Interrogating Vulnerability: Reframing the Vulnerable Suspect in Police Custody
| Author | Roxanna Dehaghani |
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | http://doi.org/10.1177/0964663920921921 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2021, Vol. 30(2) 251–271
Interrogating Vulnerability:
ª The Author(s) 2020
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Reframing the Vulnerable
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DOI: 10.1177/0964663920921921
Suspect in Police Custody
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Roxanna Dehaghani
Cardiff University, UK
Abstract
This article considers the definition of the term ‘vulnerability’ in relation to the suspect in
police detention and more specifically in relation to the appropriate adult safeguard.
Using Fineman’s vulnerability theory, this article argues that all suspects are ‘vulnerable’
and, rather, attention should be focussed on how resilience is depleted, reduced or
removed. In doing so, it points towards the limitations of the focus of the current leg-
islative provisions. It situates this discussion within the broader frame of the impact and
very nature of police detention and the implications of the broader criminal process as
mechanisms that reduce resilience (and possibly deliberately so). Further, it reflects on
how the framing of vulnerability in legislation relating to the police detention does not
fully capture the position of the suspect in police detention. It concludes then by urging
that the definition of the vulnerable suspect is reconceptualised so as to more adequately
capture the position of the suspect of the criminal investigation.
Keywords
Appropriate adult, custody, police, voluntary interview, vulnerability
Introduction
The Police and Criminal Evidence Act 1984 (PACE), implemented in 1986, introduced a
legislative framework through which to regulate police powers and procedures, and
suspects’ rights, including the introduction of the appropriate adult (hereafter AA) safe-
guard for vulnerable suspects. Prior to the implementation of PACE, the Judges’ Rules –
Corresponding author:
Roxanna Dehaghani, Cardiff School of Law and Politics, Cardiff University, Cardiff CF10 3AT, UK.
Email: fatemi-dehaghanir@cardiff.ac.uk
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Social & Legal Studies 30(2)
which were, in essence, rules on how the police should collect evidence to secure its
admissibility – governed the treatment of suspects in custody. However, a miscarriage of
justice in 1972 highlighted the deficiencies with the Judges’ Rules (see Fisher Report,
1977/1978 in combination with the Report of the Royal Commission on Criminal Pro-
cedure, 1981). The AA safeguard was introduced to protect those deemed ‘vulnerable’;
failure to provide an AA to a vulnerable suspect could lead to exclusion of evidence
(PACE ss 76 and 78) and/or a jury direction (PACE s 77).1
Until 2018, Code C recognised vulnerability to include young age (below 18), mental
vulnerability’ (difficulty with understanding ‘the significance of what is said, of ques-
tions or of their replies’ due to issues with mental state or capacity (Home Office,
2017:Note 1G), and ‘mental disorder’ (‘any disorder or disability of the mind’ (see
Home Office, 2017: Note 1G in combination with the Mental Health Act 1983, s
1(2))) (see Code C generally).2 However, in 2018, a functional test (see Dehaghani and
Bath, 2019) was introduced and the category of ‘mental vulnerability’ removed. This
article explores the new vulnerability criteria under the Code – which addresses
understanding and communication in relation to rights, entitlements, procedures and
processes, clarity of thought, and suggestibility and acquiescence (Home Office,
2019: 1.13d; see also Home Office, 2018) – and whether these criteria improve the
Code. Thereafter, this article examines the approach(es) to vulnerability that under-
pin(s) this (and the problems herein) and then explores whether vulnerability could
be reframed, using Fineman’s (2008, 2010, 2013, 2017) vulnerability theory.
Finally, it examines what this may mean for suspects in police custody. In doing
so, this article contributes to existing debates the protection of vulnerable suspects3
and the reach and utility of Fineman’s vulnerability theory.4 This article neither
explores the disparities between the law in books and the law in action (see Deha-
ghani, 2016) or decision-making on the AA safeguard (see Dehaghani, 2019) nor
does it offer ‘solutions’ to the ‘vulnerability problem’. Rather, it exposes problems
with the existing conceptualisation of vulnerability under Code C, urging that the
provisions be entirely reworked. The insights contained herein, while directly appli-
cable to England and Wales (and Northern Ireland under the Police and Criminal
Evidence (NI) Order 1989), may also apply to other jurisdictions, and could also
extend to detainees and to defendants, more broadly.
Vulnerability Under PACE Code C
As noted earlier, 2018 saw some changes to the definition of vulnerability, specifically
geared towards adult suspects. The new Code C (Home Office, 2018; now Home Office,
2019) introduced a functional test (Dehaghani and Bath, 2019), expanding on the pre-
vious definitions of ‘mentally vulnerable’ and ‘mentally disordered’ and replacing these
categories with the term ‘vulnerable person’ (although mental disorder remains in the
Code). According to the Code, a ‘vulnerable person’ is someone who because of their
mental health condition or mental disorder (1) may struggle to understand or commu-
nicate effectively about the implications of various procedures and process connected
with their arrest and detention, voluntary attendance or rights and entitlements (and the
exercise thereof); (2) does not appear to understand the significance of what they are
Dehaghani
253
told, question asked, or their replies; and/or (3) is prone to becoming confused or unclear
about their position, agreeing to suggestions of others without protest or question, or,
without knowing or wishing to do so, providing unreliable, misleading or incriminating
information or accepting or acting on suggestions from others (Home Office, 2018:
1.13d).
These specific criteria expand upon a fuller definition of the term ‘otherwise
mentally vulnerable’ and set out the risks to justice and evidence, beyond whether
a suspect is able to understand the significance and implications of what is being
said to them (Dehaghani and Bath, 2019) or whether he or she is likely to provide
unreliable evidence ( Home Office, 2017, 2018). The new Code C (as with the old)
appears to connect vulnerability with certain deficiencies when being questioned by
the police (during a voluntary interview or an interview conducted whilst in police
detention) such as (a) an inability (or difficulty) in understanding rights and entitle-
ments, procedures and processes, understanding the implications of what is said and/
or communicating, or (b) a propensity towards being suggestible or acquiescent. For
one or more of these reasons, she/he requires and should be provided with additional
help and assistance.
The changes to Code C (and indeed the previous versions of the Code) were heavily
influenced by how vulnerability is said to manifest according to the discipline of psy-
chology and law and are a marked improvement on the previous Code (which, in respect
of the vulnerability provisions was limited in scope and had, from 1986 to 2018, been
updated in a piecemeal fashion)5 (although it is later argued that these changes do not go
far enough). Within the section that follows the ‘psychology and law’ approach to
vulnerability and its influence on Code C will be examined.
Psychology and Law: Manifesting Vulnerability
While there has been no overall consensus on how psychological vulnerability is or
should be defined (Gudjonsson, 2010: 166), the psychology and law perspective iden-
tifies several different factors – intellectual abilities, personality, health (physical and
mental), mental state, situational context – that may render an individual vulnerable.
Generally, in the context of police custody, vulnerability can be understood as ‘psycho-
logical characteristics or mental states which render a [person] prone, in certain circum-
stances, to providing information, which is inaccurate, unreliable or misleading’
(Gudjonsson, 2006: 68). That said, these characteristics (explored below) are potential
risk factors for reliability rather than definitive markers of vulnerability (Gudjonsson,
2010). This approach posits that suspects are vulnerable ‘because they may not fully
understand the significance of the questions put to them or the implications of their
answers [or] are unduly influenced by short-term gains (e.g. being allowed to go home)
and by the interviewer’s suggestions’ (Gudjonsson et al., 1993: 121). For example, those
with a less than average intellectual ability may experience feelings of intimidation when
interviewed by someone in a position of authority (St-Yves, 2006 citing Gudjonsson and
MacKeith, 1994). They may also answer questions in the affirmative, regardless of what
is being asked and even if they disagree (O’Mahony et al., 2012), doing so to avoid
conflict or to maintain a level of self-esteem (Gudjonsson, 2003). Moreover, they may be
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more suggestible (St-Yves, 2006 citing Clare and Gudjonsson, 1993), may behave in an
acquiescent manner or may confabulate (Clare and Gudjonsson, 1993: 295).6
Even those with a mild learning disability can experience problems when commu-
nicating with others or can be awkward in doing so. They may have to make a concerted
effort to be understood, particularly in unfamiliar situations; they may find it difficult to
interpret questions and statements from others and/or handle information or regulate
their behaviour (i.e....
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