Personal submission after the 1st meeting of European Criminal Bar Association on 16/03/2013 in London, for the Measure E of the Stockholm programme for the appropriate rights and treatment of vulnerable suspects.
There is no universally agreed definition of “vulnerable” with regards to witnesses (Bull, 2010). Accordingly, trying to find a closed definition of “vulnerable suspect” seems to be equally disruptive causing what Janssen and Ostrom (2006) said a “Babylonian confusion” (Janssen & Ostrom, 2006, p.237). The Tasmania Law Reform Institute (2006, p.32) pointed out that there are groups that may require special consideration and treatment during arrest or police custody or criminal investigation process and they are identified as “vulnerable groups”. They included into this group children and young people, mentally disordered persons and persons with developmental disabilities, persons from non-English speaking backgrounds, and other persons, who by reason of some disability, are unable to communicate properly with the police (seriously visually or aurally impaired, persons who cannot speak etc). However, the categorisation of “vulnerable people” could be neither sufficient nor practically helpful; there are children who are more vulnerable than other children (Skinner, Tsheko, Mtero-Munyati, Segwabe, Chinatamoto, Mfecane, Chandiwana, Nkomo, Tlou, & Chitiyo, 2006); there are elderly suspects who could be more vulnerable than children; there are mentally disordered persons who could be more vulnerable than other people.
Apart from the chronological age and the cognitive abilities (as determined or reduced by the developmental or functional cognitive status) there are also other factors that may lead to “vulnerability” and which could be personal, social, situational or others (e.g. a child who is also orphaned; a specific adolescent who is less exposed to social activities than other adolescents; a woman at the age of 30 who is recently widowed; a physically and mentally healthy man at the age of 40 who is unemployed and despair suffering conditions of poverty and hunger; the physical setting of the interrogation and the employed interrogation tactic which could make even physically, mentally and emotionally healthy adults to confess crimes that they had never committed, etc). The interaction of many different factors may also create a “condition of vulnerability” where a distinct factor could not do so (e.g. the obesity may be not clearly linked to a condition of vulnerability for the purposes of the administration of criminal justice, since the coexistence of obesity with something else may lead to such a condition of vulnerability).
The “condition of vulnerability” may be created by some risk factors or the interaction of some risk factors. The task is neither the strict categorisation of these risk factors (i.e. personal or social or situational or others etc) nor the tracing of their link to vulnerability in mathematical terms. There are people who are carriers of one or more of these factors that are found to be linked to the “condition of vulnerability” and who could be described as having a high likelihood of being in a condition of vulnerability when arrested or placed in police custody or when they are exposed to the criminal investigation or trial process. Therefore, even though the use of the term “vulnerable suspect” more works as a permanent charasterisation and a social label or stigma of the person and it is not commonly accepted (Rodgers, 1993; Vezeau, Peterson, Nakoa, & Ersek, 1998), a “vulnerable suspect” could be a description for each person who has a high likelihood, risk or susceptibility to get in a “condition of vulnerability” when being arrested, placed in police custody and exposed in the criminal investigation or trial process. A more person-centered definition (which focuses on the condition of the person) could be that “vulnerable suspect” is the description of the suspect who is in a specific or general sense susceptible, open to, at an increased chance or relative risk of physiologic or psychosocial harm when being arrested, placed in custody or exposed to the criminal investigation or trial process. Other reasoning was based on “lack of barriers” (McClure & Scambray, 1999) or “incapability” where “capable” is a person who has the mental and physical aspects of affectability or liability (Purdy, 2004). As Purdy (2004) notes trying to put the related concepts in an order “Prior to being vulnerable, one is capable of being affected by a circumstance providing the chance or openness or susceptibility to an outcome” (Purdy, 2004, p.29).
Vulnerability is not only the consequence of being vulnerable due to internal properties; there are independent situational factors that make things disadvantageous per se even for persons who are not “vulnerable” in any other sense. Namely, the roles of suspect and accused persons are roles of independent vulnerability where an otherwise capable person is considered to be up to a point in a condition of situational or social vulnerability. If the person is additionally vulnerable because of the existence of the said risk factors due to internal properties which has not to do with the criminal procedures, there is a possibility of increased vulnerability. On the other side the presumption of situational or social vulnerability which accompanies the roles of suspect and accused person is not unbeatable. Measure E actually concerns this increased vulnerability since the presumption of vulnerability of the suspects and accused persons is already used in all the other Measures for safeguarding their rights being the cornerstone of the Roadmap.
The relationship between “vulnerable suspects” and “vulnerability” could not be researched distinctly and specifically it its generality. Diagnosing that a suspect is “vulnerable” either independently from the criminal procedures or in relation to them could only be the outcome of a continuous individual evaluation. This approach may express the thesis of an experienced British criminal lawyer when saying “In my view, the definition of ‘Vulnerable’ is ‘a person who is vulnerable’” (Grey, 2013). Furthermore, if interviewing is a procedure which requires communicative abilities, custody may require something different; therefore, one person may be “vulnerable” for interviewing but not “vulnerable” for custody; one person may experience specific moments of vulnerability since another person may experience a differently vulnerable condition. What could be said is that the relationship between “vulnerable suspects” and “vulnerability” (person and situation) is a continuingly developing or changing phenomenon which could not be approached with a concrete theory.
While the term “vulnerable” seems to be highly individualised and open to circumstances (Purdy, 2004), the abstract pre-identification of such risk factors that may lead to a condition of vulnerability should be empirically based in the same way in which premature birth was found to be a risk factor for developing respiratory distress syndrome (Hack, Taylor, Klein, & Mercuri-Minich, 2000). The relationship between each of these possible risk factors (i.e. age, race, ethnicity, sex, loneliness, poverty, hunger, disorders, pregnancy etc) and different combination of these factors with the “condition of vulnerability” and the creation of “scales of vulnerability” to measure the extent of vulnerability would be interesting and very difficult multidimensional research themes (Adger, 2006; O’Brien, Eriksen, Schjolden, & Nygaard, 2004; Alwang, Siegel, & Jorgensen, 2001). However, stressing that age or pregnancy are such risk factors without reference to the empirical research base (if existent) of these statements seems to be at least an arbitrary way of setting new law.
The risk factors may be get known in different ways; what is needed is just to learn and regulate these ways reasonably. There are the risk factors that are self-reported (i.e. a suspect that reports “I have asthma”) or presently evident (i.e. a suspect that is blind). There are the factors that are peripheral (i.e. they are not specifically self-reported or presently evident to a third person, but they could be known through normal research). There are factors that may be silent or unknown (for anyone including the suspect) or even inexistent at a specific point of time. Behavior is an essential source of information. There is not any need either for a forensic psychologist to be omnipresent or for policemen, lawyers and judges to be forensic psychologists. Since the policemen, lawyers and judges are these people who are in contact and communication with the suspects, they could identify the existence or the sudden appearance of some factors that might lead to a condition of vulnerability; actually they may be the only who could do so during the different stages of the criminal procedure.
Which is the “condition of vulnerability”? While in medicine the risk factor of premature birth is researched with mortality being the point of reference, in justice that point of reference is more difficult to be approached. The proper or improper administration of justice is a not an evident, observable and undoubtable outcome like death; it is a more complex phenomenon which may be diagnosed at a late point of time or it may be never diagnosed. Eventually, if we need to see the result of the dysfunctionality of the justice system in order to confirm the existence of the vulnerability, the damage would be already done. Indeed, vulnerability as a recognisable condition (outcome-based measure) is not the same as to vulnerability as a set of probabilities (probabilistic measure). Anyway, being an easier task to describe the “condition of vulnerability” than determining and categorising the “vulnerable suspect”, and keeping in mind the preventive aspects of the necessity to diagnose vulnerability (Purdy, 2004), an indicative definition could be suggested. In this instance, the “condition of vulnerability” could be the degree where the purposes of the procedures of arrest, custody, interviewing, or trial cannot not followed without modifying them and adapting them to the needs of the suspects, and where if these procedures are followed without these modifications and adaption, then the risks of trauma (person-centered approach) and miscarriage of justice (justice-centered approach) are presently high. Borrowing definitional components from the researches on vulnerability to environmental changes, the more person-centered definition of “vulnerability” could concern the degree to which the suspect loses the ability to absorb the shock of accusation, the self-organisation, and the adaptive capacity in advance or in reaction to his/her exposure to the criminal procedures, so as he/she becomes susceptible to suffer unusual trauma from this exposure (Adger, 2006).
Commenting on the double epicenter of “vulnerability” this could be defined with reference to the person of the suspect and the possibility of causing physical or psychological harm. Further, it could be defined with reference to the administration of justice and the possibility of miscarriage of justice. The person-centered vulnerability is usually subject of forensic psychology since the justice-centered vulnerability is more subject to the classes of criminology. A complete approach of vulnerability could only be multidisciplinary. Beyond the theoretical competing conceptualizations of vulnerability which are also consisted of not clarified, vague and sometimes not operational concepts, vulnerability for lawyers remains “place-based” and “context-specific” (Cutter, Boruff, & Shirley, 2003).
Is there a clearly legal view?
Apart from running through the research to see any known risk factors that may lead to a condition of vulnerability, it should be reminded that the Measure E is about safeguarding the rights of vulnerable suspects. There is the impression that the emphasis is more put on the necessity of identifying the vulnerable suspects rather than on the practical side of the issue which is that of safeguarding the rights of these people, thus the governance of vulnerability. This issue may be simpler than the attempt to build a new theory of vulnerability and an overarching vulnerability research in the context of criminal justice or to proceed with an exhaustively large amount of studies indicating and confirming and challenging the factors that are considered to be risk factors. The issue of safeguarding the rights of vulnerable suspects may be viewed from the practical side of confirming the application of the already existing Measures (i.e. Measure A, Measure C, etc), inventing available modifications of the existing procedures (i.e. adding an appropriate adult, etc), and creating and applying new alternative procedures and tools (i.e. establishment of youth courts) in order to accommodate the needs of suspects who are in a “known condition of vulnerability”. This could be described as a clearly politico-legal view of Roadmap.
In the above instance, if the issue is the completion of the Roadmap with a few more strokes of the brush, one could say that the discussion about identifying vulnerability and risks factors that may lead to vulnerability might be only an issue for forensic psychologists. However, there are always the necessities of bridging the academic work with the politico-legal needs and establishing an effective communication between them. In addition, the peculiarity with the criminal justice is that usually there is not such think like a pre-known condition of vulnerability and this is an extension of the open definitional approach given for the “condition of vulnerability”. The Roadmap is not only a code of practice for policemen, lawyers and judges, but a foundation for a better system of justice, where justice may accept an interdisciplinary approach. Noting these acknowledgments, the vulnerability research in the context of criminal justice should not overshadow the necessity of governing the issue through the science of law; the laws change easier than the consequences of personal or social traumas.
The levels of Measure E
Referring to a “known condition of vulnerability” is necessary in order to keep the policemen, lawyers and judges out of the obligation to diagnose the existence of vulnerability, and to regulate just their obligation to treat the known vulnerability in a way that is considered to be correct, but this might be the third level of Measure E. Which is the first level? How does vulnerability get known? If vulnerability is reported as a “known condition” how does it confirmed and get “known” for the purposes of criminal justice? There are the situations where the suspects or accused persons themselves report their own vulnerability and they have demands; is there a “known vulnerability” in these situations? If so, we could all say “I am vulnerable” in order to have a treatment which could be considered privileged. There are the situations of hidden or unreported or even unknown vulnerabilities; should the policemen, lawyers and judge perform the roles of psychologists or try to exclude the existence of something without having indications or valid suspicions of its existence?
In order to reach the heart of the issue of safeguarding the rights of vulnerable suspects we need to cover the distance from identification to treatment. Therefore, the first level of Measure E is to “identify” the factors that have led or may lead to a condition of vulnerability. In my view without identifying and then confirming vulnerability we cannot activate a treatment for vulnerable suspects which is different than the treatment offered for “non vulnerable” suspects. In these terms my thoughts are that in the lack of sufficient vulnerability research in the context of criminal justice and as concerns the suspects and accused persons, the attempt of setting new safeguarding laws would be a premature decision.
Level 1: Identification
Creation of “good identifiers” is not the task, and identification does not have the meaning of attempting a positive detecting from a zero point. Identification was based on the theory of indicators. Using Gallopin’s (1997) definitional approaches, an indicator is an operational representation of a characteristic which summarises and provide information relevant to vulnerability. The indicator could be descriptive or normative, but it has an important value besides its face value, therefore it needs interpretation. The interpretation concerns firstly the indicators as such and secondly their relationship to vulnerability (Gallopín, 1997, p.14). In my view identification of vulnerability is an even more complex procedure which has at least the following four components:
- Being aware of the abstract existence of these risk factors
- Receiving the stimulus which is an indicator of the existence of risk factors
- Recognizing the received stimulus as such indicator
- Interpreting this indicator as relative to the risk factors / vulnerability
To “identify” any risk factors we must be aware about the theoretical existence of these risk factors in the abstract theory and empirically; therefore, to create a base of knowledge of scientifically sound risk factors and a set of relative interests and goals. This base was called “the indicandum” (Birkmann, 2006). The building of this “indicandum” is possible through the collection of data by accepting continuing educative and informative seminars. It is therefore believed that if do not have this “indicandum” we might not be able to receive or recognized any received stimulus as an indicator of vulnerability. Further, if our “indicandum” is not sufficient or is affected, this possibly will have an effect on the quality of the other processes; for instance, we might not have all the necessary or right information in order to complete the internal comparisons and find a relationship between the stimulus and vulnerability. The interpretation is the most important process which might send us the message to activate the alarm because something is going wrong with the specific suspect. The order of the components is not absolute, since I can obtain knowledge at a later point of time and recall a stimulus expressed or even interpreted in the past or I can make a research in order to get some knowledge after the receiving of the stimulus and in order to recognise it.
Level 2: Confirmation vs. Measurment
In their Australian research Dixon and Travis (2007) found that police officers were insufficiently aware of the need for caution when interviewing mentally ill suspects; the authors acknowledged that one aspect of the problem is the fact that the suspects do not raise the issue of their own disability. They further made suggestions on what was characteristically indicated that in some situations a good alternative way for identifying vulnerability is asking people about their own vulnerability. The rationale of this approach may be that even though they self-report a false vulnerability, anyway they will give you the opportunity to ask for a confirmation. This alternative way could be proved as very sophisticated if we see how difficult is to run through the theories and methodologies of confirming and measuring vulnerability, particularly in the context of criminal justice.
Using trained identifiers to catch and interpret indicators of vulnerability could be practically more useful if the risk factors were standard and if vulnerability was narrowly defined. Therefore, the identification of vulnerability using pre-known indicators is difficult and highly subjective. Treatment of peoples’ vulnerabilities could not exclusively depend on our subjective interpretation of an indicator; additionally, the relationship between “indicandum” and interpretation must also be based on sound science (Birkmann, 2006).
Although “vulnerability” is defined as “a degree”, there is a view that vulnerability cannot be measured (Moss, Brenkert, & Malone, 2001; Patt, Schröter, de la Vega-Leinert, & Klein, 2008) in terms that a number cannot be absolutely assigned to vulnerability. Actually, the methodologies for assessing vulnerability are equally confusing like the plurality of its definitions and this is has to do with the fact that vulnerability is not a really observable phenomenon like height or crime. It is therefore stressed that the notion of measurement of vulnerability concerns the transformation of the theoretical concept of vulnerability into observable operational concepts (Hinkel, 2011). Considering the importance of measuring vulnerability for treatment purposes, in the context of criminal justice and safeguarding the rights of suspects, it is thought that anyway we could not establish an exact analogy between the degree of vulnerability (problem) and the degree of treatment (response to problem). In other words we could not say that the rights of someone whose vulnerability score is 10 should be better or more than the rights of someone whose vulnerability score is 5 or we could not make an enormous catalogue of specific rights theoretically available for any vulnerability of any suspects. The rights as such are also not really measurable units; they either exist or not and their quality is unchangeable, since what concerns a vulnerability assessment in the context of criminal justice is the justification of an action or inaction in relation to some rights. Therefore, if the purpose is not to monitor the degree of safeguarding why should be important to measure vulnerability?
The request of harmonisation
The practical anticipation of known vulnerabilities could not be followed without the previous control and the detailed report of the current level of the other member countries concerning the implementation of old measures of the roadmap. Is there any common ground to discuss for the next step? We could not develop or perfect something inexistent, since the purpose of the roadmap is not to make the request of harmonisation more difficult by imposing unfamiliar innovating interventions to the systems of the member countries. Therefore, apart from creating a good theory about the ideal safeness for “vulnerable suspects” (which is something easy) we have to get the feedback from the member countries.
Adger, N. W. (2006). Vulnerability. Global Environmental Change, 16, 268 – 281.
Alwang, J., Siegel, P. B., & Jorgensen, S. L. (2001). Vulnerability: A view from different disciplines. Discussion Paper Series No. 0115 Social Protection Unit, World Bank, Washington DC.
Berkmann, J. (2006). Indicators and criteria for measuring vulnerability: Theoretical bases and requirements. In J., Birkmann (Ed.) Measuring vulnerability to natural hazards. Tokyo: United Nations University Press.
Bull, R. (2010). The investigative interviewing of children and other vulnerable witnesses: Psychological research and working / professional practice. Legal and Criminological Psychology 15, 5–23.
Cutter, S. L., Boruff, B. J., & Shirley, W. L. (2003). Social vulnerability to environmental hazards. Social Science Quarterly, 84, 242 – 261.
Dixon, D. & Travis, G. (2007). Interrogating images: Audio-visually recorded police questioning of suspects. Sydney: Institute of Criminology Press.
Gallopin, G. C. (1997). Indicators and their use: Information for decision-making: Part One—Introduction. In B., Moldan, S., Billharz, & R., Matravers, (Eds.) Sustainability indicators: A report on the project on indicators of sustainable development. SCOPE. New York: Wiley.
Grey, R. (2013) “Measure E- Special Safeguards for Suspected or Accused Persons who are vulnerable”. Internal proceedings of European Criminal Bar Association (ECBA), London, 16th March 2013.
Hack, M., Taylor, H., Klein, N., & Mercuri-Minich, N. (2000). Functional limitations and special health care needs of 10- to 14- year-old children weighing less than 750 grams at birth. Pediatrics, 106, 554 – 560.
Hinkel, J. (2011). “Indicators of vulnerability and adaptive capacity”: Towards a clarification of the science–policy interface. Global Environmental Change, 21, 198 – 208.
Janssen, M. A., & Ostrom, E. (2006). Resilience, vulnerability, and adaptation: A cross-cutting theme of the International Human Dimensions Programme on Global Environmental Change. Global Environmental Change, 16, 237 – 239.
Moss, R.H., Brenkert, A.L., & Malone, E.L. (2001). Vulnerability to climate change: A quantitative approach. Pacific Northwest National Laboratory PNNL-SA-33642. Prepared for the US Department of Energy.
O’Brien, K.L., Eriksen, S., Schjolden, A., & Nygaard, L. (2004). What’s in a word? Interpretations of vulnerability in climate change research. Center for International Climate and Environmental Research.
Patt, A. G., Schröter, D., de la Vega-Leinert, A. C., & Klein, R. J. T. (2008). Vulnerability research and assessment to support adaptation and mitigation: Common themes from the diversity of approaches. In A.G. Patt, D. Schröter, A.C. de la Vega-Leinert, & R.J.T. Klein (Eds.), Environmental Vulnerability Assessment. London, UK: Earthscan.
Purdy, I. B. (2004). Vulnerable: A concept analysis. Nursing Forum, 39 (4), 25 – 33.
Skinner, D., Tsheko, N., Mtero-Munyati, S., Segwabe, M., Chinatamoto, P., Mfecane, S., Chandiwana, B., Nkomo, N., Tlou, S., & Chitiyo, G. (2006). Towards a definition of orphaned and vulnerable children. AIDS and Behavior, 10, 619 – 626.
Tasmania Law Reform Institute (TLRI) 2006. Consolidation of arrest laws in Tasmania. Issues paper no. 10. Hobart: TLRI.