May 02, 2011

Storming the Bastille….or at least the Police Station

The reform of the garde à vue regime in France (the period of police detention and interrogation) has taken yet another dramatic turn, compared by one lawyer to the storming of the Bastille!  The Cour de cassation has ruled that, rather than wait for the reform legislation to come into force on June 1st as ordered by Parliament, the new rights for suspects should take effect immediately.  

Friday 15th April 2011 was a momentous day for French criminal justice.  Within moments of the legislation reforming the garde à vue (GAV) appearing on the statute book, the full court of the Cour de cassation ruled that the new rights of the suspect to be informed of her right to silence and to have a lawyer present during the GAV should also apply to those detained on illegal immigration grounds, and in all cases, should take effect immediately, without the need for legislation. Why the sudden change of heart and the direct conflict between the approach of the executive and Parliament on the one hand and that of the judiciary on the other?  As discussed in an earlier post, this has already been the subject of a great deal of judicial attention.

In July 2010, the Conseil constitutionnel ruled that the current garde à vue regime, where the suspect is not informed of her right to silence and has no lawyer present during her police interrogation, was in breach of Article 6 of the European Convention on Human Rights (ECHR) and so was unconstitutional.  Recognising the scope of change that this necessitated, the Conseil ordered that its decision would not come into effect until July 2011, allowing the government time to put in place appropriate legal reform.  On October 14th 2010, the ECtHR in Brusco v France, gave a clear judgment that without these rights, French suspects were not receiving a fair trial under Article 6 ECHR.  A few days later, on October 19th 2010, the Cour de cassation (but not sitting as the full court) confirmed this ruling, but in line with the Conseil constitutionnel, agreed that the consequences should not take effect until July 2011.

However, sitting in its most authoritative form as the full court, the Cour de cassation on Friday 15th April 2011, ruled that Brusco should be relied upon directly and suspects should be allowed access to a lawyer throughout their garde à vue, including while they are being interrogated by the police.  To do otherwise (ie to wait for legislation) places France in breach of the ECHR.  As a result, the government announced that the law was to take effect immediately and the the Minister of Justice, Michel Mercier, ordered prosecutors (who are responsible for overseeing the conduct of the GAV) to implement the reforms that very afternoon.  The result is that a person cannot be convicted on the basis of statements made without the opportunity to consult with, and be assisted by, a lawyer.

The result has been a dramatic start to the reform's implementation, but also a chaotic one.  The court's insistence that France should apply the jurisprudence of the ECtHR directly and not prevaricate by waiting for a decision against France is welcome.  France, like many other states, denied initially that the ruling in Salduz v Turkey called into question its own procedural protections for suspects.  On the other hand, allowing lawyers to be present during the interrogation of the suspect and indeed throughout the period of the garde à vue (which may last up to 48 hours) is an enormous change from the current arrangement whereby suspects are permitted a 30 minute consultation with their lawyer.  Even the legislation now in place has been criticised as rushed and so ill-thought through.  The circumstances under which access to a lawyer may be delayed are unclear; lawyers and police will require training; legal aid must be put in place to ensure the right to custodial legal advice is effective; and adequate facilities must be made available for more extensive lawyer-client consultations.

Reports of the first weekend suggest that lawyers and police coped with this somewhat hurried introduction of the new regime.  For lawyers, the greatest bone of contention is pay.  They previously received €61 for the half hour police station consultation.  Assuming around three hours work under the new regime (a conservative estimate) lawyers claim they should be paid €366 for the first 24 hours.  Instead, they have been promised €300 for the first 24 hours and €150 for the second. Some doubt they will get even this as the standard fee for an instruction case (which will require visits to the client in custody and may last between one and two years) is €900.  Compared with this, €450 for two days seems optimistic. As a result, a dozen or so local law societies have called on their members to continue operating under the old procedure until adequate remuneration is in place.  Lawyers have called for a national strike on May 4th.

All eyes have been on the activity of the first few days, with reports of requests and lawyer attendance in various parts of the country.  In Paris, of the 600 GAVs over the weekend 15-17 April 2011, there were 362 requests for lawyers, of which 147 resulted in a lawyer attending.  In figures, this is a 60% request rate, with a 40% response rate to requests and lawyers attending overall in 25% of cases.  In Lille, there were 94 GAVs, but apparently, no requests for a lawyer.  Many lawyers report cordial relations, but whilst presence at interrogation and confrontation is being granted, others complain of inadequate access to statements in the case dossier.  In one instance, a lawyer in Paris wished to ask an officer a question. He refused to allow this and a heated argument took place, resulting in the lawyer being excluded.  Others think that police will soon see the advantages of the presence of a lawyer who can smooth the process and even encourage the suspect to confess.  Lawyers on the Côte D'Azur report a problem-free transition, with sufficient lawyers to cover the requests (even despite victims now also being allowed a lawyer to be present), as the number of GAVs is reducing.

Money is also an issue for suspects.  In Lorient, a person suspected of assault did not qualify for legal aid, could not afford the €150 per hour fee and so declined to have a lawyer present.

The police have established a hotline and an internet site to advise on questions of the new procedure.  Their main concern however, seems to be that of space.  Whilst rooms can be vacated for the current 30 minute consultation requirement, the reform will mean that lawyers are present at the police station much more.  Some stations say there is barely a spare chair, let alone a room and police have questioned how they can implement the reform in Beziers, where three officers are already required to share a work space of 15 square metres.  This, of course, also boils down to money.  The impact study for the reform estimates that 3,600 police stations will need to be adapted at a cost of €21 million.  The police have also suggested that clear up rates will fall and investigations will be slowed down, as officers will have to wait up to two hours for the lawyer to arrive before they are permitted to begin any interrogation of the suspect.  They feel the presence of an outsider will undermine their work.  They need to be close to the suspect and engage in a certain amount of bluffing to get the information that they want.

And of course, the first cases are being reported of evidence being excluded for procedural irregularity and so the accused being acquitted. In one case, reported on 22nd April 2011, this was despite the accused's confession and having been identified in the confrontation carried out at his request.  In another, reported on 27th April 2011, the delay of an hour and 45 minutes before contacting the lawyer was in breach of the suspect's right to custodial legal advice.  



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