Protecting the fair trial rights of mentally disordered defendants in criminal proceedings: Exploring the need for further EU action

https://doi.org/10.1016/j.ijlp.2015.03.009Get rights and content

Abstract

Using the new legal basis provided by the Lisbon Treaty, the Council of the European Union has endorsed the 2009 Procedural Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings. This Roadmap has so far resulted in six measures from which specific procedural minimum standards have been and will be adopted or negotiated. So far, only Measure E directly touches on the specific issue of vulnerable persons. This Measure has recently produced a tentative result through a Commission Recommendation on procedural safeguards for vulnerable persons in criminal proceedings. This contribution aims to discuss the need for the introduction of binding minimum standards throughout Europe to provide additional protection for mentally disordered defendants.[1] The paper will examine whether or not the member states adhere to existing fundamental norms and standards in this context, and whether the application of these norms and standards should be made more uniform. For this purpose, the procedural situation of mentally disordered defendants in Belgium and England and Wales will be thoroughly explored. The research establishes that Belgian law is unsatisfactory in the light of the Strasbourg case law, and that the situation in practice in England and Wales indicates not only that there is justifiable doubt about whether fundamental principles are always adhered to, but also that these principles should become more anchored in everyday practice. It will therefore be argued that there is a need for putting Measure E into practice. The Commission Recommendation, though only suggestive, may serve as a necessary and inspirational vehicle to improve the procedural rights of mentally disordered defendants and to ensure that member states are able to cooperate within the mutual recognition framework without being challenged on the grounds that they are collaborating with peers who do not respect defendants’ fundamental fair trial rights.[1] Throughout this contribution the term ‘defendant’ will be used, and no difference will be made in terminology between suspected and accused persons. This contribution only covers the situation of mentally disordered adult defendants.

Introduction

As early as 2003, the European Commission (the Commission) suggested that member state authorities should consider a defendant's potential vulnerability during the earliest stages of criminal proceedings, and take appropriate measures to ensure the fairness of these proceedings (European Commission, 2003). Over ten years later, the Commission finally seems to be ready to embark on a mission to provide a sufficient level of procedural protection to vulnerable defendants, by introducing minimum protection standards for this population throughout Europe. The weapon of choice newly selected for this matter might seem like a bit of a dud, as it is an inherently non-binding recommendation (European Commission, 2013b). Nonetheless, it constitutes a formal EU instrument with an influential position for the protection of vulnerable defendants.

In order to outline the potential of the Commission's recent work in this area for mentally disordered defendants, it is necessary to take a closer look at the recent European developments that lie at the origin of the work. In addition to the renewed interest the European Union (EU) has shown in this population, the Strasbourg institutions have elaborated on the contours of fair trial rights for mentally disordered defendants.

This contribution aims to discuss the necessity for this mission to introduce binding minimum standards throughout Europe to provide additional protection for mentally disordered defendants in criminal proceedings. The paper will examine whether or not the member states adhere to the existing fundamental norms and standards in this context, whether the actual application of the existing norms and standards should be made more uniform and, lastly, whether and, if so, how the Commission Recommendation connects to all of this.

For this purpose, the procedural situation of mentally disordered defendants both in Belgium and in England and Wales will be thoroughly explored against this backdrop. The legal systems of these countries encapsulate differing traditions for the procedural position of defendants. On the one hand, the Belgian legal system is situated within a continental civil law legal tradition. The pre-trial aspects of criminal procedure there have an inquisitorial nature. The legal system in England and Wales, on the other hand, derives from common law principles that require the prosecution to be situated in an adversarial context. As a result, this legal tradition inherently puts more emphasis on the importance of individual procedural rights (Jörg et al., 1995, Reichel, 2005, Vander Beken and Kilching, 1999). By examining the position of mentally disordered defendants in criminal proceedings in these distinctive jurisdictions, the contribution will be able to draw conclusions that are valid at both national and European levels.

Section snippets

Evolutions from Brussels

At the Tampere Council of 1999 (European Council, 1999), the EU adopted the principle of mutual recognition (MR) as the bedrock for judicial cooperation. The introduction of this concept for criminal matters symbolises the member states' commitment to accept the differences between their respective criminal justice systems and to cooperate in spite of these differences. Obviously, such a cooperation framework strongly depends on a common level of trust, since it requires the recognition and

Evolutions from the United Nations

The introduction of Measure E in the Roadmap and its objective to ensure equality of arms for vulnerable defendants is consistent with another recent instrument focused on people with disabilities. The United Nations Convention on the Rights of Persons with Disabilities11

Evolutions from Strasbourg

Relatively recent ECtHR case law clarifies that Article 6 of the ECHR guarantees the right of defendants to participate effectively in criminal proceedings from the earliest stage of police interrogation. Since the case law of the court has clarified that people who are being questioned in relation to offences but who have not yet been formally charged should be covered by Article 6 of the ECHR, people arrested or detained in connection with a criminal charge also come within the ambit of this

Effective participation in Belgium and in England and Wales

Based on the conclusions drawn from the Strasbourg case law, the focus of the comparative exercise will be limited to an analysis of the presence and rigour of early detection mechanisms and the availability of extra-legal assistance for mentally disordered defendants.

Need for further EU action

The research results clearly demonstrate the different approaches towards the protection of the procedural rights of this population in England and Wales and in Belgium. The fact that the two jurisdictions differ is, however, insufficient for the EU to adopt minimum standards across Europe. As mentioned in the Procedural Roadmap, minimum standards should only be adopted when the effective participation principle is not adhered to by the member states or when its application should be made more

References (41)

  • D. James

    Diversion of mentally disordered people from the criminal justice system in England & Wales: An overview

    International Journal of Law and Psychiatry

    (2010)
  • T. Nemitz et al.

    Protecting the rights of the mentally disordered in police stations: The use of the appropriate adult in England and Wales

    International Journal of Law and Psychiatry

    (2001)
  • M. Anderson

    Law enforcement cooperation in the EU and fundamental rights protection

  • K. Bradley

    The Bradley Report. Lord Bradley's review of people with mental health problems or learning disabilities in the criminal justice system

    (2009)
  • C. Brants

    Procedural safeguards in the European Union: Too little, too late?

  • E. Cape et al.

    Suspects in Europe, procedural rights at the investigative stage of the criminal process in the European Union

    (2007)
  • Council of the European Union

    Programme of measures to implement the principle of mutual recognition of judicial decisions in criminal matters

  • Council of the European Union

    Council framework decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States

  • Council of the European Union

    Resolution of 30 November 2009 on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings

  • European Commission

    Green paper on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union

  • European Commission

    Proposal for a council framework decision on certain procedural rights in criminal proceedings throughout the European Union

  • European Commission

    Strengthening mutual trust in the European judicial area — A green paper on the application of EU criminal justice legislation in the field of detention

  • European Commission

    The right to… — A fair trial! Commission wants more safeguards for citizens in criminal proceedings

  • European Commission

    Commission recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings

  • European Commission

    Commission staff working document executive summary of the impact assessment accompanying the proposal for measures on special safeguards for children and vulnerable adults suspected or accused in criminal proceedings

  • European Commission

    Commission staff working document staff working document impact assessment accompanying the document proposal for a directive of the European parliament and of the council. Proposal for a directive on procedural safeguards for children suspected or accused in criminal proceedings

  • European Commission

    Proposal for a directive of the European parliament and of the council on procedural safeguards for children suspected or accused in criminal proceedings

  • European Council

    Tampere European council presidency conclusions

  • European Council

    The Stockholm Programme — An open and secure Europe serving and protecting the citizen

  • Fair Trials International

    Defence rights in the EU

    Appendix 2

    (2012)
  • Cited by (4)

    • Dilemmas in applying strengths-based approaches in working with offenders with mental illness: A critical multidisciplinary review

      2017, Aggression and Violent Behavior
      Citation Excerpt :

      From the point of view that this population might need additional procedural safeguards in order to understand and follow legal proceedings (Nemitz & Bean, 2001), arguments are made that the mere assistance of a legal representative is insufficient to guarantee the rights of persons with mental illness. Similarly, case law of the European Court for Human Rights' (ECtHR) now states that defendants with mental illness have a right to participate in criminal proceedings from the earliest stage of police interrogation (Verbeke, Vermeulen, Vander Beken, & Meysman, 2015). This legal evolution with regard to the right to effective participation could be a source of normative and ethical inspiration to those who provide treatment or care to offenders with mental illness.

    • The tension between cross-border cooperation in the European Area of Freedom, Security and Justice and the fundamental rights of mentally ill offenders in detention

      2016, International Journal of Law and Psychiatry
      Citation Excerpt :

      Moreover, this case law covers only the most severe situations, which unfortunately implies that certain guarantees may not be enforced to their full extent without there being an effective remedy before the Court. Last but not least, because of their specific vulnerability, mentally disordered offenders may find it difficult to access the protection mechanisms offered by the ECtHR (Verbeke, Vermeulen, Meysman & Vander Beken, 2015)). In addition, Member States'practises may not be compliant with international norms and standards beyond the Convention, or with principles enshrined in non-binding instruments.

    • Missing out on Miranda: Investigating Miranda comprehension and waiver decisions in adult inpatients

      2018, International Journal of Law and Psychiatry
      Citation Excerpt :

      How effective are these safeguards? Although early screens have been tested in English and Welsh jurisdictions, further evaluation of assessment methods is definitely indicated (Verbeke, Vermeulen, Meysman, & Vander Beken, 2015). Jails in the United States have high percentages of male (Proctor & Hoffmann, 2012) and female (Lynch et al., 2014) detainees with SMDs and comorbid substance use disorders.

    • Legal aspects of the use of coercive measures in psychiatry

      2016, The Use of Coercive Measures in Forensic Psychiatric Care: Legal, Ethical and Practical Challenges
    [1]

    Throughout this contribution the term ‘defendant’ will be used, and no difference will be made in terminology between suspected and accused persons. This contribution only covers the situation of mentally disordered adult defendants.

    View full text