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Genealogical reflections on the diversion of defendants with cognitive impairment from the NSW Local Court

Conference Paper


Abstract


  • Diversion of defendants with cognitive impairment from the NSWNSWNSW Local Court is typically characterised as a therapeutic, humane and beneficial alternative to the criminal law for a group that is unjustly in the criminal justice system, is vulnerable in their pathway through the criminal justice system, is not amenable to rehabilitative or deterrent based punishment, requires support services to live in the community and has been subject to a history of institutionalisation, criminalisation and segregation. But, diversion is punitive in nature and it applies to defendants who are not convicted, have not been found guilty of criminal offences and who might be unfit to be tried and, moreover, applies exclusively to defendants with disability. How can we critically engage with these aspects of diversion, particularly in the face of homogenous and seemingly impenetrable support for diversion? What is at stake in suggesting an alternative approach to diversion? Through a brief genealogy of the forensic mental health legal system, I offer the beginnings of an alternative critical approach to the diversion of defendants with cognitive impairment. On the basis of this genealogy, Linda discusses four areas that require further exploration – how diversion relates to the criminal law proper, the relationship between danger, criminality and impairment, the notion of ‘community’ and diversion as a tool of therapeutic jurisprudence. Linda concludes with a discussion of how this critical approach might feed into current law reform and human rights debates in this area.

Publication Date


  • 2010

Citation


  • L. Roslyn. Steele, 'Genealogical reflections on the diversion of defendants with cognitive impairment from the NSW Local Court' (Paper presented at the Law and Social Reality: Sydney Law School Postgraduate Conference 2010, University of Sydney, 29 October).

Start Page


  • 12

End Page


  • 12

Place Of Publication


  • http://sydney.edu.au/law/pgconference/PGLawConference2010Program.pdf

Abstract


  • Diversion of defendants with cognitive impairment from the NSWNSWNSW Local Court is typically characterised as a therapeutic, humane and beneficial alternative to the criminal law for a group that is unjustly in the criminal justice system, is vulnerable in their pathway through the criminal justice system, is not amenable to rehabilitative or deterrent based punishment, requires support services to live in the community and has been subject to a history of institutionalisation, criminalisation and segregation. But, diversion is punitive in nature and it applies to defendants who are not convicted, have not been found guilty of criminal offences and who might be unfit to be tried and, moreover, applies exclusively to defendants with disability. How can we critically engage with these aspects of diversion, particularly in the face of homogenous and seemingly impenetrable support for diversion? What is at stake in suggesting an alternative approach to diversion? Through a brief genealogy of the forensic mental health legal system, I offer the beginnings of an alternative critical approach to the diversion of defendants with cognitive impairment. On the basis of this genealogy, Linda discusses four areas that require further exploration – how diversion relates to the criminal law proper, the relationship between danger, criminality and impairment, the notion of ‘community’ and diversion as a tool of therapeutic jurisprudence. Linda concludes with a discussion of how this critical approach might feed into current law reform and human rights debates in this area.

Publication Date


  • 2010

Citation


  • L. Roslyn. Steele, 'Genealogical reflections on the diversion of defendants with cognitive impairment from the NSW Local Court' (Paper presented at the Law and Social Reality: Sydney Law School Postgraduate Conference 2010, University of Sydney, 29 October).

Start Page


  • 12

End Page


  • 12

Place Of Publication


  • http://sydney.edu.au/law/pgconference/PGLawConference2010Program.pdf