Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities

A Arstein-Kerslake, P Gooding, L Andrews, B McSherry, ‘Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities’ (2017) 17(3) Human Rights Law Review 399–419

Posted: 17 Jun 2019

See all articles by Anna Arstein-Kerslake

Anna Arstein-Kerslake

University of Melbourne - Law School

Piers M. Gooding

Melbourne Social Equity Institute; University of Melbourne - Melbourne Law School

Louis Andrews

University of Melbourne - Law School

Bernadette M. McSherry

Melbourne Social Equity Institute; Melbourne Law School

Date Written: June 1, 2017

Abstract

Findings of unfitness to plead can result in individuals with cognitive disabilities losing access to procedural safeguards in the criminal justice system. They can also lead to long periods of detention and, in some cases, indefinite detention of persons with cognitive disabilities in prisons and other secure facilities. This raises significant concerns with human rights breaches, including the rights to legal capacity, a fair trial and liberty. This article provides a critical analysis of unfitness to plead regimes in common law and civil law countries in the light of key rights set out in the United Nations Convention of the Rights of Persons with Disabilities. It then examines how unfitness to plead regimes might be reformed to ensure that the rights of persons with cognitive disabilities are protected.

Keywords: unfit to stand trial, unfit to plead, human rights, disability, non-discrimination

Suggested Citation

Arstein-Kerslake, Anna and Gooding, Piers Michael and Andrews, Louis and McSherry, Bernadette M., Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities (June 1, 2017). A Arstein-Kerslake, P Gooding, L Andrews, B McSherry, ‘Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities’ (2017) 17(3) Human Rights Law Review 399–419, Available at SSRN: https://ssrn.com/abstract=3288308

Anna Arstein-Kerslake

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Piers Michael Gooding (Contact Author)

Melbourne Social Equity Institute ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+6183440910 (Phone)

HOME PAGE: http://https://www.findanexpert.unimelb.edu.au/display/person26598

University of Melbourne - Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

Louis Andrews

University of Melbourne - Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Bernadette M. McSherry

Melbourne Social Equity Institute ( email )

Parkville, Victoria 3010
Australia

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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