A Section 32 application is an application pursuant to s.32 Mental Health (Forensic Provisions) Act 1990 to have charges dismissed without conviction. If an order is made by the court under section 32, the defendant is diverted from the criminal justice system and is diverted to a treatment program for their disability or illness.
Who is eligible?
A person may be eligible it appears to the Magistrate that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
- developmentally disabled,
- suffering from mental illness
- suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person.
What is the effect of an order made by magistrate under this section?
The effect of the order is to dismiss the charges either unconditionally or subject to conditions.
What are the conditions a magistrate may impose?
Conditions usually relate to complying with a treatment plan, which is an outline of various steps to be taken to engage with services and support to address any issues associated with the offending conduct and the disability.
What is the criterion for a magistrate to consider before making an order under Section 32?
Firstly, that the defendant is eligible.
Secondly, that it would be more appropriate to deal with the defendant through under a section 32 order and diversion into treatment and support, than otherwise through the normal criminal law process of pleas, hearings, sentencing and the like.
In deciding whether it is more appropriate, the Magistrate needs to balance two competing public interests namely, the public interest in a person convicted of a criminal offence facing the full weight of the law against the public interest in diverting, supporting and treating a person with intellectual disability not to re-offend and thereby protect the community.
How long does an order under Section 32 last for?
Section 32 orders normally last 6 months. If a person breaches any one of the conditions within those 6 months (and it is reported to the Court) then they can be brought back before the court to be tried for the original charges in accordance with the normal process of the law.
What if I breach my conditions of a Section 32 order?
Breach proceedings can be taken in the event the Court is advised the person has failed to comply with their conditions. The person can be dealt with for the offence as if diversion had not occurred.