Prof Yvonne Daly is Full Professor of Criminal Law and Evidence in the School of Law and Government at Dublin City University.
This blog post is based on work from COST Action CA22128 (ImpleMéndez), supported by European Cooperation in Science and Technology (COST). Prof Daly is Vice-Chair of this COST Action. Her LinkedIn Profile is here.
Effective and practical operation of legal and procedural safeguards is necessary in order to fully align with the Méndez Principles.
While rights may appear to be protected in law, the reality of practice and lived experience can be significantly different within and across jurisdictions.
Proponents of the Méndez Principles must continue to press for change, both in jurisdictions which are far from alignment, and those where alignment is more theoretical than practical in reality.
INTRODUCTION
At the core of the Méndez Principles (Principles on Effective Interviewing for Investigations and Information-Gathering, 2021) is the idea that investigative interviewing is a specialist endeavour which must be undertaken in a professional, skilful and regulated manner. The Principles require investigative authorities and information-gathering agencies to move away from confession-driven practices towards rapport-based interviewing, acknowledging that specialist training is necessary to achieve this shift. Professional interviewers need to be trained to plan interviews well, to build rapport, to ask open questions, to disclose evidence in a particular manner, and to ensure fairness to the interviewee throughout. The Principles also require recognition of interviewees’ vulnerability, and the provision of appropriate accommodations or supports where circumstances of heightened vulnerability require.
Last year, on the fourth anniversary of the publication of the Principles, the co-chairs of the original Steering Committee of Experts, Professor Juan E. Méndez and Mark Thompson, issued a statement including the observation that “the integration of safeguards for human rights protection is an integral part of effective interviewing.” This is an important reminder that a holistic, comprehensive implementation of the Principles requires not only training for those who conduct interviews, but systemic support for the Principles as a whole, including the 13 legal and procedural safeguards which are set out under Principle Two – On Practice.
LEGAL AND PROCEDURAL SAFEGUARDS
The 13 safeguards can be grouped into five categories:
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A significant concern which arises in relation to these safeguards is the difference between the law on the books and the reality in practice. Let’s look at three examples. In any given jurisdiction, we might be able to say on paper that a person has the rights outlined below, but how do they operate in reality?
The right to information
In law, a person may be entitled to information, but what happens in practice? A written notice of rights may be provided and law enforcement personnel may orally state some rights, and the reasons for arrest. However, such personnel may be so used to reciting cautions or listing off rights that they may do so in a speedy, unclear manner, meaning that a person has not been able to properly take in the information or understand it. The written notice may be complex and legalistic. Cognitive barriers may exist for an individual with particular communication difficulties or a lack of educational attainment. This may make it even more difficult for them to understand their rights. (See Gulati et al, “The collaborative development through multidisciplinary and advocate consensus of an accessible notice of rights for people with intellectual disabilities in police custody” (2022) 83 International Journal of Law and Psychiatry 101815.)
This issue was addressed by the European Court of Human Rights (ECtHR) in Krpelik v Czech Republic (Application no. 23963/21, 12 June 2025). Here the ECtHR (5th Section) found violations of Arts 6(1) (fair trial) and 6(3)(c) (legal assistance) of the European Convention on Human Rights (ECHR) where the applicant, who had a mild intellectual disability, had waived his right to a lawyer during police detention and questioning. The Court found that this was an invalid waiver, as the applicant had not properly understood his procedural rights. The authorities were aware of some communication difficulties with the applicant, knew that he had attended elementary school only and had had mental health difficulties from a young age. Accordingly, they were required to treat him as a vulnerable person and to take his condition into account when informing him of his rights, and when questioning him. The Court mentioned additional steps which could have been taken, including the provision of an easy-to-read version of the information on rights, or the provision of an intermediary to facilitate communication and make the information accessible to him.
A similar case was recently decided before the Court of Justice of the European Union (CJEU): Case C-530/23 Criminal Proceedings against K.P. [Barało], EU:C:2025:322. There the CJEU held that authorities must ensure that a suspect’s vulnerability is ascertained and acknowledged before interviewing them, in order to enable them to exercise their rights of defence practically and effectively. (See further Ancona and Canova, “Unpacking Barało: Suspect Vulnerability, Procedural Rights, and the Challenge of Effective Remedies” (2026) 11(1) European Papers 57–79.)
These recent European judicial decisions highlight the need for the right to information to be practical and effective in its operation.
Access to a lawyer
The ECtHR places quite an emphasis on the right to legal assistance as an important protection for suspect rights (Salduz v Turkey (Application no. 36391/02) 27 November 2008 (Grand Chamber); Ibrahim v United Kingdom (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09) 13 September 2016 (Grand Chamber); Simeonovi v Bulgaria (Application no. 21980/04) 12 May 2017 (Grand Chamber); Beuze v Belgium (Application no. 71409/10) 9 Novermber 2018 (Grand Chamber); Gorosabel v Spain (Application no. 15508/15) 9 May 2022 (3rd Section)), and of course it is listed in the Méndez Principles too. Within jurisdictions legislation or procedural regulations may formally provide for access to a lawyer, but how does this operate in reality? Research has suggested that suspects are sometimes dissuaded from accessing legal advice or having a lawyer present at interview, on the grounds that this might delay detention, or is unnecessary in the circumstances, or for other reasons. (See, for example, Skinns, “‘Let’s get it over with’: Early findings on the factors affecting detainees’ access to custodial legal advice” (2009) 19(1) Policing & Society 58.) Lawyers may also be passive, disinterested, or may lack the specialist skills necessary to properly represent individuals subject to an investigative interview. This can undermine the value of having a lawyer. Indeed, having a bad lawyer present during an interview may threaten the protection of rights more than having no lawyer present at all. (On poor lawyering generally see further Beazley, Panzavolta and Sanders (eds), Poor Defence Lawyering in Criminal Proceedings - A Comparative View (Routledge 2025))
Practically speaking, how does an interviewee contact a lawyer when detained? Who makes the decision as to which lawyer should attend? Is legal aid available? Is the threshold for access to legal aid appropriately set? Are lawyers generally available to attend police stations when called upon, particularly where such a call comes unexpectedly? Are lawyers properly trained for the specifics of representing an individual who is subject to an investigative interview? Are lawyers equipped to properly engage with highly vulnerable clients, or to avail of additional supports such as intermediaries?
Again, the practicalities of accessing the right need to be functioning properly to ensure that it is effective and not simply theoretical in value.
Access to interpretation
As before, access to an interpreter may be set out in law, but the reality of its operation may differ across jurisdictions or even within jurisdictions. Regulation, standardisation, and quality assurance may be lacking. In many jurisdictions, persons acting as interpreters need not actually have an interpreting qualification – being able to speak two languages is enough to undertake the role. The competency of interpreters may be questionable and there may be a lack of accountability and oversight. Interpreters may not be adequately paid for police station work. These concerns arise in relation to the interpreting of majority languages, but when speaking about minority languages, there may be even more difficulty in accessing a competent interpreter. Questions arise also around confidentiality requirements – interpreters are not generally subject to the same confidentiality requirements as lawyers, but probably should be. (See further Conway, Daly, and McEvoy “Interpretation in Police Stations: Lawyers’ Perspectives on Rights and Realities” (2021) 13(3) Journal of Human Rights Practice 606.)
Through these three examples we can see that while rights may exist on paper, the reality of their operation and practice may not ensure their effectiveness. It is important to remember also that there can be differentiation in access to rights even within jurisdictions. Geography can make a difference – whether one is to be interviewed in an urban or rural setting, for example, may impact on the availability of a suitably qualified lawyer to attend, or access to an interpreter. There are concerns that the nature of the offence might impact on how readily an individual is given access to their rights in certain settings, or how well-trained the interviewers are. Rights are likely to be better protected where law enforcement personnel are well-trained, and understand the importance of a holistic approach to the implementation of the Méndez Principles to ensure effective interviews, though again systemic support is needed in terms of resourcing, oversight and implementation.
PRESSING FOR CHANGE
Across jurisdictions legal and procedural safeguards may be protected to differing levels. In jurisdictions which are very far away from alignment with the Principles, it can be extremely challenging to try to bring about change. It's important to acknowledge also though that it can be very difficult to continue to argue for necessary improvements within systems which appear on paper to be functioning well, though the reality of practice and lived experience tells a different story. But change can come in both situations. Those working within the system must continue to advocate for change; lawyers must insist upon their clients’ rights when undergoing interviews; where a lawyer joins a case downstream they should look back to the point of interview and consider any lack of provision for their client’s particular needs; police officers need to understand the value of upholding legal and procedural safeguards so as to ensure the fairness and effectiveness of their interviewing processes; and, those who train investigative interviewers must place the legal and procedural rights front and centre, alongside rapport, planning, and evidence disclosure.
Those of us who support the Principles must continue to be proactive in promoting their importance to those in authority. We need to continue advocating for change, sharing experiences across jurisdictions, and communicating the science, law, and ethics which underpin the Méndez Principles.
