Visiting expert speaks out on specialist disability courts

A visiting sociologist from Sheffield University has entered the debate about the prospect of specialist courts for offenders with neuro-disabilities.

Nathan Hughes

Nathan Hughes, who visited the University of Otago last month as the William Evans Fellow, says recognising and flagging neuro-disability, preferably when an offender first enters the system, would be a good first step.

“I’m not saying we need a diagnosis within the court system – just an assessment of the problems we need to be alert to. Ideally these conditions would be flagged pre-school but assessments usually don’t cover, for example, the lack of oral language development so there’s no follow-up assessment.”

The idea of specialist neuro-disability courts has been mooted by two senior judges, Chief District Court Judge Jan-Marie Doogue and Principal Youth Court Judge John Walker (LawNews 22 February 2019) for adult offenders with issues such as foetal alcohol spectrum disorder, autism, communication disorder, dyslexia, acquired brain injury and traumatic brain injury.

Hughes won’t be drawn on whether he’s in favour of specialist courts for those suffering neurodisabilities. But, he says, there’s merit in the idea of some form of youth justice system to deal with those who are legally adults (aged 18-25) but are still maturing and exhibiting juvenile behaviour.

This approach has been taken in Germany where the court system treats young adults is juveniles rather than as adults if their offending is of a juvenile type – eg, offending governed by impulsivity, alcohol or peer influence.

“It’s not done with a neuro-disability focus; it’s a thematic approach,” Hughes says.

 “The challenge [with neuro-disability courts] is that if we can do it as a specialist court, should it not be a kind of generic approach to all young adults? How do we decide who will get dealt with in the specialist court, given that we know about the high prevalence levels within this population?”

Chief Justice Dame Helen Winkelmann has expressed similar doubts.

In an interview with LawNews just prior to her swearing-in last month – and with the caveat that she had not studied the issue in depth – Justice Winkelmann said there was a risk of creating an unequal justice system.

“I haven’t really reflected upon the notion of specialist court [for neuro-disability] because it is so prevalent within the criminal justice system that we’d want anything that’s available from specialist courts to be generally available through the mainstream court system,” she said.

“People in the area where there is such a court [would] get a different kind of treatment through the court system than those who are elsewhere.”

Autism and foetal alcohol syndrome are “absolutely endemic” within the criminal justice system, she says. 

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