Protecting vulnerable suspects in police investigations in Europe: Lessons learned from England and Wales and Belgium
| Author | Lore Mergaerts,Roxanna Dehaghani |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1177/2032284420943299 |
| Subject Matter | Special Issue Articles |
Special Issue Article
Protecting vulnerable suspects
in police investigations in
Europe: Lessons learned from
England and Wales and Belgium
Lore Mergaerts
KU Leuven, Belgium
Roxanna Dehaghani
Cardiff University, UK
Abstract
This article provides an analysis of the provisions relating to vulnerable suspects, with a focus on
adults, in England and Wales and in Belgium. In doing so, the various problems and lessons learned
from each jurisdiction are examined.Situated within the context of howthese provisions have been
developed, both at a domestic level and at a European level, we argue that neither system offers an
ideal approach to the vulnerability of suspects, but we also posit that the two jurisdictions can learn
from one another in their approach. Herein, we suggest that both jurisdictions must do more to
protect adult vulnerable suspects and offer potential avenues for improvement.
Keywords
Vulnerable suspect, vulnerability, procedural rights, criminal proceedings, European criminal law
Introduction and the context of procedural safeguards
Within this article, we examine the Belgian and English and Welsh
1
provisions relating to vul-
nerable suspects, focusing on the origins of the provisions, the provisions themselves and some
Corresponding author:
Lore Mergaerts, Leuven Institute of Criminology, KU Leuven, Herbert Hooverplein 10, Box 3418, Leuven, 3000, Belgium.
E-mail: lore.mergaerts@kuleuven.be
1. While the appropriate adult safeguard is available across the three jurisdictions within the UK ((i) England and Wales,
(ii) Scotland and (iii) Northern Ireland), there are distinct differences between the three jurisdictions, both in terms of
their legal systems and in terms of how the appropriate adult safeguard operates. These differences would necessitate
separate examination in a further paper.
New Journal of European Criminal Law
2020, Vol. 11(3) 313–334
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284420943299
njecl.sagepub.com
NJECL
NJECL
hurdles arising in practice. In doing so, we discuss the law in the books but also draw together the
findings of two separate studies: one that examined how the decisions were made in relation to the
vulnerability of the suspect in England and Wales and another that addresses the definition and
identification of a suspect’s vulnerability in Belgium, with a particular focus on the role of the
defence lawyer.
2
The purpose of doing so is to draw comparisons between the two to highlight the
different approaches adopted when seeking to protect vulnerable suspects on the one hand, while
also underlining the problems in how vulnerable suspects are protected in these two jurisdictions
on the other. We will focus predominantly on vulnerability in respect of adult suspects, as this is
where the identification and definition of vulnerability is particularly problematic, although refer-
ences will be made to minors where appropriate. We initially explore the European context, before
examining the domestic provisions within the two respective jurisdictions and comparing these
provisions.
The protection of vulnerable suspects as part of European developments on
strengthening procedural safeguards in criminal proceedings
For years, emphasis has been placed on enhancing and intensifying police and judicial cooperation
across Europe and within the European Union (EU) in particular. To counterbalance this primary
focus on measures to promote such cooperation, more recently the protection of procedural rights
of suspects and accused persons has received increasing attention as well. As a result, procedural
rights – and in particular defence rights – have been strengthened across Europe over the past
years.
3
In the light of these developments, special attention is also given to the so-called vulner-
able suspects, both within the Council of Europe and the EU.
4
With regard to all suspects
involved in criminal proceedings, the European Court of Human Rights (hereafter ECtHR) in
the leading case of Salduz v Turkey – and in subsequent case law
5
–stressedthatduringthe
investigative stage
an accused often finds himsel f in a particularly vulnerabl e position [ ...], the effect of w hich is
amplified by the fact that legislation on criminal procedure tends to become increasingly complex,
notably with respect to the rules governing the gathering and use of evidence.
6
2. The English and Welsh research examines vulnerability from a theoretical, legal and empirical perspective, focusing on
how vulnerability was identified and defined in the law (including an analysis of case law) and by custody officers in
practice, as well as having an analysis of how decisions were made in respect of vulnerable adult suspects – see Roxanna
Dehaghani, Vulnerability in Police Custody: Police Decision-Making and the Appropriate Adult Safeguard (Routledge,
Abingdon 2019). The Belgian research consists of a theoretical, legal and exploratory qualitative empirical analysis of
the definition and identification of a suspect’s vulnerability in Belgium in the context of the European legal develop-
ments (in progress).
3. For a detailed analysis, see Jacqueline S Hodgson, ‘Safeguarding Suspects’ Rights in Europe: A Comparative Per-
spective’ (2011) 14 New Crim L Rev 611.
4. See also Lore Mergaerts, Dirk Van Daele and Geert Vervaeke, ‘Challenges in Defining and Identifying a Suspect’s
Vulnerability in Criminal Proceedings: What’s in a Name and Who’s to Blame?’ in Penny Cooper and Linda Hunting
(eds), Access to Justice for Vulnerable People (Wildy, Simmonds & Hill Publishing, London 2018) 49–53.
5. See, for instance, also Panovits v Cyprus App no 4268/04 (ECtHR, 11 December 2008); Shabelnik v Ukraine App no
16404/03 (ECtHR, 19 February 2009); Pishchalnikov v Russia App no 7025/04 (ECtHR 24 September 2009); Dayanan
v Turkey App no 7377/03 (13 October 2010).
6. Salduz v Turkey App no 36391/02 (ECtHR 27 November 2008).
314 New Journal of European Criminal Law 11(3)
To continue reading
Request your trial