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they were engaged in an action that involved putting something to their lips, taking a
draw and then exhaling, I don't know what that is! But anyway.
Dr Flynn: I'll make an announcement, just so everyone knows the barbecue tonight, very
important, not related to our discussion, but the barbecue is in the Radisson hotel,
on the same street as the coach station if you came from there, if anyone needs directions,
talk to somebody in a purple T shirt but just so everyone knows that's where it's on, the
Radisson hotel.
Chair: Now we're going to start this afternoon's session, the round table, from 2 to 3.30,
Eleanor tells me you have already been introduce to all of the speakers joining us here this
afternoon, and obviously the idea is to get a bit of discussion, to continue the discussion
from this morning and earlier, and to keep the energy going in the room.
So the kind of questions we're pulling together is, the kind of thoughts that are coming to
our mind, I'll ask each of the speakers to maybe give a minute or two on each first of
all, how do people identify that they have a legal issue in your country, and each speaker
will speak to their country, and search for solutions, lawyers, clinics, NGOs etcetera,
and perhaps I'll just go through the panel with that question first, maybe I'll start
with you Michael is that fair? Blessed among women!
>> Thank you very much, I think in terms of the way people identify with access to justice
within my local context, there are two issues here. First of all there is access to the
formal justice system, and there is access to the informal justice system so to speak.
Why I want to say it like that, is that a couple of weeks ago the Chief Justice said
something very interesting, he said 95% of people in Kenya do not access the court, it's
only 5%. So the big question is in terms of access to justice where does the 5% go to?
So working around issues of access to justice there would have to be two, you have to look
at the formal justice system, that's the courts, and you also have to look at alternative means
of dispute resolution and also traditional means of dispute resolution within our community,
thank you.
Dr series: I'll talk about England, my research focuses in particular on issues on care services,
homecare and home supports and also care homes, residential care and hospitals, I think one
of the issues that certainly came across for example in studies by Equality and Human Rights
Commission and other people, is often issues that arise in the context of care are seen
as being interpersonal quality issues rather than necessarily legal issues. Rights awareness
is often quite low.
The Equality and Human Rights Commission has also found the rights awareness is particularly
low among people with disabilities so I think some work needs to be done around public education
that people are more aware of rights and remedies to vindicate those rights.
There were certain pockets of interests though, so England false in the Council of Europe
it falls under the European Convention of Human Rights, Article 5 is an interesting
mechanism, the right to liberty, it contains specific duties to inform people of their
rights and how to use real mechanisms, it's an interesting architecture because it creates
a situation where people know how to challenge authority.
We're seeing more and more cases under Article 8 right to private life, where the courts
say to local authorities and NHS bodies if there is a big dispute blowing up, it's not
acceptable to wait for the person themselves to take you to court because of the imbalance
of power, imbalance of rights awareness, you should take these types of disputes to court.
So there are a number of strategies we can look at, these generic rights awareness and
also certain types of issues where people who are in public service need to have stronger
duties to inform people when the disagreement blows up, how people can challenge that.
Doctor Flynn: You're the more practising lawyer here I'm not sure I should talk about this,
but in the Irish context I think some of the things Kelly mentioned this morning about
people, it would never occur to people to go to a lawyer I think that's quite a universal
experience, we would have that also, and I think we don't have a huge number of disability
law clinics, we do run one here in NUI Galway, for members of the public who have questions
about disability law, but we don't have student practice orders so our students can only provide
legal information and can't actually work with people and represent them.
So that's one of the issues I think that comes up. And I think that there are NGOs and some
DPOs who people go to first maybe with a legal issue and it's only if those NGOs have good
contacts with lawyers they trust that have worked on theses cases and have knowledge
of representing people with disabilities, people like Teresa that there is a chance
of people being able to pursue a case, that's usually a huge barrier for people in the Irish
context.
Ms Lord: In the US context this is echoing what Lucy said, there is a real lack of accessible
information about how the justice system works and the rights and responsibilities of people
with disabilities within the justice system and there's some research done a while ago,
on the knowledge of persons with disabilities awareness of persons with disabilities in
the US about Americans with Disabilities Act, and it was sort of shocking in that its results
were disclosed that fewer than 15% of those persons surveyed knew what the ADA was, so
I hope it's a bit better now if we were to do that survey, it would be a bit better than
it was then.
But we do have a lot of awareness raising to do. At the Burton Blatt institution where
I work one of the things we're doing, we have a big project trying to promote access to
lawyers and legal services and representation in the context of disability benefits through
social security, because the percentage of people who have access to lawyers in that
process, it's supposed to be very accessible it's not, it's a very complex process, and
most people are denied, the vast majority of people are denied initially when they apply
for disability benefits, and so what the Burton Blatt Institute is doing now is providing
legal representation for persons with disabilities in the appeals process, in their appeal of
the rejection of the disability benefits claim, and we know when persons are represented and
have legal counsel, their rates of success go massively up.
That's in its early stage, it's going for about a year but they are filing over 200
briefs every month in that process and it's a really important area of advocacy that has
not really been addressed much in disability law clinics in the US.
Ms Arstein Kerslake: My experience with access to justice in the US was more with domestic
violence and abuse, so different area to Janet, and I think in this area in particular across
different areas of access to justice the issues of voice and choice as we have been talking
about are key.
The first one is when someone has survived domestic violence or *** abuse, just getting
heard in the first place by anyone and then by the police is another barrier and then
once you make it past the police if the police actually listen to you, then the prosecutors
actually taking you seriously is a whole other barrier, and it's both having your voice heard,
having a space to express what happened to you and then having your choices listened
to based on what you want to happen after that, and I know personally and through work
that I did, those are huge problems in the US and I imagine actually that's a problem
that exists in many other jurisdictions as well.
And it's one area that I think really needs to be looked at is evidence law, and how testimony
is taken and the different interactions between the parties in the system are really in many
ways working against people with disabilities and people with cognitive disabilities in
particular, psychosocial disabilities and intellectual disabilities. Many people I know
with intellectual disabilities especially are just told flat out that their testimony
won't be taken seriously in a courtroom and won't be eligible for being in a courtroom,
so whatever they have survived isn't even prosecuted on that basis, so that's one of
the key problems that I have encountered in the US anyways.
Ms Kayess: I'd like to echo Lucy's points, a big issue in Australia too about the residential
context of access to justice, because what does happen is, as Lucy was saying, if there
is domestic violence or *** abuse in a residential care situation, that its treated
administratively and not even defined as a criminal or justice issue, so many times it's
the victim who then gets removed from their residence rather than the perpetrator.
We have a fairly good community legal structure in Australia, poorly resourced of course,
but it has historical flaws in terms of funding, both in terms of the amount that is funded,
but in terms of providing specialist legal integrated specialist legal support, free
legal advice with people with disability, there are only two holistic specialist legal
centres in New South Wales in the State that I'm from, and they are defined on disability
type for intellectual disability and psychosocial disability.
There is no generalist integrated specialist disability, free disability legal advice services
in Australia. So it's very problematic, though the productivity commission is at the moment
reviewing access to justice services in Australia, and we're hoping that there will be a better
integrated process to come out of it, both after the dodgy historical structure of funding
around the services, in particular disability specialist services, but also streamlining
the primary referral process from disability advocacy organisations to give a path from
DPO advocacy organisations through to secondary casework, community free community legal services.
Chair: Thank you. And just, I might just add an observation and thanks to Anna Lawson for
this earlier this morning, we were talking about access to justice around the world,
just comment to one another how often in certain areas of law there is a separation between
academics and researchers in the area and practitioners in the field, I have to say
in my experience in the area of disability law this emerging area, there is a greater
deal of participation and mutual co operation, and equally what comes across in the approach
is the multidisciplinary area.
I'm absolutely certain the majority of people in this room are not probably lawyers, so
the importance that other disciplines bring to informing the legal analysis or a structure
or participation is absolutely vital, and Eleanor made the comment as a practising lawyer,
a vital person that I encounter when I'm taking instructions from a client is of course their
advocate, or the person who is interpreting a complex report in easy accessible language
for them etcetera, and that's vital.
So there's very much an inter relationship between practice and multidisciplinary. And
I think perhaps other areas of law can learn things from the way we're proceeding in this
area.
But I think on that question that I gave to the panel in this round table session, is
there any one observation from the floor, just to keep us in communication with one
another? If not I'll move on? Yes one observation, I saw this gentleman up in the middle with
his finger up first it's almost like an auction he is going to buy the Renoir here behind
me! This gentleman, I think he earlier told me he is from Belgium right. Then we'll prepare
for the next question for the round table participants after this.
>> I have one remark to make, and I have two suggestions based on that. Studying and monitoring
the CRPD in Belgium in the past year, what we noticed is something that has been said
many times in this course as well, that there is a very low awareness among persons with
disabilities and other stakeholders with regard to their rights.
Now if we ask participants in a study thousand change this? You get what I would call stereotypical
answers like we should have awareness raising campaigns and things like that. Personally
I don't believe in this. And I think given the European context you should also provide
more attention to two main actors, or two solutions for this problem of low awareness
and therefore low participation in legal procedures.
First is civil society, I think in places like Belgium with no history of welfare State,
society is hugely important and it's a completely different context than many Anglo Saxon countries.
And second, I think we should also be aware of the importance of policy measures to prevent
legal action. So I think by designing policy measures in line with the Convention States
can avoid that people take individual action to claim their rights, so in the field of
work for example, a number of measures have been already taken in European countries and
more measures can be taken, that can avoid that people have to individually engage with
law and with potential discrimination.
Chair: Thank you very much for that observation, certainly there is food for thought in that.
Thank you very much.
Now the second question that I'm going to put to the panel, just to try and pull the
threads together from this morning, individually, what are the experiences of lawyers, practising
lawyers, judges and jurors with disabilities in your countries? Are there legal barriers
to becoming a lawyer, judge or juror, if you have a certain disability?
Maybe since the microphone is down at your end we'll start from this end up.
Ms Kayess: Australia doesn't have a really good record of having people with disability
in juries. It's a really crap record of having people with disability in a jury! I'm one
of the management committee members of a specialist disability legal centre that has a human rights
law practice as well as discrimination law practice and we're currently running several
cases in a couple of states in Australia on electoral access, jury access, for people
who are deaf.
And oh, the judgements we've just recently had have been very heart breaking in terms
of these nonsensical arguments about having a 13th person in the jury room, it's just
gob smacking!
Luckily we're still in lower courts, so hopefully on legal review we can get a better judgement,
but if these judgements stand, and in Australia unfortunately disability discrimination hasn't
had a good run in the senior courts over the last ten years.
If an adverse judgement stands in the High Courts I don't see us getting people into
juries for a good while, though they are looking at individual communication through the UN
but everybody's aware of the timeframe of that.
In terms of studying for law, well I'm a lawyer, not that that necessarily says anything, other
than the fact that I'm a lawyer! Like all areas of academia, it's the historical disadvantage
that is the greatest barrier to people with disabilities, getting through into the law.
Until we have addressed inclusive education, I think we'll always see lower numbers of
students with disability participating in law programmes. Though I've taught law for
ten years, and I've seen an increase in the cohort of students with disability that I
teach in the undergraduate programme and the J D programmes so it�s increasing.
The judiciary, well ... I know our friend from Brussels says it's trite, but God could
they do with awareness raising, seriously could do with awareness raising.
Ms Kerslake: I'm not actually practising so I'll let Janet answer the question, but I
will mention one big barrier that's kind of an indirect barrier is that the individuals
with disabilities Education Act does not provide any significant right to secondary education.
And I think that's a big barrier for entering these kind of professions that require high
levels of education. So I think, take it away Janet.
Ms Lord: I'm not really practising in the US either but! I can refer to some research
we done on access to court for persons with disabilities obviously that's an important
area, we looked at access to court facilities, access to court procedures and policies and
court programmes and services.
There has been some interesting cases that have come down the line on one serving as
a witness, we had a case in Georgia where a witness who was blind testified before the
jury in a criminal trial for ***, the court held that the jury could properly rely on
the testimony of a witness who was blind.
This reminds me to link back to the political participation session this morning of some
incredible, incredibly hostile confrontation that I had with a head of a civil society
organisation in an unnamed country, who insisted to me that it was absolutely absurd for a
blind person to serve as an observer in an election observer mission. He couldn't wrap
his head around that at all. He further said he would allow persons with physical disabilities
to be observers but only in the morning because the count could go quite late into the night
and he didn't want those poor people to stay up all night!
Anyway, another couple of cases just to highlight, serving as a juror, we had one case, again
a lot of Georgia cases, a criminal defendant argued a juror who was deaf in the criminal
trial should be disqualified from being a juror and the court held the trial court properly
denied the defendant's motion to disqualify the juror who was deaf and the juror's inability
to hear is not a disqualification.
Another case the court held categorical exclusion of a person who was blind from jury service
was a violation of federal disability law. We had other interesting cases of serving
as court observers, and accessibility of court serves.
In the US, even though we had ADA for a very long time, we still have implementing regulations
regarding accessibility of courthouses and court services, are still in the draft stage,
so they haven't even been adapted, this is still a really rather new area surprisingly.
In the context of international co operation and development programmes, the UN, US government
putting millions and millions of dollars into court reform across the world, very often
they are not thinking at all about issues around access, so there's a lot of work to
be done.
Ms Kerslake: I accidentally said secondary education, I meant post secondary! IDA doesn't
provide a significant right to post secondary education, yes.
Dr Flynn: This is one of the things I'm really interested in so I'm glad we have this question.
I think I'll start with the juror stuff, because similar to what Rosemary described in Australia,
we have had strategic litigation from a deaf juror who was excluded from a jury here, unfortunately,
it's quite confusing judgement that was produced.
Ms Kayess: It must be required!
Dr Flynn: It says she should have been excluded at the point of entry, but having the interpreter
in the room could violate the 13th person in the jury room common law principles.
I know Michael Farrell who works with free legal advice centres comes in and lectures,
has been active in finding other deaf jurors to go and challenge this with, I know it's
ongoing.
But not just for deaf jurors, there is still a provision, it was reformed in 2008 now it
says persons who have either an incapacity to read or enduring impairment such that it
is not practicable for them to perform duties of a juror should be excluded.
Which is not amazing but not as bad as it used to be, but interestingly it hasn't reformed
a piece from 1976 act which says a person who suffers or has suffered from mental illness
or mental disability and because of that is either resident in hospital or in other similar
institution or who regularly attend for treatment by medical practitioner is not eligible for
jury service.
If that was interpreted strictly there would be a lot of us not eligible so I don't have
any concrete examples of someone being excluded really on that basis, it may have happened,
it may just be that I don't know about it. So that's interesting.
I also want to draw the attention to the idea about lawyers and judges, again I suppose
there is no, there many formal barriers but practical disadvantages of going through legal
education and into practice can be a bit tricky.
Even more so is some of the more invisible disabilities, and especially thinking of psychosocial
disabilities sometimes, I wonder Michael Perlin writes about how many judges have psychosocial
disability if only they would admit it! That's quite an interesting thing to think about,
we don't have much visibility or representation of people in positions of power in the system
with a disability, maybe if more people identified we might have, so that's something to think
about.
Dr Series: I should say my research on access to justice tends to focus more on clients
rather than lawyers and judges which I will remedy straight after this summer school!
I would say it's a situation in England is not dissimilar to the situation Eleanor just
described for Ireland, there is a general problem on the judiciary in the UK around
the representation of people from all kinds of marginalised groups, there are tiny, tiny
number of women, particularly in senior judiciary, representation from black and minority ethnic
groups is low, there is a huge amount of attention paid to that but I haven't noticed a huge
amount of attention around the problem of representation of people with disabilities
amongst the judiciary.
We have had quite a lot of changes to our tertiary education system, university education
system in the UK and that I think will probably disproportionately affect law students with
disabilities or would be law students with disabilities.
There are currently cut backs in supports for people with disabilities in education.
We in the UK just introduced very high tuition fees for attending university and in the UK
people with disabilities are disproportionately likely to come from low income background,
so that will disproportionately effect them.
But there are some glimpses of good news in amongst all this, the bind of barriers Eleanor
was talking about for people with mental health problem sitting on juries has been just removed
in England, we had the mental health discrimination bill 2013 that removed that barrier, that
was great. And actually a knock on consequence of debating the mental health discrimination
bill was that a large number of elected members of Parliament stood up in Parliament and spoke
about their own personal experiences of mental health problems to try and combat stigma,
so that had a more inclusive conversation.
The Law Society who is the body representing solicitors is doing some work on supporting
lawyers are disabilities and I'm pleased to say some law schools, I can't speak for all
of them are doing really good work supporting students with disabilities, so I am at Cardiff
Law School, we have a disability officer who looks to make sure relevant accommodations
are made to support people.
We have some fantastic students one of our students Rhys has autism and just addressed
the Welsh assembly about being a student with autism and how it's a strength being able
to organise information and learn large quantities of law. So it's not brilliant but there are
glimpses of light in there. >> Okay I have to admit I don't have a lot
of experience in terms of representations in the judiciary and that, but I think one
of the things I want to say is about opportunities to education, that persons with disabilities
do have a lot of barriers in our communities, be it poverty, be it stereotypes they are
not able to access education, so that could be a very big barrier in terms of want to
be lawyers in our society.
The other thing is that they tend to take longer sometimes to complete their education
in the education system, so one of the challenges is then what would reasonable accommodation
look like in that particular context? Which means I might not take the five years to complete
my university education; some of the students have actually discontinued in relation to
that particular basis. I think that would be my perspective in relation to education.
Chair: Thank you Michael. Now I'll take one observation from around the world.
>> I just want to make a couple of points, one of them is that certainly in Australia
and I think, certainly from our study last year in England, one of the issues was that
certain lawyers get named around the communities as specialist in working with people with
disabilities.
I think I think understand that that is very reassuring for people, but at the same time
I think it leads other lawyers to just absolve themselves of any responsibility for working
with groups of people with disabilities, and I think that's a problem that we need to address.
I'm not quite sure how, but I'm interested in whatever the people has got to say about
that.
The other point I want to make is that somehow educating the judiciary, having more people
with disabilities as judges is a good start I guess, but somehow finding ways for professional
education to be used much more strongly with judiciary, I remember repeatedly judges and
magistrates confusing intellectual disability and mental health issues and completely they
just couldn't see that there was any difference. So I think there is a lot of work to be done
there. >> Thank you I talked to Eilionoir about it
earlier, we have a case that is, there is lay judges in Norway and some were laid off
their work, a blind one and a deaf one. It's all gone to Supreme Court and what they are
using as argument for laying them off is you have to have a good enough understanding of
Norwegian to be a lay judge and they are using that as a comment on how they can not understand
what's the court proceedings properly, if they can't see or can't hear.
So that's going up to the Supreme Court now, to see what they do. With reference to the
Convention that we ratified last year, but then we haven't ratified the protocol, so
we don't have anywhere to go after that but we'll see what happens.
>> Thank you I just want to say the problem is not with the litigation or the judiciary,
it's the whole judiciary system, how people with disabilities can access the judiciary
system or access to justice. It's not only about court and judges, it's also about complaining
in the police centre, it's often about being in prison as criminals also, it's also about
being as witnesses in the court or judges or lawyers, or anything.
The whole issue is related to three categories of obstacles, the physical obstacles, the
barriers including whatever about accommodations and accessibility, we know it all from the
book and the paper or whatever, the courtroom or even the stairs to go up to the court or
to the police centre to make a complaint.
Also it's about attitudes and this is a very large cultural issue. Attitudes usually make
people you work with unable to accept you, they create walls not only barriers, walls.
They don't, in my country they don't see a blind person as a judge. They don't agree
as blind person to be a judge. They don't see a normal, a blind person, a normal thing
to be a lawyer.
I studied psychology, I studied social work, I studied management, also I studied law,
but whole thing is possible, but when I came to finish law everyone was WOW, blind and
have a law degree, that is what my friend a little while ago mentioned, that they can
not access. We can access education.
Education is a big, again I had to translate, re type every page of 35 courses I had to
take into word format again, nothing was available for three years I had to suffer and to pay
a lot of money, only for copies of books.
The fourth issue, besides culture, attitude and things, physical accessibility, also the
institutional things, the laws, the laws and procedures, the regulations. They don't allow
people with disabilities usually to access the system, because the law is a big source
of rights, a source of rights, if they are not really well designed and well done they
will really exclude instead of include people.
The fourth and the last point which is people with disabilities themselves. They usually
keep silent many, many times, and this has to do with a lot, a lot of factors, the priority
of the country, the priority of the people, the priority of the families, which is best,
which is now an issue, what issues can be delayed and disability varies in its level
of existence on the ladder or scale of priorities from one hour to another sometimes thank you.
Chair: A lot more hands coming up on that, I'd certainly make the observation when I
was studying law there was not information accessible for students with a disability
who maybe needed textbooks in Braille or whatever, and they were often dependant on a colleague
to read the content of a law book to them and put it on tape or whatever.
So huge advances need to be made in that area, and certainly those observations are all apt.
I see two hands up at the back, I see Anna Lawson and behind Anna there's another lady.
Prof Lawson: Thank you very much, really interesting question. I think one of the points that may
be worth making here is that there are often powerful organisations or if there respect
then they there could be, at national level, like in the UK we have a social for disabled
lawyers and also the social of visually impaired lawyers. I know they have campaigned for participation
of disabled people in the justice system as lawyers and judges and I think it was partly
due to their influence that we now have a blind judge in the UK who received quite a
lot of attention because it was quite controversial a few years ago whether he should be appointed
as a judge, he was the first UK blind judge.
Chair: Thank you Anna there was a young lady behind you who wished to make a contribution.
>> Yes I just wanted to fill in on that because the Supreme Court in Norway ruled that a blind
person cannot be a lay judge. So that has actually happened and they did no reference
to the CRPD at all, so it will be very exciting now to see if they will go to the European
Court of Human Rights, because there is no other option in Norway now.
Chair: Thank you very much, the last one, the gentleman in front, this is the last one.
>> I have a very different opinion to make about the access to justice about lawyers
with disabilities and judges with disabilities. I am from India and I feel that problems are
everywhere but you should see everything as cut throat competition and for lawyers are
disabilities all the problems are there but if you can prove yourself there is no problem.
I am a practising lawyer there, I have done a number of cases, I have got driving licence
for deaf people, insurance for disabled people, and a number of cases we have done even more
than 100 lecture errs have been appointed.
So although there are very few judges with disabilities as such, I mean I do not remember
who are not in the High Court or Supreme Court, but I must say that judiciary has done a commendable
job in realisation of rights of persons with disabilities in India. In terms of psychosocial
disabilities and intellectual disabilities there may be very few judgements, but yes
for physical disabilities, from access to right to vote and other things, you can find
a number of judgements, so judiciary is very progressive in India, and whatever rights
have been ensured in India is through court and not done by any other system.
So lawyers with disabilities are also performing very well, apart from me there is Mr Kasinga
and both of us have been doing a lot and persons with disabilities are very vocal there, they
are able to make their presence felt everywhere, despite the fact that we are not in a political
system, we are not in Bollywood, Hollywood anywhere, lay persons with disabilities are
not ignored. Even once the government was trying to introduce an ordinance to bring
about a new act which the persons with disabilities were not feeling up for. They felt it was
better than the new act so government was trying to force its ordinance, persons with
disabilities demonstrated. Police came very heavily on them, and the government was forced
to not to bring the ordinance. Thank you so much.
Chair: Thank you very much, I'm going to move on now to the next issue to put to members
of the round table here, Michael actually referred to it in his answer to the first
question, talking about access to justice and the global perspective what about alternative
dispute resolution mechanisms and informal justice systems in your own countries, be
they community, tribal, religious, whatever perhaps we'll start with you Michael?
>> Thank you, that's why initially I said for us, the approach has to be two pronged,
you really have to look at the kind of informal systems of dispute resolution in the community,
even as we try to compliment that, of course with the formal justice system.
Basically people live in the communities and a lot of disputes when they arise in particular
communities, probably you are going to go to a village chief, to the village elders
or any other local administrative organ to be able to address that particular issue,
then remember that this is a low resource setting.
So if you are talking about fundamentally people going to court, where the system is
adversarial, the court process is complicated, then of course informal systems of dispute
become very, very important.
In our country this is something which is actually recognised within our constitution.
And even in the legal aid that we have been discussing, that is one of the avenues that
have been recognised in terms of access to justice.
Now the only problem is that sometimes of course informal systems of accessing justice
have their own challenges. I remember one case we were dealing with an issue of land,
and this lady, the family wanted to disinherit her from this piece of land, she had a psychosocial
disability. So when she goes to the chief of course the chief thinks she doesn't have
capacity, then she had to go to a sitting of elders who basically consist of all men,
so at the end of the day there was a lot of prejudice and now we had to resolve actually
to look for people who would actually support us to take that particular issue to court,
so there are also barriers in terms of traditional means of dispute resolution.
I think when we are having discussions we say that sometimes in Nairobi we say that
culture can be changed in time, whether we want to use public education for example to
speak to the elders to understand how to deal with things, informally in the context of
the constitution or other human rights framework, that is very, very important, that behind
of public education, and engaging with those informal system, or whether you want to use
for example statute laws to be able to remedy some of the injustices that are actually inherent
in the formal justice system.
For example we had a big issue of female genital mutilation in Africa which was a cultural
practice; again you have to enact the law especially when those kinds of cultures are
repugnant to natural justice or against the constitution. So what I want to say is that
they are very, very important, they are very, very effective, but then we also have to look
at are they within the general human rights framework, within our community, and are they
repugnant of course to natural justice and the rule of law in that particular community,
thank you.
Dr series: There's growing interest in England at the moment in alternative dispute resolution,
I'm sure there is true in a lot of countries because of cut backs to legal aid, as formal
justice becomes more inaccessible for financial reasons there is more interest in other methods.
The government is encouraging people to use mediation, but cash is a barrier to mediation
as well, mediation costs money so that's not always a great solution. There is growing
use of mediation around disputes relating to legal capacity issues, care and welfare
and health issues, I think we need to on the whole if you can avoid going to court that's
a good thing, but we need to be very, very cautious here to make sure balance of power
issues are addressed and I think that applies to all kinds of users of mediation services,
applies across the board but it does apply also to people with disabilities and I think
there's a real need for guidance, particularly when legal capacity is concerned, about what
a resolved dispute looks like, is it resolved when everybody is in agreement except the
person with the disability?
And also sometimes trying to divert people away from extra legal mechanisms can create
more barriers to justice when you don't really need to.
We also have an ombudsman in the UK, where you can take complaints, there are all kinds
of ombudsmen, they tend to be slightly more accessible than formal lead procedures you
don't have to fill out so much paperwork, there are less rules and regulations on who
can help you make the complaints and access the services, it's much more informal, there
are still barriers there, plenty of studying showing all kind of barriers around awareness
and confidence and use around the ombudsman.
One interesting growing area is the use of advocates, so there are a number of studies
which are suggesting that where people have access to independent advocacy and the role
of the advocate is to help them express their wishes and participate in the process that
in itself can resolve certain types of dispute so people feel listened to and it can make
it clearer what a person wants, so advocacy is also an interesting mechanism that can
sometimes divert people away from the need to go to court.
Dr Flynn: I think alternative dispute resolution is an interesting way of looking at participation
and inclusion of people with disabilities. I know in the deaf juror strategic litigation
case for example they tried to argue because sign language interpreters had been used for
mediation particularly in family law cases it showed they could perform this role without
interfering with the fairness of the process and could be impartial and independent and
maintain confidentiality, although ultimately that argument didn't quite succeed in that
case.
I don't know as much acid' like to know about informal justice systems but they fascinate
me, I was lucky enough to have a masters student last year who did her thesis on *** violence
against women and girls with disabilities in Zimbabwe and looked at the informal justice
system and how disputes get resolved which was interesting, some of the issues she came
upon when she interviewed people, the ideas about what actually gets done, what is the
justice in that situation, so often if someone reports that they have experienced ***
violence or they have been ***, the resolution will be for the two families to work together
to come to an agreement, sometimes the agreement is that the two people should marry, sometimes
it's compensation, financial or otherwise.
So I agree with Michael it can be a really excellent form of executive access to justice
but we need to look closely at what are the principles guiding that and can we do more,
again peer education in that would be really, really helpful just as helpful as educating
the judiciary and the best way to do that is hear from peer judges who understand how
to communicate with people and be flexible and accommodate different requirements.
I would just say while I think the informal justice system in many countries will be the
first port of call for many people, there should be a clear delineation when you can
exit from the informal justice system when you feel it's not achieved the outcome you
want and effective access to the formal justice system from that.
Ms Kayess: AD R as Lucy indicated is a growing area in the justice system, a major piece
of national legislation has written into the legislation that people have to go to arbitration
in the process under the legislation, so they are directing all complaints under the national
disability insurance scheme through the AD R process.
A bit like Eleanor, we don't have an informal justice system structure, they we do in indigenous,
in our first people's community, we have court circles. And there's a large representation
of disability within our indigenous community, of prevalence of about 37% in the indigenous
community of disability.
There's been no formal evaluation but anecdotal evidence suggests that some of the circle
courts can be very good for diversion practices, for indigenous Australians with disability
in the justice system.
People with disability are highly over represented within the justice system and unfortunately
within our indigenous community it's even higher by the representation, and the diversionary
practices that are in place are generally very inadequate.
It would be good to get a better sense of how the circle courts go, if they are making
a significant difference, but as I said, at the moment it's really only anecdotal and
we don't have a lot of concrete evidence about it, but it would be interesting to see. Because
in the area of intellectual disability people would get caught in the justice system for
the simplest things, generally for revoking bail, for things that have come up, like unpaid
transit fairs and because the bail conditions don't get explained or fines don't get explained
you then end up with a person in the criminal justice system for the simple thing of not
knowing about paying a fine for not having a travel ticket.
And once they are in the criminal justice system, it's very hard to get them back out.
Chair: Thank you very much Rosemary, that's so very, very true. And I remember saying
to a person with a learning disability who was constantly just not able to turn up in
court on time, and there was constant bench warrants issued for his arrest, it was really
just this whole thing about attending to time and understanding 10.30 on a Thursday morning
is 10.30 and if not ... and suddenly somebody finds themselves with 20 or 30 bench warrants
which is disastrous.
Ms Kayess: One positive thing we do have in New South Wales the state I am from, is a
court support programme that's run by the intellectual disability rights service, and
the court support programme is about providing a court support person for a person with an
intellectual disability that has got themselves into the justice system and that person helps
them deal with all that, it's a huge programme, in terms of pro preparing people for their
particular court appearance and during the process that happens afterwards.
It could do with a lot more funding and it could do with being spread much more widely,
both in New South Wales and throughout Australia but it's an excellent programme, the court
support programme.
Chair: Thank you. Just in terms of moving onto the next issue, we're going to talk about,
which is in the criminal system, but maybe reminding us that we were discussing the alternative
dispute mechanisms, emphasis on mediation and informal etcetera, in Ireland we have
an emphasis now on trying to develop the mediation services and going to court as a last resort,
so perhaps one or two observations now from anyone who would like to give us an observation?
>> I just want to add on what Michael says about alternative dispute resolution and say
that Kenyan national commission on human rights runs a programme that is culture and human
rights and basically focuses on the various groups within the community and what we do
is to make sure this traditional mechanism are able to be trained on issues of human
rights and when they are making their decisions they know that they should not go beyond this,
because we are going to invade human rights.
And we have done with two traditional, what we call couples of elders in the community,
and one of the success stories of this intervention is about the female genital mutilation and
in the next programme that we are running for legal capacity is one of the issues that
we have plan to do, to make sure now the advocacy we did on issues of genital mutilation we
move forward on issues of legal capacity, and this will ensure even when couple of elders
make decisions, because persons with disability are not featured a lot in the discussions,
then they are able to know what happens in the community on issues of persons with disabilities.
Chair: Thank you very much, that's very innovative work there in Kenya. Okay. We'll move onto
the next another question? >> I would like to just maybe refer to the
Zambia scenario, the informal sector more like Kenya, there is a lot of paralegals;
we have a population of 1 million and lawyers of 1,000 it's almost impossible to get representation,
most of the people use paralegals for mediation and other things, but what I have realised
is the paralegals themselves lack support.
Like this issue of disability, even in this conversation we're talking at very high level,
so I wanted to know from Michael if there are deliberate policies in your country that
we can learn from, to empower paralegals? >> One of the things that we do within our
peer support groups is also to identify people who can work specifically with what groups
as paralegals within those particular groups; people were creating a relationship of trust,
people who understand the issues of the persons at that particular level.
The other thing is from policy perspective, in terms of what I'm talking about, what we
have done is we have established justice advisory centres within the community level and these
justice advisory centres are supposed to be manned and run by paralegals and part of their
mandate is to go into the community and sort of pick out issues that are happening in the
community, bring them to the justice advisory centres, if it is something that be mediated
and dealt with at that particular level it is okay, if it is something that did have
to be taken to court then support is provided at that particular level to be able to take
that issue to
So that's basically approach from practical perspective and we'll look at it when we are
legislating on the legal aid bill.
Chair: Thank you. I'll just any further contributions on this? I think the common theme is legal
aid bills, resulting in cut down on resources in Europe and a drive to alternative mechanisms
okay the gentleman at the back. >> I have one apprehension on this alternate
system, if suppose I am a victim of *** violence or a victim of *** and I am to be
compensated or maybe married to a man who committed *** on me, it actually puts at
least women with disabilities in more problematic situation, usually what it will lead to, that
it will basically force all persons with disabilities to compromise somewhere, because otherwise
a person with disabilities are in anyway considered I will use this term, because we are basically
told not to use, vulnerable. People would say why are you going to court, are you respecting
the fact I want to prosecute the person? It is not my choice, I do not want to marry that
man, I do not want to receive compensation, I want to prosecute because it is a deliberate,
intentional error which the person has done.
But if this ultimate mechanism comes into being, I think being a person with disabilities;
I don't know to what extent I will be advantaged in this position.
Chair: In discussing alternative dispute mechanism it is should be clear in any legislation or
statutory framework there are certain circumstances which would never come in that system, such
as criminal offences, *** etcetera, maybe but Eleanor or anybody else wants to contribute?
Dr Flynn: I should have said that, my student found while legally speaking these informal
mechanisms weren't suppose to deal with these kind of cases they were suppose to refer them
to the criminal system they were dealing with it anyway because the families were coming,
but you're absolutely right Teresa about needing to clearly delineate and have a right of exit
from the informal justice system.
Chair: Of course alternative dispute resolution system are not compulsory, while a court may
say have you tried resolving it elsewhere, somebody says I want to go to court anyway
because I think I'll get a better hearing there or whatever.
But certainly there is a lot in it and practising lawyers will say that if you can use settlement
which is how 90% of cases are worked out anyway it's better for adjudication and give people
ownership of solutions.
Now we've spoken about the education process, about access etcetera across the globe from
all the panel here, now the next issue we'll look at, it was touched on this morning, just
to pull it together, what about where people with a disability are perhaps offenders in
a system, about issues of fitness to plead, requirements in the course of a trial, post
trial, sentencing, then if that person is convicted, detention, places of detention,
reasonable accommodation it's and unfortunately in practice I have often seen that it is only
when a person with a disability has been convicted that in fact they have had access to a treatment
regime that they didn't have previously. So I look forward to all members of the panel
giving their contribution on that. Maybe we'll start down at the far end again with you Rosemary,
is that all right? We'll talk about that.
Ms Kayess: Fine for me to start, once again Australia has got two cases that are very
prominent at the moment within Australia but that doesn't mean that that is all the cases
that are worth noting.
Several others across Australia those these two cases, northern territory is Marlon Noble
and Roseanne Fulton, these are both cases of indefinite detention resulting out of being
unfit to plead.
Marlon Noble was in Jane for 10 years, he was never convicted. It has since turned out
that he did not commit the crime that he was accused of. But Marlon is now under 24 hour
watch with a disability support worker that he has to be in line of sight of for an indeterminate
period of time.
So whilst Marlon is now out of jail, he is still being constrained in his lifestyle in
some way.
Roseanne Fulton is an incredibly sad tale but yes picks up the point Teresa, she didn't
get help she needed until she got into the system. She had been physically injured by
people that were using her for sex, so she couldn't flee them, and she was then able
to get treatment since she's been incarcerated, for those injuries that were perpetrated on
her.
But again it's come from simple fines and an escalating of petty crime that has ended
her in this situation where she is now in an indeterminate period of detention and it's
unclear what the options can be for her, there is debate, even within her legal team, about
what should happen.
What has been the result of some of these cases of indefinite detention has been the
creation of disability justice centres, which I'm really embarrassed to say, Australia,
two states have gone down the line of and a third is contemplating and basically what
they do, they have built jails with different titles to house people with disability who
are not convicted of crimes. It raises the question about whether people would be better
to have a well resourced criminal trial process where they are supported through that process
and to actually have their day in court so to speak.
Whether we could get to a situation where our justice system is enlightened enough and
resourced enough and people would be supported, both legally and their disability supports
as well, is unknown, but it really does raise the question that whilst we have the unfit
to plea mechanism, that people will be lost in the system. And that's a sad indictment
on our justice system.
Ms Kerslake: I think interestingly a lot of the issues that come up in terms of people
with disabilities that are defendants, or are involved in the criminal justice system
in that way, as convicted criminals, a lot of the issues are related to the legal capacity
actually, and they actually bring up bigger questions about the way the whole criminal
justice system works and whether it's an effective system in general.
And one of the big issues which I'm sure some people in the room are already familiar with
is the insanity defence, and the right to legal capacity in Article 12 so the right
to legal capacity is both an equal right to legal rights, to be a person but also to be
an actor before the law, which means equal rights and responsibilities.
And people have argued, including Tina Minkowicz that that requires abolition of the insanity
defence. I think that's a good argument and there is also other good arguments for the
abolition of the insanity defence, one being that it results in indefinite detention, similar
to what Rosemary spoke about with the unfitness to plead issue.
Indefinite detention, not in a prison but in mental health treatment facilities or often
times longer detention than would have been allowed if they had actually been convicted
for the crime.
So these are big problems, the other thing is the insanity defence, relatively rarely
used in comparison with the number of convictions that are done.
So I think this does raise larger problems in the criminal justice system than also with
why do we need the insanity defence, shouldn't we have our criminal offences constructed
in such a way that the intent requirement within them, the mens rea actually encompasses
the issues, that that intent needs to be there in order for the person to be convicted of
a crime?
And the other thing I just want to raise is in the US in particular I know studies have
been done recently highlighting that there is a vast new disproportionate representation
of minorities and people with disabilities in the prison system.
So if insanity defence and similar things were meant to not hold people with disabilities
responsible or somehow keep them out of the criminal justice system whether it's right
or wrong it's not serving that purpose anyway, so those are just a few problems that I want
to highlight that are probably larger but definitely exist.
Ms Kayess: I want to say one more thing, the Australian Human Rights Commission has just
done an extensive consultation on access to justice issues, and if that's okay we'll put
the link in the drop box for the report, because it's quite a good report highlighting practice.
>> I was thinking also the 20 years 20 story link so people can see Marlon's story, because
it's astonishing when you see it, it's difficult to understand how they could say could not
plead.
Ms Kayess: And also 20 years 20 stories would be a great resource on lots of topics. So we'll put those in the drop
box for everybody.
Chair: Brilliant. We'll coordinate it from the technological.
Ms Lord: I'll just highlight a few things that come to mind, one is the work that disability
rights international is doing in Guatemala where they did reporting and documents of
abuses against women with psychosocial disabilities who were trafficked across the street to the
prison and this was of course with involvement of the prison officers, so this link between
human Trafficking and disability not a lot of attention has gone to it but it's there,
and they've taken a piece for measures for the commission I believe.
That's something to look at as important. The other issues protective regimes gone horribly
wrong, I had some friends working on a sponsored project in New Zealand there was a statute
enacted to protect persons with intellectual disabilities who had been accused of fairly
serious crimes and who were not being accommodated or supported appropriately within the regular
prison system, so the statute was intended to address this but they put them in a separate
detention facility and then over time it became apparent that they were being detained for
far longer than they would have had they stayed in the regular system. So lots of advocacy
around that.
The Northern Ireland prison service has a human rights advisor and they have actually
adopted a disability action plan which I thought was quite interesting, I had the opportunity
to visit them at one point.
Finally my colleague Michael Schwartz at Syracuse University runs the disability law clinic
and this past year they decided to take on a theme every year, this year we were focusing
on prisoners with disability and access issues, they did a study and found there were several
hundred, I want to say 800 I may have that wrong, several hundred deaf prisoners across
the US, Michael Schwartz is one of the only deaf law Professors in the US, so he took
a big interest in this area, he was finding instances of deaf prisoners being isolated,
put in solitary confinement, no access to sign language interpreters, no access to lawyers
with sign language interpreters, so that's some work he is taking, he is litigating currently
and I think will be coming out with more working research on that.
Dr Flynn: I won't say much, I want to reinforce the points Anna made, so just two things,
which is that yes I think the issues that disability highlights in the criminal justice
system show the criminal justice system is not working the way it was intended and does
need to be reformed for everybody and people with disabilities will benefit from that and
should be part of the reform.
Also general provisions like fitness to plead, maybe diversion out of the criminal justice
system for certain kinds of offenders and perhaps also reasonable accommodation in the
prison system, particularly diversion and fitness to plead are things that we could
think about retaining if they were made disability neutral, so if they were available to people
on an equal basis, I think that would meet the requirements of Article 12, but that requires
a much bigger discussion that we don't have time to go into now, but we'll be happy to
talk to people about that afterwards.
Chair: On the whole area of disability law and criminal air that's a topic on to itself.
Lucy?
Dr Series: Just a couple of words, first is in England our Law Commission has just done
a piece of work on fitness to plead. They based their recommendations very heavily on
an old paradigm approach to legal capacity, they want a functional test of legal capacity
to address issues around fitness to plead and they came across literature of Article
12 on the Convention of rights of persons with disabilities quite late on in their work
and there's actually a statement in the most recent report saying that the requirements
of Article 12 appear to them to be incompatible with European Convention and they have given
clear precedence to the European Convention, so there is a clear need, that's a strong
contrast to the Australian Law Commission who are bound by the European Convention.
So that's kind of, it's quite interesting to compare the Australian Law Reform Commission's
interesting proposals on fitness to plead with what happened in England. If anyone is
in England perhaps they can respond to the Law Commission suggestions.
I wanted to make another comment about alleged offenders and regimes of detention, one of
the things we see in England is the use of preventative detention to prevent people committing
crimes on the basis that they lack mental capacity and it's in their best interest to
be stopped from committing a crime.
So these are regimes of indefinite detention, to protect the public in the name of protecting
the individual and they don't even involve a proper trial of factor anything like that,
they are not regimes of detention to be imposed on anyone else, that's very troubling use
of legal capacity legislation there.
I want to say something quickly about victims of crime, there has been in fact the criminal
court have done much better than civil courts in England around looking at special measures
to help people give evidence and that's, vulnerable witnesses but includes people with disabilities,
includes women who are alleging having been victims of *** offences and all manner
of people who might find giving evidence problematic and we're doing slightly better and the civil
law system could learn from the criminal law system.
I just want to tell you a quick story, ten years ago the regulators for health and social
care came across one of the most horrendous and widespread instances of abuse of people
with learning disabilities in residential care in independent living services. People,
the police investigated and the police report says things like people were tied to their
wheelchairs for 16 hours a day, they were restrain to give them medication, they were
given cold showers to punish them and the police report then says no crimes were identified.
Now if someone came to my home and tied me to a chair for 16 hours, gave me a cold shower
and forced me to take medication they would be pretty quick to identify a crime. So there
is something again about the context of care and incapacity issues which clouds the perception
of somebody as a victim of a crime.
Nobody from, who was abused in this scandal in Cornwall none of the alleged offenders
were even prosecuted they didn't even attempt prosecution because of issues of credibility
around the witnesses.
Ten years later there was abuse scandal at Winterbourne View and it was caught on tape,
the only successful prosecutions were for offences caught on film, so there is an issue
around how successfully we can prosecute crime if we are not prepared to believe people that
make allegations around crime, that really desperately need to be addressed, a lot of
that is around attitudes more than anything else.
>> Just a few comments, I think first of all it's the complexity of legal capacity in the
context of criminal liability. Because on one hand we are doing a lot of advocacy around
the right, on the other hands people can commit certain crimes and get away with them, so
it becomes a very difficult discussion in terms of legal capacity.
The other discussion which I have had in Kenya is about establishment of the courts at an
alternative, especially for persons with psychosocial disabilities, based on the work that I've
done with Miriam in the Kenyan national commission on human rights, the other interesting bit
that I found when monitoring rights of persons with disabilities, especially for persons
with physical disabilities is the kind of situation sometimes they live in detention
centres, because we found that for example they are not allowed to have crutches, and
the argument is of course that can be used as a weapon.
And that person has to keep on crawling from one room to another, which of course becomes
something which is very undignified. So these are some of the issues that probably we have
encountered when monitoring the rights of persons with disabilities in Kenya thank you.
Chair: Thank you very much. I saw that you had your hand up, you wanted to make a contribution?
Good to see people whose voice we haven't heard earlier.
>> Sorry I got really interested in all this. First of all I have to tell that you I'm not
a lawyer I'm an anthropologist and in that sense I want to make connections between all
the cultural factors that I paid more attention than the laws. And also as someone who works
with disability rights funds, what we have perceived is that it is not only the system
who is denying access to justice to people with disabilities, it is also the NGOs who
do not work with people with disabilities who are obliteration or denying or simply
not taking into consideration especially people with disabilities and just very briefly for
example, we have a case in Lebanon of a person with Down Syndrome who has been in jail for
I don't know how many years, and when our organisation who works with people with intellectual
disabilities approached an NGO working with access for justice they said what is Down
Syndrome?
So we are talking of that level of, that we might also need to address that eventually.
Chair: Thank you that's a very important observation, the development of silos within civil society
groups and failure to have information. >> Sorry just a question for Lucy based on
what you just said on special measures in the UK, I know just picking up on one of the
big special measures which is just coming into force now is under section 28 of the
youth and Criminal Evidence Act 1999 where now admitting pre recorded statements in court
from vulnerable victims, I'm just wondering has that met any opposition just on the basis
of the rights of defendants who we'll say in an adversarial system, how can we cross
examine someone on the basis of pre recorded evidence and the jury don't get to directly
apprehend the, we'll say the witness when testifying, just something that any time I
give a presentation I'm always asked that question, people seem to criticise the measure,
but I don't know how to respond, I'm just wondering if you have a response?
Dr Series: I'm afraid I haven't followed this development closely enough to give you a competent
answer yes or no.
I'm looking at Anna Lawson to see if she might have some knowledge on this coming from the
UK; do you know anything about this Anna?
Prof Lawson: Thank you very much, I just had the joy of reading the UK report for the access
to justice project that Jenny was giving us examples from this morning from the Irish
perspective.
Certainly that UK report hasn't identified a particular controversy around that, that
doesn't mean there isn't. But it hasn't picked up on that, it has picked up on other controversies,
like the lack of statutory right to registered intermediary for defendants with disabilities.
Chair: All right thank you very much. And now coming to the close of this session, so
Jenny I think you want to?
Ms Klein: Just to respond to your question there, Ireland has a kind of remarkable High
Court case under section 16 of the 1993 *** Offences Act which in and of itself is a discriminatory
protectionist law that is a law protecting people with disabilities from assault, and
in that, under Irish evidentiary laws if you are a vulnerable person you can provide evidence
through video testimony, and so in this case a case brought under this act was trying to
admit video recorded testimony from the victim, and the defendant said that they didn't know
the person was vulnerable, that was their defence. And that if the DVD was allowed in,
because the DVD is only allowed in because the person is vulnerable, it created a presumption
of vulnerable and undermined the defendant's defence and the High Court ruled that the
person was not entitled to video recorded evidence in that case and the person had to
testify. >> That's the D O D case I think.
Chair: Just on a related matter, that section 23 of the Criminal Evidence Act, is that what
we're talking about? >> This is in the UK.
Chair: Here in Ireland, there is the, in the cases where you have children with an intellectual
disability and can't give evidence there is reliance on the section 23 of the act 1997
and then you have the Criminal Evidence Act as well.
Now okay I think we have to draw it to a close I'm afraid you'll have to meet some of the
speakers in the course of their coffee and inveigle them into talk to you is that lord?
Ladies and gentlemen don't move yet, you have heard the various round table discussions
about accessing justice around the world. So we are having a coffee break now and thereafter
ladies and gentlemen, therefore you will be applying your learnings to this state of Gilead,
in relation to the representation and preparing for the moot court, the case of Serena joy
versus the Republic of Gilead. So we can put on our thinking caps.
Obviously the groups assigned to the various tutors are all set up on the notice board
outside and we're meeting here and in another room is that right?
Dr Flynn: Just to remind people, this room if you are on the team that's mentored by
Anna and piers, the team representing Serena joy in this room, if you are on the team being
mentored by Teresa and Lucy/Janet you will be in 129 the large room behind this room,
where we had the meeting at lunchtime and some of the workshops yesterday, so go directly
to whatever room you are in for your team rather than coming back here, unless you are
in this room, okay thanks.
Chair: Thank you very much.