Defence lawyers’ views on and identification of suspect vulnerability in criminal proceedings

ABSTRACT

Both case law of the European Court of Human Rights and EU legal instruments on the one hand, and academic legal psychological literature on the other, recognise the specific needs of so-called vulnerable suspects in criminal proceedings. In this regard, the important role of the criminal defence lawyer in compensating for a suspect’s vulnerability is emphasised, especially because vulnerable persons require special care to understand their legal rights and to improve the quality of their statements. Consequently, defence lawyers must be aware early on in proceedings whether their clients can be qualified as vulnerable in order to adequately deal with this presumed vulnerability. In practice, determining early on whether or not a client is vulnerable is a challenging task. Drawing from a legal theoretical and qualitative empirical analysis, this article outlines how Belgian defence lawyers perceive and identify suspect vulnerability in the early stages of a criminal investigation.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 For a more detailed overview of the attention given to suspect vulnerability at the EU level, see for instance Mergaerts, L. & Dehaghani, R. (2020) Protecting vulnerable suspects in police investigations in Europe: lessons learned from England & Wales and Belgium, New Journal of European Criminal Law, 11, pp. 313–334; Mergaerts, L., Van Daele, D. & Vervaeke, G. (2018) Challenges in defining and identifying a suspect's vulnerability in criminal proceedings: what's in a name and who's to blame?, in: P. Cooper & L. Hunting (Eds) Access to justice for vulnerable people. (London, Wildy, Simmonds & Hill Publishing), pp. 48–71.

2 For a more detailed analysis of the Belgian legal provisions relevant to compensating suspect vulnerability, see Mergaerts, L. & Dehaghani, R. (2020) Protecting vulnerable suspects in police investigations in Europe: lessons learned from England & Wales and Belgium, New Journal of European Criminal Law, 11, pp. 313–334.

3 The topic list used to conduct the interviews is available via the author upon request.

4 SUPRALAT stands for “Strengthening suspects’ rights in pre-trial proceedings through practice-oriented training for lawyers”. This is a training programme that adheres to a train-the-trainer principle aiming to improve legal assistance provided in the context of police questioning. The training consists of both a theoretical and practical part and was successfully implemented in different countries, including Belgium. For more information, see http://www.salduzlawyer.eu/, but also Pivaty, A., Vanderhallen, M., Daly, Y. & Conway, V. (2020) Contemporary criminal defence practice: importance of active involvement at the investigative stage and related training requirements, International Journal of Legal Profession, 27, pp. 25–44.

5 This information on the training is based on participation in the SUPRALAT training, by both accessing the e-learning module and attending the practical sessions.

6 A tool aimed at improving the identification of suspect vulnerability by Flemish defence lawyers has been developed as part of the PhD research of the author of this article.

Additional information

Funding

This work was supported by Research Foundation - Flanders (FWO) [grant number G083816N].