Reforming the Fitness to Be Tried Procedure in Ireland to Comply with the Convention on the Rights of Persons with Disabilities
DOI:
https://doi.org/10.19164/ijmhcl.31.1694Abstract
Greeted with unprecedented enthusiasm from non-governmental organisations and states, the Convention on the Rights of Persons with Disabilities (CRPD) has the potential to significantly change how persons with disabilities are treated by the criminal justice system. However, the frosty reception by States Parties to the direction by UN bodies that the CRPD requires the abolition of any procedures that declare an accused unfit to be tried based on mental impairment has meant that this potential has gone unfulfilled.
In this article it is determined that the current law that finds an accused unfit to stand trial removes the voices of persons with disabilities and also deprives them of their right to equal enjoyment of legal capacity, which is protected by Article 12 of the CRPD. It is discussed that where there is an issue with a person’s mental capacity, the CRPD requires that they are provided support to express their will and preferences. Substitute decision-making is not permitted.
It is determined that it is unlikely that the CRPD required a complete abolition of fitness to be tried procedures, however, it was found that the current process used in Irish law could be made more compliant with the CRPD if greater protection was provided for an accused’s access to justice, support when necessary was provided, and the law did not subject defendants found unfit to be tried to indefinite detention.
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