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

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.