a physical disability cmbined with intellectual impairment r brain damage, and as a result f such injury cannt fllw the prceedings lgically. 2.19 There are tw prcesses specified in the Criminal Prcedure Cde that deal with accused persns wh cannt understand the prceedings but are nt insane. They gvern: 18 Criminal Prcedure Cde s 144(3). 19 Criminal Prcedure Cde s 144(4). 20 Criminal Prcedure Cde s 144(5). 21 Criminal Prcedure Cde s 147(1). 22 Criminal Prcedure Cde s 147(2). 23 Criminal Prcedure Cde s 147(3). 24 Criminal Prcedure Cde s 148(2).

23 Current Law cases decided by the Magistrates Curt 25 ; and cases which are subject t a preliminary investigatin by the Magistrates Curt and f trial in the High Curt. 26 2.20 The Magistrates Curt can decide cases that carry a punishment f 14 year s imprisnment, r a fine, r bth. 27 Hwever when dealing with these cases the curt can nly impse a term f imprisnment up t five years 28 r a fine up t $50,000. 29 2.21 The High Curt must decide all ther criminal cases. These include cases f rape, murder and manslaughter. In additin, ther cases that carry a maximum penalty f less than 14 years can be decided by the High Curt, if the Magistrates Curt cnsiders that the case shuld be tried in the High Curt, r if the prsecutr has made an applicatin fr the case t be tried in the High Curt. Befre a case can be tried by the High Curt there must be a preliminary investigatin in the Magistrates Curt. 30 Cases tried by a Magistrates Curt 2.22 In cases tried in a Magistrates Curt, the Curt can prceed with the case, hear evidence and decide whether the evidence wuld justify a cnvictin. 2.23 T justify a cnvictin the prsecutin must prve each element f the ffence beynd reasnable dubt. The defence can be called upn t give evidence at the clse f the evidence fr the prsecutin. 31 2.24 If the evidence is nt sufficient t justify a cnvictin the Curt must acquit and discharge the accused. If the evidence is sufficient t justify a cnvictin, the curt must rder the accused t be detained during the Gvernr-General s pleasure. This curt rder is subject t the cnfirmatin f the High Curt. 32 25 Criminal Prcedure Cde s 149(1)(a). 26 Criminal Prcedure Cde s 149(1)(b). 27 Criminal Prcedure Cde s 4(b), Magistrates Curt Act (Cap 20) s 27(1)(a). 28 Criminal Prcedure Cde s 7(1)(a), Magistrates Curt Act (Cap 20) s 27(1)(b)(i). 29 Criminal Prcedure Cde (Amendment) Act 2009 s 3(a). 30 Criminal Prcedure Cde s 210. 31 Criminal Prcedure Cde s 149(1). 32 Criminal Prcedure Cde s 149(1)(a).

24 Mental Impairment Cnsultatin Paper Cases which are subject t a preliminary investigatin by a Magistrates Curt and trial by the High Curt 2.25 In a preliminary investigatin the Magistrates Curt hears evidence frm the prsecutin. If the Curt is satisfied that a strng case (a prima facie case) has been prved, it must cmmit the accused t the High Curt fr trial. The Magistrates Curt can then admit the accused persn t bail r cmmit him r her t prisn fr safe custdy. 33 2.26 At the trial at the High Curt if the Curt is nt satisfied that the evidence given by the prsecutin will justify a cnvictin, the Curt must acquit and discharge the accused. But if the Curt is satisfied that the evidence will justify a cnvictin, the Curt must rder the accused persn t be detained during the Gvernr General s pleasure. 34 2.27 After the preliminary investigatin, but befre the trial the Directr f Public Prsecutins can decide nt t prceed with the case against the accused. In this situatin the persn is released frm prisn, r discharged frm bail. But this discharge des nt prevent any subsequent prsecutin fr the same facts. 35 2.28 A persn detained under the Gvernr General s pleasure can be kept in places and under cnditins where the Gvernr General frm time t time rders. 36 2.29 When the High Curt makes r cnfirms an rder detaining an accused persn at the Gvernr-General s pleasure the Curt must als send t the Directr f Public Prsecutins a cpy f the ntes f evidence taken at the trial, tgether with any recmmendatins r bservatins abut the case. 37 2.30 The Criminal Prcedure Cde has n prvisins fr review f detentin f a persn fllwing a finding under sectin 149 that the evidence wuld justify a cnvictin, r that allw the Gvernr-General t make any specific rders abut medical treatment fr the persn. 33 Criminal Prcedure Cde s 149(1)(b)(i) 34 Criminal Prcedure Cde s 149(1)(b)(ii). 35 Criminal Prcedure Cde s 149(1)(b)(iii). 36 Criminal Prcedure Cde s 149(2). 37 Criminal Prcedure Cde s 149(4).

25 Human Rights Standards Chapter 3 - Human Rights Standards This chapter explains human rights standards recgnised in the Cnstitutin and in relevant internatinal laws, such as the Cnventin n the Rights f Persns with Disabilities, and the Cnventin n the Rights f the Child, that are relevant t this area f law. 3.1 The Cnstitutin cntains sme imprtant rights that need t be cnsidered. Everyne is entitled t fundamental rights and freedms including the right t life, liberty, security f the persn and the prtectin f law. These rights are subject t respect fr the rights and freedms f thers and fr the public interest. 38 The Cnstitutin als has a guarantee fr a fair trial in a reasnable time fr peple charged with a criminal ffence. 39 3.2 The human rights standards in the Cnstitutin crrespnd clsely (with sme changes) t thse in the Eurpean Cnventin n Human Rights. Therefre, we can lk at decisins by the Eurpean Curt f Human Rights (ECHR) in relatin t these standards when cnsidering the standards in the Cnstitutin. 3.3 Slmn Islands has als signed the United Natins The Cnstitutin Cnventin n the Rights f Persns with Disabilities (UNCRPD) and the Cnventin f the Rights f the Child. T date Slmn Islands has nt ratified the UNCRPD but has acceded t the CRC. The rights r standards cntained in the Cnstitutin and the Cnventins will be used as a reference fr refrm f the law in this area. Fair trial within a reasnable time 3.4 The Cnstitutin says that any persn charged with a criminal ffence shall be affrded a fair hearing within a reasnable time by an independent and impartial curt. the trial is nt held within a reasnable time the persn shuld be released n bail. 40 If 38 Cnstitutin s 3. 39 Cnstitutin s 10. 40 Cnstitutin ss 5(3), 10(1).

26 Mental Impairment Cnsultatin Paper 3.5 A trial includes the whle f the prceedings including appeals and decisins abut sentence. This means that the requirement fr a fair hearing by an independent and impartial curt applies t the decisin abut sentence, as well as decisin abut guilt r inncence. The ECHR has decided that a prcedure under UK law that allwed the Hme Secretary (a plitician) t decide hw lng a persn shuld actually be detained fr after being sentenced t an indeterminate sentence ( at Her Majesty s pleasure ) was a vilatin f the right t a fair trial under article 6 f the Eurpean Cnventin n Human Rights. 41 Hwever article 6 des nt apply t bail applicatins, r t prceedings fllwing a finding that an applicant is unfit t plead t a criminal charge. 42 3.6 Other requirements fr a fair trial include: the presumptin that an accused is inncent until he r she is prven r pleaded guilty; the accused s right t be infrmed f the nature f the ffence charged in a language he r she understands; the award f adequate time and facilities t the accused t prepare his r her defence; the accused s right t defend himself r herself befre the curt in persn, at his wn expense, by a legal representative f his r her chice; the accused s right t be affrded facilities t examine witnesses called by the prsecutin; and the accused s right t the assistance f an interpreter if he r she cannt understand the language used at the trial. 43 3.7 What a fair trial is and what is reasnable time are issues that require cnsideratin in the cntext f trials f peple with a mental impairment because these persns experience the criminal justice system differently t ther accused at all stages f the criminal justice prcess. 44 41 T v United Kingdm, V v United Kingdm 16 December 1999 (2000) 30 EHRR 121. 42 C Ovey and Rbin White, Jacbs and White The Eurpean Cnventin n Human Rights, (4 th editin) 162-163. 43 Cnstitutin s 10. 44 Western Australia Law Refrm Cmmissin, Review f the Law f Hmicide, Final Reprt (2007).

27 Human Rights Standards 3.8 It is highly likely in the Slmn Islands criminal justice system that cases invlving persns wh have a mental impairment will experience delays due t the lack f medical expertise and resurces. 45 This prblem is illustrated by the case study in the bx n page 28. In this case the accused was detained at Rve Crrectinal Centre fr 16 mnths, and his case adjurned 17 times, befre his cnditin was assessed by a dctr and a reprt abut his cnditin was made s that the curt culd make a decisin abut whether he was fit t plead. Right t liberty 3.9 The Cnstitutin says that a persn cannt be deprived f his r her persnal liberty unless it is authrized by law in the fllwing circumstances: if he r she is nt fit t plead t a criminal charge; as part f a sentence given by a curt fr a criminal ffence; if he r she is reasnably suspected f having cmmitted an ffence; r in the case f a persn f unsund mind fr the purpse f care r treatment r the prtectin f the cmmunity. 46 3.10 The Cnstitutin als says that a persn s right t liberty is subject t the interest f the public and the rights and freedms f thers. 47 This means that a persn s right t liberty can be breached by the State in certain circumstances, particularly, if the release f the persn int the cmmunity might pse a risk t public safety and prevents thers frm exercising their rights and freedms guaranteed in the Cnstitutin. 3.11 Laws that prvide fr detentin f peple f unsund mind that cannt be justified n the grunds f prviding care r treatment, r prtectin f the cmmunity may be unlawful, and detentin f peple wh are nt fit t plead fr ther reasns ther than unsundness f mind that is nt justified n these grunds, might als be unlawful. 45 At the mment Slmn Islands nly has ne qualified psychiatrist. The Public Slicitr s Office als raised cncerns arund the difficulty f btaining reprts n time. 46 Cnstitutin s 5(1)(a)(b)(f)(i). 47 Cnstitutin s 3

28 Mental Impairment Cnsultatin Paper 3.12 The Cnstitutin als says that any persn wh is arrested r detained fr an ffence wh is nt tried within a reasnable time shuld be released either with cnditins r uncnditinally pending the trial. 48 Analysis 3.13 The prvisins that allw the Gvernr-General t make decisins abut the release and the care f a persn fund guilty but insane, and a persn detained under sectin 149 f the Criminal Prcedure Cde (when the curt finds that there is evidence t justify a cnvictin) may be incnsistent with a persn s right t a fair trial. 3.14 The Criminal Prcedure Cde specifies that the Gvernr- General can determine the release r care f a persn, but it des nt specify whether the persn has the pprtunity t be heard, r whether such hearing is t be held in public. The Gvernr-General is nt a curt, and decisins regarding detentin f peple under sectins 149 and 146 f the Criminal Prcedure Cde are similar t the functin that was held t be invalid in cases decided by the ECHR in relatin t the right t a fair trial in the Eurpean Cnventin n Human Rights. In the cases f T v United Kingdm and V v United Kingdm, the ECHR decided that a prcedure under UK law that allwed the Hme Secretary t decide hw lng a persn shuld be detained, after being sentenced t an indeterminate sentence, vilated the persn s right t a fair trial under article 6 f the Eurpean Cnventin n Human Rights. 49 3.15 The prceeding under sectin 149 f the Criminal Prcedure Cde, t determine whether there is enugh evidence t supprt a cnvictin f a persn wh is nt fit t plead, may als vilate the persn s right t a fair trial. The persn cannt understand the prceedings and may nt be able t cmmunicate with his r her lawyer, r participate in the prceedings. 3.16 In cases where a persn is nt fit t plead due t unsundness f mind, he r she can be detained, and the trial pstpned, until he r she is fit r unless the Gvernr- 48 Cnstitutin 5(3). 49 T v United Kingdm, V v United Kingdm 16 December 1999 (2000) 30 EHRR 121.

29 Human Rights Standards General rders his r her discharge and release. 50 In cases where bail is nt granted by the curt the accused is detained. In this case the persn is nt ging t get his r her trial within a reasnable time because the Criminal Prcedure Cde des nt specify any timeframe fr the detentin. 3.17 The Criminal Prcedure Cde des nt grant any entitlement t treatment fr an accused wh is detained because he r she is nt fit t plead. By cntrast, the Cnstitutin prvides that persn f unsund mind can nly be detained fr the purpse f care r treatment, r the prtectin f the cmmunity. The Criminal Prcedure Cde des nt require the detentin f a persn wh is nt fit t plead, r fund guilty but insane, r a subject t a finding under sectin 149 t be justified n the need fr the persn s care r treatment r fr the prtectin f the cmmunity as required under sectin 5 f the Cnstitutin. 3.18 The right t a fair trial within a reasnable time might als be vilated because f delays in btaining medical assessments s that a decisin can be made abut whether the persn is nt fit t plead due t mental illness, r is nt fit t plead fr sme ther reasn. 3.19 Under the Eurpean Cnventin n Human Rights any pretrial detentin f a persn charged with an ffence has t be justified n the grund f public interest, and detentin shuld nt exceed a reasnable time. In the case f prisners with a mental disrder detentin can be justified by the need t ensure that the accused appears at the trial, risk f reffending and risk f harm t the cmmunity r harm t the persn. 51 3.20 The ECHR has als held that where a persn is detained because f mental disrder there must be a clse crrespndence between expert medical pinin and the definitin f mental disrder, 50 Criminal Prcedure Cde s 147(3). 51 See C Ovey and Rbin C.A. White, Jacbs & White The Eurpean Cnventin n the Human Rights (4)(2006)134 135.

30 Mental Impairment Cnsultatin Paper bjective medical evidence regarding the mental disrder and the curt must decide that the mental disrder is f a kind r degree warranting cmpulsry cnfinement. 52 Internatinal law 3.21 The rights f peple wh are guilty f the ffence but insane and thse wh are nt fit fr ther reasns are recgnized in internatinal law. Tw f the internatinal laws relevant t this prject are the UNPRPD and the CRC. Slmn Islands has varius bligatins t satisfy when it signed r acceded t these internatinal laws. Cnventin n the Rights f Peple with Disabilities (UNPRPD) 3.22 Slmn Islands signed this Cnventin n 23 September 2008. A year later the cuntry signed the Optinal Prtcl t the Cnventin n 24 September 2009. Signing the Cnventin is subject t ratificatin by signatry States. This means that Slmn Islands has t ratify the Cnventin t be bund by it. Signing the Cnventin is the first step in becming a party t the Cnventin. By signing the Cnventin r Optinal Prtcl, Slmn Islands has indicated its intentin t take steps t be bund by the treaty at a later date. Being a signatry t the Cnventin als creates an bligatin, in the perid between signing and ratificatin, t refrain frm acts that wuld defeat the bject and purpse f the treaty. 53 3.23 The purpse f the Cnventin is t prmte, prtect and ensure the full and equal enjyment f all human rights and fundamental freedms by all persns with disabilities, and t prmte respect fr their inherent dignity. 54 Under the Cnventin persns with disabilities include thse wh have lng-term physical, mental, intellectual r sensry impairments which in interactin with varius barriers may 52 Winterwerp v Netherlands (Applicatin n. 6301/73) http://www.bailii.rg/eu/cases/echr/1979/4.html. 53 United Natins, Frequently Asked Questins regarding the Cnventin n the Rights f Persns with Disabilities http://www.un.rg/disabilities/default.asp?navid=23&pid=151#bp1 (Accessed 29/11/10). 54 Cnventin n the Rights f Persns with Disabilities UNTS art 1.

31 Human Rights Standards hinder their full and effective participatin in sciety n an equal basis with thers. 55 3.24 The Cnventin prvides that state parties recgnize that all persns are equal befre and under the law, and are entitled withut any discriminatin t the equal prtectin and equal benefit f the law. 56 3.25 States Parties must ensure that peple with disabilities have: access t justice n an equal basis with thers; 57 equal recgnitin befre the law; 58 and the right t liberty and security f persn n an equal basis with thers. 59 3.26 Persns with disabilities must nt be deprived f their liberty unlawfully r arbitrarily, and any deprivatin f liberty must be in cnfrmity with the law, and that the existence f a disability shall in n case justify a deprivatin f liberty. 60 3.27 States Parties must ensure that if persns with disabilities are deprived f their liberty thrugh any prcess, they are, n an equal basis with thers, entitled t guarantees in accrdance with internatinal human rights law (such as the right t liberty and right t a fair trial) and shall be treated in cmpliance with the bjectives and principles f the present Cnventin. 61 3.28 In terms f the right t health and health services, the Cnventin says that persns with disabilities have the right t the highest attainable standard f health withut discriminatin n the basis f disability. This means that they are t receive the same range, quality and standard f free r affrdable health services prvided fr ther persns and receive thse health services needed because f their disabilities. 62 55 Cnventin n the Rights f Persns with Disabilities UNTS art 1. 56 Cnventin n the Rights f Persns with Disabilities UNTS art 5(1) 57 Cnventin n the Rights f the Persns with Disabilities UNTS art 13. 58 Cnventin n the Rights f the Persns with Disabilities UNTS art 12. 59 Cnventin n the Rights f Persns with Disabilities UNTS art 14(1)(a). 60 Cnventin n the Rights f Persns with Disabilities UNTS art 14(1)(b). 61 Cnventin n the Rights f Persns with Disabilities UNTS art 14(2). 62 Cnventin n the Rights f Persns with Disabilities UNTS art 25.

32 Mental Impairment Cnsultatin Paper 3.29 The Cnventin als states that parties t the cnventin must prvide cmprehensive habilitatin and rehabilitatin services in the areas f health, emplyment and educatin. 63 Cnventin n the Rights f the Child 3.30 Slmn Islands acceded t the CRC n 6 May 2002. Relevant prvisins frm this cnventin cver the rights f children t persnal liberty and the right t health services. 3.31 The CRC recgnises and seeks t prmte the rights f persns under 18 years f age. In terms f health services the Cnventin requires that state parties recgnise the right f the child t the highest attainable standard f health and t facilities fr treatment f illnesses and rehabilitatin f health. The CRC als bliged state parties t ensure that n child is deprived f his right t access t such health care services. 64 3.32 The Cnventin als says that every child deprived f liberty shall be treated with humanity and respect fr the inherent dignity f the human persn, and in a manner which takes int accunt the needs f persns f his r age. 65 63 Cnventin n the Rights f Persns with Disabilities UNTS art 26. 64 Cnventin n the Rights f the Child UNTS art 24. 65 Cnventin n the Rights f the Child UNTS art 37.

33 Issues and Optins fr Refrm Chapter 4 - Issues and Optins fr Refrm This chapter cnsiders a number f the prblems r issues identified in relatin t the law cncerning peple with mental impairment in Slmn Islands. The chapter als lks at hw ther jurisdictins develped their laws in this area t address the issues that are identified. This cmparative analysis f the law becmes the basis upn which refrm ptins can be identified t vercme the prblems in Slmn Islands. 4.1 The LRC has identified prblems and issues in relatin t this area f law after cnducting: a cmparative analysis f the law in ther jurisdictins; stakehlder cnsultatins with key stakehlders frm the Crrectinal Services; the Public Slicitr s Office and Ministry f Health and Medical Services; an analysis f applicable internatinal laws; and sme cnsideratin f applicable cnstitutinal prvisins. 4.2 The issues identified include: indefinite, lengthy, inapprpriate r unlawful detentin; lack f criteria fr determining unfitness t plead; lack f clarity arund decisin making; curts have n pwer t rder assessments and make rders abut where a persn shuld be detained; lack f review f decisins t detain; limited appeal rights; and limitatin with the insanity defence, and cnflict between the Penal Cde and Criminal Prcedure Cde in relatin t peple wh are insane at the time f the ffence. Indefinite, lengthy, inapprpriate r unlawful detentin 4.3 The issues in relatin t the detentin f peple with a mental impairment charged with a criminal ffence are significant. The bjective f the Cnstitutinal prtectins (right t liberty, right t a fair trial within a reasnable time) discussed in the earlier sectin is t prevent lengthy, indefinite r arbitrary detentin. Under the Cnstitutin detentin can be lawful nly when it is part f a sentence impsed by a curt fllwing a finding f guilt, when a persn is nt fit t plead,

34 Mental Impairment Cnsultatin Paper and fr a persn with a mental impairment it must als be fr the purpse f care r treatment r the prtectin f the cmmunity. 4.4 Hwever, under the Criminal Prcedure Cde an accused can be detained fr indefinite r lengthy perids where: the accused is fund guilty f the ffence but insane; the accused is fund nt fit t plead due t unsundness f mind; r the accused is nt fit t plead because he r she cannt understand the prceedings and the curt has fund that there is sufficient evidence t supprt a cnvictin. 4.5 There is a significant risk that a persn with a pssible mental impairment might be detained fr significant perids f time even befre there is any assessment whether he r is fit t plead. This risk is particularly high if the persn is charged with a serius ffence such as murder because he r she is less likely t gain release n bail. 4.6 Fllwing a finding under sectin 146 r 149 f the Criminal Prcedure Cde there might als be a delay befre the Gvernr-General makes a decisin abut the detentin f the persn. 4.7 There might be further delay when prceedings are pstpned under sectin 146 because where the accused is nt released n bail there is a risk that he r she might be detained fr a lengthy time, particularly, where the persn des nt receive treatment, r if the cnditin is nt treatable. 4.8 The Criminal Prcedure Cde des nt specify any timeframe fr the detentin. There is an assumptin that eventually the persn will be fit t plead. The pstpnement might benefit thse with curable cnditins, but culd lead t lifelng incarceratin f the incurable mentally ill wh are incapable f regaining capacity t plead. The pstpnement nly prmtes a fair trial fr persns with a curable cnditin but it perates as a punitive device fr thse wh have an incurable cnditin. Similar treatment f the incurables and the curable vilates the equality prvisin in the Cnstitutin, and under the applicable internatinal law. Under the Criminal Prcedure Cde the detentin f the persn des nt have t be justified n any grund f public

35 Issues and Optins fr Refrm interest, r the need t prvide care and treatment and prtectin fr the detained persn. 4.9 Lack f secure mental health facilities utside f Rve Crrectinal Centre fr peple with mental impairment wh are charged with a criminal ffence als means that peple wh are detained under these prvisins are detained in prisn. 4.10 The fllwing case study illustrates hw different factrs can cntribute t lengthy and indefinite detentin. It shws that there can be significant prblems with the transfer f peple with mental impairment frm the prisn system t a mental health facility even thugh the Criminal Prcedure Cde prvides that the accused can be detained in prisn r a mental health facility until he r she is fit t plead. Case study: JH s case 66 The accused JH was charged with murder. He was received int Rve Crrectinal Centre n 17 Octber 2005. His cunsel apprached the cmmandment at Rve Central Prisn t prduce a reprt n the accused s behavir as cunsel believed that the accused was nt fit t plead r stand trial. By then the accused had been in custdy fr nine (9) mnths. Rve Central Prisn Management had difficulties cmmunicating with the accused as he was nt respnding t questins. Officers speaking his native tngue tried but als t n avail. The accused cntinued t appear at the curt n a frtnight basis and detained in prisn. In February 2007 a psychiatric reprt was submitted which recmmended that the accused attended Kilu ufi Mental Hspital fr further assessment. The Crrectinal Service made inquiries with Kilu ufi Hspital and in March 2007 the Hspital agreed t receive the accused. Hwever, the Hspital management said it wuld nt guarantee the persnal security f the accused and that Crrectinal Services must make arrangements fr his transfer, meals and security. It was unclear whether Crrectinal Services had the pwer t remve him t Kilu ufi. The Magistrates Curt in Hniara was ntified abut this. Advice was issued by the Curt that a written request with an 66 Details f this case study were prvided in a letter frm the Cmmissiner fr Crrectinal Services submitted t the Law Refrm Cmmissin n 22/9/09.

36 Mental Impairment Cnsultatin Paper attached cpy f the psychiatrist reprt including an affidavit wuld need t be tendered t the curt t make the rder. It was unclear wh was respnsible fr making the request t the curt. The accused cntinued t appear in curt n a frtnight basis until 10 th Octber 2007 when an applicatin was made by the Directr f Public Prsecutins under s144 f the Criminal Prcedure Cde. The Magistrate then made an rder referring the accused t Kilu ufi Mental Hspital fr safe custdy and the further evaluatin f his mental health. Under the rder the accused was t return t curt n 8 th Nvember 2007. The accused returned t curt n 8 th Nvember withut attending Kilu ufi Hspital. He cntinued his frtnightly appearance at the Curt. On 6 th December 2007 upn an applicatin made by the Public Slicitrs Office the Curt made an rder fr the receptin f the accused at Kilu ufi fr treatment. He was held at Rve Prisn fr safe custdy until his transfer, which never happened. On 19 th August 2008 the Directr f Public Prsecutr advised the Gvernr-General that the case was pending under s144 f the Criminal Prcedure Cde fr cnsideratin. On 16 th September 2008 the Directr f Public Prsecutins and the Gvernr-General met t cnsider the case. The Gvernr-General issued a detentin rder detaining the accused at Rve crrectinal centre t be jintly taken care f by the mental health services and the crrectinal service. The case has t be reviewed annually. The existing Medical facilities at bth Kilu ufi and the Natinal Referral Hspital are ttally inapprpriate t accmmdate JH, as required under the law. 67 Optins fr refrm 4.11 Optins t cnsider when addressing prblems relating t lengthy r indefinite detentin include: the hlding f a special hearing within a specified time t determine the criminal prceedings when a persn is nt fit t plead fr any reasn; r 67 Reference t cpy f Order f Gvernr-General delivered by Cmmissiner f Crrectinal Services.

37 Issues and Optins fr Refrm the adptin f the New Zealand apprach, where the curt must hld a special hearing t determine whether the accused cmmitted the physical elements f the ffence befre it cnsiders the issue f fitness t plead. 4.12 In additin legislatin can prvide prtectin frm lengthy r indefinite detentin by: prviding ptins fr the prtectin f the cmmunity, r the accused, ther than by detentin in a prisn; a requirement that detentin can nly be rdered by a curt when it is necessary, taking int accunt the interests f the accused and the interests f the public r persns likely t be affected by the curt decisin; clarifying the right t bail fr an accused wh is nt fit t plead; prviding mre ptins fr review f peple wh are detained; ensuring that peple with a mental impairment wh are charged with a criminal ffence have the same rights f appeal as thers; r allwing fr the diversin f ffenders charged with a relatively minr criminal ffence ut f the criminal justice system. 4.13 Diversin refers t any measure that remves an ffender frm the criminal justice system at any stage in the criminal prcess. Diversin may divert ffenders away frm the system with r withut directing them int an alternative system, a system that fcuses n treatment rather than punishment. 4.14 In NSW, the Lcal Curt is empwered t deal with ffenders with mental illness and thse with a cgnitive disability wh are charged with less serius ffences. 68 The reasns fr this are threefld. First, it is nt fair t require thse whse culpability has been reduced t face the full frce f the criminal law and its sanctins. Secnd, the culpability f these ffenders shuld be measured against the wide scial prblems they typically face which may ffer an explanatin fr their criminal behaviur. Third, because f the ffender s cnditin, it is less likely that the cnventinal criminal prcess will prvide a means f rehabilitatin and deterrence frm future re-ffending. An alternative prcess, 68 See Mental Health (Frensic Prvisins) Act 1990 (NSW) ss 32 & 33.

38 Mental Impairment Cnsultatin Paper ne that tries t address the underlying causes f criminal cnduct, may have a greater chance at reducing recidivism. 69 Special hearing after a fitness hearing 4.15 In ther jurisdictins a special hearing is a hearing t determine whether an accused with a mental impairment is: nt guilty f the ffence; nt guilty n the basis f mental impairment; r that the accused cmmitted the ffence r anther alternative ffence t the ne charged. 4.16 Currently, the ptin f a special hearing (t determine whether there is evidence t supprt a cnvictin) is nly available in Slmn Islands fr peple wh are nt fit t plead fr a reasn ther than unsundness f mind. 4.17 The plicy reasn fr a special hearing is t ensure that there is sme justificatin fr detentin f a persn wh is accused f a serius ffence, wh is nt fit t plead. 4.18 In jurisdictins like the Nrthern Territry and New Suth Wales a special hearing is used fr accuseds wh are nt fit t plead. A special hearing must als be held within a specified time. 4.19 In the Nrthern Territry, a special hearing must be held 3 mnths after the judge s determinatin that the persn is unlikely t becme fit t stand trial within the 12 mnths. 70 In New Suth Wales, the curt has t cnduct a special hearing as sn as practicable unless the DPP decides therwise that n further prceedings will be taken in respect f the ffence. 71 4.20 In New Suth Wales, prir t the intrductin f the special hearing, defendants wh were fund unfit t plead were detained indefinitely at the Gvernr - General s pleasure 69 New Suth Wales Law Refrm Cmmissin, Peple with cgnitive and mental health impairments in the criminal justice system: an verview Cnsultatin paper 7 (2010). 70 Criminal Cde Act (NT) s 43R(3). 71 Mental Health (Frensic Prvisins) Act 1990 (NSW) s 19.

39 Issues and Optins fr Refrm withut the cnsideratin as t whether r nt they had in fact cmmitted the ffence charged against them. 72 4.21 The special hearing can ffer ptential slutins t indefinite r lengthy detentin. First, the special hearing ensures that peple wh are unfit t plead r stand trial d nt have t be detained fr indefinite r lengthy perids befre their cases can be dealt with. It addresses the prblem f waiting fr a persn t be cured befre the criminal prsecutin can be determined. Secnd, the accused has the assurance that he r she can nly wait fr a specified perid (nt mre than 12 mnths) befre his r her case is dealt with. Third, the special hearing prvides the accused with the pprtunity t be acquitted f the ffence charged against him r her. 73 Special hearing befre a fitness hearing 4.22 In New Zealand, a curt may nt cnduct a finding f a defendant s unfitness t be tried unless the curt hlds a special hearing t determine whether, n the balance f prbabilities, that there is sufficient evidence t prve that the accused cmmitted the physical elements f the ffence. 74 4.23 If the curt is nt satisfied that the defendant was invlved in the ffence, it must discharge the defendant. 75 Althugh the discharge des nt mean that the persn is acquitted f the ffence 76, it at least saves the persn frm being detained unnecessarily. 4.24 This prcess ffers tw advantages. It prmtes certainty that a defendant wuld nt be detained fr indefinite r lengthy perids fr an ffence he r she might nt have cmmitted. It als saves the time f the curt and legal services frm hlding a fitness inquiry which may demand time and add mre cnstraints n limited resurces available. 72 NSW Law Refrm Cmmissin, Peple with cgnitive and mental health impairments in the criminal justice system: an verview Cnsultatin paper 5 (2010). 73 See Mental Health (Frensic Prvisins) Act 1990 (NSW) ss 22(1)(a), 22(2), 26, 39. 74 Criminal Prcedure (Mentally Impaired Persns) Act 2003 (NZ) s 9. 75 Criminal Prcedure (Mentally Impaired Persns) Act 2003 (NZ) s 13(2). 76 Criminal Prcedure (Mentally Impaired Persns) Act 2003 (NZ) s 13(3).