Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities

Abstract

Findings of unfitness to plead can result in individuals with cognitive disabilities losing access to procedural safeguards in the criminal justice system. They can also lead to long periods of detention and, in some cases, indefinite detention of persons with cognitive disabilities in prisons and other secure facilities. This raises significant concerns with human rights breaches, including the rights to legal capacity, a fair trial and liberty. This article provides a critical analysis of unfitness to plead regimes in common law and civil law countries in the light of key rights set out in the United Nations Convention of the Rights of Persons with Disabilities. It then examines how unfitness to plead regimes might be reformed to ensure that the rights of persons with cognitive disabilities are protected.