The increasing number of youth offenders with disabilities going through the court system has prompted concerned judges to discuss how to better address the needs of young criminals.
The move follows research suggesting that up to 75 per cent of youths involved in the justice system may have a mental disorder or disability.
Chief District Court Judge Jan-Marie Doogue and the Principal Youth Court Judge John Walker announced today that they are working to address the mounting evidence of the impact of "a cocktail of disabilities" on young offenders.
The changes could extend beyond the Youth Court to offenders in their early to mid 20s as well.
Judge Walker told the Herald that the District Court was considering adopting a different approach to young offenders to make the system more appropriate and fair for those with disabilities.
"Judges in the Youth Court are daily confronted with a wide range of disabilities, from dyslexia, autism and foetal alcohol spectrum disorder," he said.
"We also have young people who are affected by methamphetamine, early onset of mental illness and intellectual disabilities, as well as a high percentage of young people who are affected by traumatic brain injuries."
Research shows that as many as 50 to 75 per cent of youth involved in the justice system meet diagnostic criteria for at least one disorder.
Young people in youth detention centres are about 10 times more likely than those in general population to have a psychiatric disorder.
These disabilities are fixed and do not stop when a young person reaches 17 and enters the District Court.
Twenty per cent of youth offenders were also identified as having a learning disability.
"This is a cocktail of disabilities. These disabilities are fixed and do not stop when a young person reaches 17 and enters the District Court," Judge Walker said.
"They simply don't have an expiry date."
The Youth Court has developed processes to respond to the complex needs of these young people, including having multi-disciplinary teams in court and ways for young people to participate in their court case. However, these processes do not generally extend into the adult court.
Chief Judge Doogue believes there are lessons to be learnt from Youth Court processes that could be adopted to better recognise the needs of young adults appearing in the District Court.
It just needs us as Judges to appreciate that we cannot treat all young adults like they are fully developed adults.
If the District Court is to deliver effective responses to offending, Chief Judge Doogue said the defendant needs to be able to understand what is happening - and be able to fully participate in the hearing.
"Many European courts have special processes for young adults and have had those processes for a long time. Recent reports in Europe and the United Kingdom have highlighted the need for these processes.
"It just needs us as Judges to appreciate that we cannot treat all young adults like they are fully developed adults," she said.
A recent report from Centre for Justice Innovation in London, A fairer way: procedural fairness for young adults at court, found this type of procedural fairness is a cost effective intervention that has been shown to reduce reoffending in a number of jurisdictions.
Procedural fairness research has consistently shown that when people feel they have been treated fairly by an institution, when they understand what to expect and what is going on and feel listened to and respected - even when decisions go against them - they are more likely to obey its decisions.
In the context of offending, this means less crime and fewer victims.
Judge Walker said unless the courts can fully engage young offenders in the process that is affecting them, the chances of delivering a successful intervention are pretty low.
"The real challenge is how do we find out who we are dealing with and what we might need to do to insure they can participate fully in the hearing that is about them," he said.
"We need to know who we are dealing with, so we would need to have two things really; information sharing from those agencies that will have dealt with these people as young people – so schools, health and the Youth Court.
"In the best of worlds we would develop a system for gathering that information about a young defendant appearing in the adult court so we all get a heads-up about what we might be dealing with.
"The other way is an enhanced form of forensic screening of young defendants who are appearing in the adult court, to see whether some of these issues can be identified by forensic liaison nurses or some such role."
How can you have a process dealing with people's futures and imposing sanctions on them if they can't actually fully participate because of a disability?
He said it is an issue of procedural fairness.
"How can you have a process dealing with people's futures and imposing sanctions on them if they can't actually fully participate because of a disability?
"For example, those with a communication disorder will need huge assistance to understand what is going on and articulate any response to what is happening.
"Also, I don't know how many people with dyslexia there are who sign bail bonds for example, and we expect them to understand what it all says.
"Aren't we better to say the District Court should be adapting its processes to take account of that."
In the UK report, researchers developed a "fairer way" model for young adults attending court.
The model suggests providing youth with better information prior to court, grouping young adults' hearings, holding pre-court meetings, enhancing engagement during the hearing by explaining roles and routinely checking understanding, and having post-hearing follow ups.
Judge Walker said much of the changes to New Zealand processes are yet to be decided, but they are likely to affect young adults aged under 25.
"There is going to be quite a bit of work to do and it is not just us, there will be other agencies involved and a lot of dialogue about this – but we certainly want to drive it."
Chief Judge Doogue stresses that this is a court process issue and does not require any changes to legislation. Sentencing already takes account of age and disability.