Felicity Gerry QC1, Professor Penny Cooper2,
1 Queen’s Counsel London and Darwin speciliasing in complex cases involving vulnerable suspects. Leads the Indigenous Justice and Exoneration Project at Charles Darwin University. Affiliated member research group on Fundamental Rights and Constitutionalism at the Vrije Universiteit Brussel. Member of Management Committee of The Advocate’s Gateway producing toolkits for advocacy with vulnerable people and expert in an EU wide project on rights of children with mental disabilities. 9, Carmelite Street, London firstname.lastname@example.org and School of Law, Charles Darwin University, Casuarina, Darwin email@example.com
2 Co-founder and chair of “The Advocate’s Gateway”, Inns of Court College of Advocacy, London; Visiting Professor of Law and leader of ‘Law in Practice’ module at University of Roehampton, London; visiting senior research fellow at Institute for Criminal Policy Research, Birkbeck, University of London; Honorary Visiting Professor of Law at City University, London; Barrister, Academic Associate at 39 Essex Chambers, London.
The vulnerable accused: What needs to change in an adversarial system?
Research and practice developments in the last decade are slowly shifting the criminal justice process in relation to vulnerable accused. The authors critically analyse the current position and suggest there is still need for fundamental change. In cases involving vulnerable accused, it is not sufficient for a judge only to give a ‘special arrangements’ direction. Case preparation requires careful attention to how an accused person’s vulnerability is relevant to investigatory interviews, decisions to prosecute, fitness to participate in the trial, criminal responsibility, particular defences and the accused’s presentation in court. Fair trials depend on proper arrangements that take into account the vulnerability of the accused and remove barriers to their effective participation. The authors will propose a framework for a multilayered approach to defending a vulnerable person that goes far beyond determination of fitness to plead; it will include the latest research and practice in investigative interviewing when the suspect is vulnerable, the use of interpreters, the use of intermediaries, research on perceptions of judges and juries when the accused is vulnerable (in particular has when the accused has autism spectrum condition), the effective use of expert evidence and recent developments in appellate case law in relation to procedural fairness. Both authors have pioneered alternative approaches in England and Wales which have become embedded into the criminal justice system and have brought their expertise to other jurisdictions. This paper sets out the minimum requirements for a fair trial, the procedure that ought to be adopted in case investigation, preparation and presentation and the importance of expert evidence for vulnerable accused people. The authors will suggest that such adjustments are vital to the fairness of hearings and to the avoidance of miscarriages of justice.
Queen’s Counsel London and Darwin specializing in serious and complex cases involving vulnerable suspects. Leads the Indigenous Justice and Exoneration Project at Charles Darwin University. Affiliated member research group on Fundamental Rights and Constitutionalism at the Vrije Universiteit Brussel. Member of Management Committee of The Advocate’s Gateway producing toolkits for advocacy with vulnerable people and expert in an EU wide project on rights of children with mental disabilities.