The Commission has been asked to review the treatment of people with an intellectual disability in the criminal justice system, whether as suspects, victims or witnesses. This Paper is the fifth paper released as part of this review. The Commission has already published an Issues Paper, two Research Reports and a Discussion Paper. The earlier Discussion Paper focussed on policing and dealt with issues which arise in the initial contact between a person with an intellectual disability and the criminal justice system. This Discussion Paper considers the next stage of the criminal justice process: the courts and sentencing.

This Discussion Paper is the last paper which will be released by the Commission before its final Report to the Attorney General. This is therefore the final opportunity to submit comments to the Commission about this project. The Commission appreciates that the paper is very long and, in places, technical. However not every chapter will be of concern to every individual or interest group. The Commission would welcome comments on all or any part of the Paper.

This Discussion Paper covers the following areas:

Chapter 2: statutory definitions of intellectual disability;

Chapter 3: lawyers and other legal personnel and their dealings with people with an intellectual disability, including issues of legal education and problems associated with obtaining instructions;

Chapters 4-10: the trial: issues arising from the appearance in court of people with an intellectual disability, including fitness to be tried, competence, giving evidence and criminal defences;

Chapters 11-12: the sentence: sentencing, custody and release, including consideration of the custodial and non-custodial alternatives available for the offender with an intellectual disability and their release from custody; and

Chapter 13: issues relevant to the whole criminal justice system such as the particular needs of juveniles with an intellectual disability, and the necessity for co-ordination and provision of services.

The Paper contains 48 provisional proposals for reform. The proposals do not represent the final views of the Commission. The Commission seeks further submissions and comments about the strengths or weaknesses of these proposals and invites suggestions for alternative or additional proposals. Also throughout the Paper are a number of questions for discussion and requests for further information and submissions. These areas are just as important as the proposals, but often point to areas where the Commission requires more input before making more definite proposals.