Open Justice and Mentally Impaired Offenders

Should a presumption in favour of suppression orders apply to court proceedings where an offender has been found not guilty by reason of mental impairment?

In the latest Victorian Law Institute Journal, the Hon Phillip Cummins, current chair of the Victorian Law Reform Commission, wrestles with this issue in explaining the latest recommendations by the VLRC in a review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’).

The issue raises several conflicting principles currently influencing the conduct of trials in Australia and other common law countries.

The first is the principle of open justice – that the public interest demands that court proceedings are conducted openly with free communication of information by the media about all proceedings in courts and tribunals.

Whilst the principle of open communication is clearly in the public interest, it is often in conflict with other goals of criminal justice such as the reintegration of offenders back into the community and the need to protect individuals found not guilty in a fair hearing. Vigilantism and public shaming have had a long history of undermining  principles of rehabilitation and due process.

This is even more the case in circumstances where an offender is suffering from mental illness or disability, topics poorly understood by the community. The narrative that an offender found not guilty by reason of mental impairment is simply ‘cheating the system’ has proven very effective in selling newspapers in recent years.

Along with general due process concerns, mental health professionals have noted that the principle of open justice could hinder the recovery of offenders suffering from mental impairment due to adverse publicity and public harassment. It is not hard to imagine how being identified on the street or reading criticism in a newspaper may hinder efforts to recover from mental illness or disability.

It was on this basis of offender recovery and community integration that the VLRC recommended in its review that in limited circumstances there should be a presumption in favour of suppression orders where an offender is found not guilty by reason of mental impairment.

This recommendation is not without its critics, with victims groups and media lawyers claiming that suppression orders protect violent offenders from accountability and that a presumption in favour of suppression orders is against the public interest.

What do you think? Where is the balance between supporting the therapeutic needs of offenders and ensuring courts remain open to be scrutinised by the general public?

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