Interrogating Vulnerability: Reframing the Vulnerable Suspect in Police Custody

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 legislative 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.

Inaccessible Justice: Exploring the Barriers to Justice and Fairness for Disabled People Accused of a Crime

“…Likewise, the Law Society of Scotland (2019) has called for equivalence in the treatment of vulnerable accused people in response to recent legislative reforms 2 for vulnerable victims and witnesses. Similar concerns have been raised in England and Wales (Dehaghani 2020;Fairclough 2017Fairclough , 2019, China (Mou 2020), North America (Ben-Moshe 2013; Rodriguez, Ben-Moshe and Rakes 2020) and Australia (Baldry 2014;Baldry et al 2013Baldry et al , 2015Spivakovsky 2014).…”

“…Fineman (2008) argues that those who require additional support are often seen as exceptional and disadvantaged, resulting in differential treatment that risks obscuring our, universal, vulnerability. Dehaghani (2020) suggests that the gap between policy and practice can be reconciled in this area through the incorporation of the universal vulnerability approach, acknowledging the State's responsibility in recognising vulnerability and providing resources (Fineman 2008(Fineman , 2017.…”

Perception, practice and proximity. Qualifying threats as psychological torture in international law.

“…The legal assessment of the minimum level of severity -not just limited to psychological torture -also "depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim" and that context must be taken into account, including an "atmosphere of heightened tension and emotions," also drawing in context and totality of conditions and treatment (Bouyid v Belgium, §86). 2 Leaning on such a more embodied and embedded approach to vulnerability would help correct the underestimation of the impact inherently stressful environments inflict on particular individuals (Dehaghani, 2020). I will return to this in the discussion on perception.…”

The Transplanted Appropriate Adult Scheme in China

“…In the latest version of the Codes of Practice, the categories of vulnerable suspects encompass juveniles under the age of 18 years and adult suspects who are described as a ‘vulnerable person’ subject to a functional test introduced in 2018 (Dehaghani and Bath 2019; Home Office 2019, Code C). These criteria reflect the conceptualisation of vulnerability in the existing legal framework which is perceived from the perspective of psychology and evidence law: what makes someone a vulnerable suspect in criminal justice essentially depends on his or her ‘psychological characteristics or mental states’ (Dehaghani 2020; Gudjonsson 2006, p.68). Suspects who manifest identified psychological risk factors, such as mental disorders and mental vulnerability, may have difficulty in comprehending what is happening to them and/or in appreciating the consequence of their answers in police questioning.…”

“…In the recently introduced ‘vulnerable person’ functional test, the list of risk factors has extended to adult suspects who, due to their mental health condition or mental disorder: (i) may not comprehend the implications of criminal procedures, or their rights or entitlements; (ii) do not appear to understand the significance of what they are told, questions asked or their replies; and/or (iii) may be particularly prone in certain circumstances to give unreliable, misleading or incriminating evidence (Home Office 2018, section 1.13d). Despite the expanded scope of vulnerability, Dehaghani (2020) argues that the functional test is inadequate in capturing the essence of vulnerability in the existing legal framework, which could be better understood as ‘depletion or reduction of resilience’ (p.3). The revised test still envisages vulnerability from the lens of physical and/or personal manifestation of innate or natural deficits.…”