June 28, 2015

Written records, police stops and judicial review

For the first time in France, on Wednesday 24 June 2015, the Court of Appeal in Paris held the French State responsible for police action in carrying out identity checks that were held to be discriminatory and ordered it to pay €1,500 in compensation to five individuals.

Thirteen men, all of Black or North African ethnicity, claimed to have been discriminated against when they were subjected to police identity checks, which they said were carried out purely because of their ethnic background. After losing their case at first instance in October 2013 they received the support of the Rights Ombudsman (Défenseur des droits), who filed a written submission to the appeal court. The complainants claimed that they had been stopped repeatedly by the police and asked for their identity documents, yet these routine checks never resulted in a conviction or even an arrest. The Ombudsman noted the vague legal requirements for these checks and the absence of any written record, making it impossible to verify how many identity checks are carried out by the police each month, the grounds for these checks or any information about those they stop and question. The absence of any written records also makes it difficult for people to contest the validity of these identity checks, including whether they have been carried out in a discriminatory way.

In England and Wales, the Police and Criminal Evidence Act 1984 (PACE) introduced record keeping requirements for police stopping and searching a person. The objective of this requirement was to enable police activity to be monitored and reviewed, to ensure that officers individually and generally, were acting within the law. A copy of the stop and search record should be given to the person searched and a copy retained by the officer. Statistics on the ethnicity of suspects are also compiled. These have been important in challenging the legality of police stops, most recently those carried out under s.44 Terrorism Act 2000, using (since repealed) exceptional powers that did not require any reasonable suspicion of criminal behaviour to justify a stop within a specified area – rather like the written authorisation that the French public prosecutor may provide for identity checks in a specified location.

The complainants in this case were not able to rely on official statistics to demonstrate police bias, as it is against the law to record ethnic, racial or religious characteristics in public statistics in France. Under the French republican conception of citizenship, the State should not be concerned with the religion or ethnic origins of its citizens, as it does not recognise any community, other than the national community. Thus, the French Constitution proclaims in its first article that “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion.” Proposals to record religious or ethnic characteristics have been met with ferocious opposition and likened to the obligatory registering of Jewish people by the Vichy regime; the French police compiled this information and used it to arrest and deport Jews to extermination camps during World War II. Instead, the complainants relied on a 2009 study carried out by CESDIP (Centre de Recherches Sociologiques sur le Droit et les Institutions pénales), in which researchers observed 500 identity checks in two sites in Paris and which concluded that there was an overrepresentation of people of Black or North African heritage. Thus, in one site, 35% of passers-by were black, yet black people represented 86% of the people checked.

Charities are campaigning for the introduction of on-the-spot records similar to the stop-and-search forms in the UK and, more generally, for a change in the legislation and in the police mind set. The introduction of these forms was an election promise of President Hollande in 2012, but it was ultimately put aside in order to avoid antagonising police unions. Police representatives are strongly opposed to the measure, which they perceive as pointing the finger at the police and as another, unwelcome, obligation to justify themselves.

This is also how the introduction of such record keeping was perceived by the police in Britain too. In order to get around the requirement to provide legal justification for, and a written record of, the stop, officers argued that if a person had ‘consented’ to being searched, it was not a ‘PACE search’ and so needed no record. This underlines the need to convince the police of the value of changes, if they are to implement them effectively. It is hoped that the introduction of such records in France would mean a fall in the number of police identity checks. A tightening of the legislation, introducing objective reasons for such checks, is also called for. The experience in England and Wales suggests that whilst legal reform is essential, thought also needs to be given to training in order to ensure that the police and other legal actors embrace fully the legal changes and ensure their effective implementation.

France’s criminal justice process has its roots in inquisitorial procedure and it still relies upon the centrality of the judicial role as an important safeguard against the abuse of power and a guarantee of the rights of the accused. The police are under the supervision of the public prosecutor (a judicial officer under French law) when conducting identity checks. However, this supervision is very broad in nature and is more of a model of legal accountability and authority, rather than of surveillance or the checking of individual actions. In the present case, the complainants’ identities were checked in compliance with the written authorisation from the public prosecutor, which permitted identity checks to be carried out in a specific area, broadly justified by “the crowded, specific and sensitive nature of the site”. However, it was the absence of any effective way of monitoring or reviewing these police actions that was found to be problematic. The actions and decisions of the police were not, in fact, subject to any judicial supervision. Whilst the police in this case were acting under the public prosecutor’s authorisation, the decision published on Wednesday stated that the absence of any recording prevented any form of judicial review and therefore constituted a breach of Article 13 ECHR, which guarantees the right to an effective remedy.

Jackie Hodgson & Laurène Soubise

November 18, 2011

French lawyers fail in their challenge to the new garde à vue regime

For the moment, this is the end of the line for French criminal lawyers who have challenged the new garde à vue regime. They claimed that it failed to provide those detained by the police with defence rights that were effective. With one minor reservation, the Conseil constitutionnel disagreed, holding the reform to strike the appropriate balance between the rights of the defence and the police duty to investigate crime and bring offenders to justice. The reform of April 2011 does not contravene any constitutional right or freedom.

In the decision of the Conseil constitutionnel handed down earlier today, several challenges to the April 2011 reform of the garde à vue were grouped together and responded to in a single decision.

The applicants argued that the provisions of the code de procédure pénale (CPP) failed to respect the rights of the defence, the right to a fair trial and the principle of contractoire as set out in the preliminary article to the CPP. In particular, they criticised the absence of any right to consult the dossier before an interview or confrontation, or to take copies of the evidence; the possibility to interview the suspect before the lawyer arrives; the limit of 30 minutes for the lawyer-client consultation; and the restriction of legal assistance to interviews and confrontations, to the exclusion of other acts of investigation such as searches. The power of the police to prevent the lawyer asking questions and to terminate an interview and ask for a replacement lawyer is also objected to, alongside the power to delay the suspect's access to a lawyer.

The Conseil did not consider any of these points to have merit. It pointed out that no conviction can be based on the statement of a suspect who was not given access to a lawyer, that the suspect is informed of her right to silence immediately she is placed in garde à vue, and can ask for a lawyer in interviews and in confrontations. The lawyer is able to access key documents - the custody record, any medical certificate and any statement the suspect has already made.

The Conseil did not entertain the extensive demands of the applicants who sought to extend the role of the defence lawyer. It emphasised the garde à vue as a necessary part of the police duty to investigate crime and bring offenders to justice. Its decision in July 2010 and the resulting reform recognised the increased importance of this phase in the criminal process and so ensured corresponding defence guarantees. Furthermore, the measures challenged are not designed to establish the legality of the investigation or the evidence obtained or indeed of the validity of the decision to place the suspect in garde à vue. At this preliminary stage, no decision to prosecute has been made on the basis of this information and any challenge to the evidence will take place during the instruction or at trial. The lawyer is given access to all the douments that are relevant ie those pertaining to the garde à vue procedure.

This part is particularly interesting, as it emphasises the preliminary nature of the garde à vue within the investigation and its separateness from any decision to prosecute. Evidence is provisional and untested. In contrast, the applicant lawyers' challenge is based more on the idea of the garde à vue as the first stage of the formal accusation, triggering full Article 6 ECHR rights, inclulding those of disclosure.

The Conseil goes on to list the various guarantees afforded the suspect such as being told of the date and nature of the offence, the legal time limts for detention and the conditions under which the lawyer may assist the suspect, concluding that this ensures that the suspect benefits from effective defence assistance. Whilst there are circumstances in which the suspect may be interviewed without a lawyer, including extreme circumstances that require the written and reasoned authority of the procureur or the juge des libertés et de la détention, nevertheless it is the responsibility of the judicial authority to weigh up the probative value of any evidence obtained as a result.

The one reservation expressed by the Conseil was in relation to a person held as a witness, but who then becomes a suspect. If the police wish to detain the suspect, this must be done through the garde à vue procedure, which will ensure access to a lawyer. However, if the suspect remains of her own volition, the police can take a statement without the need to resort to the formal garde à vueprocedure and so avoid the presence of a lawyer. This is what used to be referred to as "helping the police with their enquiries" in England and Wales, where the suspect attended the police station as a 'volunteer' free to leave at any time, rather than under arrest. The Conseil noted (at para 20) that in order to respect the rights of the defence, a person cannot be interviewed, or continue to be interviewed, once she becomes a suspect and could be placed in garde à vue, unless she is first informed of the date and the nature of the offence of which she is suspected, and of her right to leave the police station at any time. Provided these conditions are met for those questioned as a suspect but not place in garde à vuefrom now on, there is no constitutional challenge. There is no requirement, however, to provide the suspect not held in garde à vue with access to a lawyer.

This decision will be a disappointment to lawyers, who have continually pressed the French courts to give the fullest possible effect to the Salduz line of decisions from the European Court of Human Rights (see earlier posts). They have had a remarkable degree of success, but this looks to be the end of the line for the time being.

October 13, 2011

The new garde à vue regime: too many rights or too few?

Six months on from the major reform of the garde à vue (GAV) procedure in France, the detention and questioning of suspects is no less controversial. The number of detentions has fallen, as has the number of confessions and the clear up rate. Both police and lawyers complain of inadequate material conditions, remuneration and personnel. But more significantly, the legal regime itself is severely criticised by lawyers for providing inadequate due process protection - and by police for providing too much. Is this a criminal justice in crisis, or simply the predictable complaints of legal actors on different sides of the criminal justice fence?

As described in previous posts, the case law of the European Court of Human Rights (ECtHR) was the principal driver for change in France, as elsewhere such as Scotland, the case of Salduz v Turkey setting the ball well and truly rolling. In June of this year, the European Union (EU) published the draft Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. Although it has been opposed by a number of Member States, including France, it provides further indirect pressure towards a stronger role for the criminal defence lawyer.

The figures on suspects receiving legal advice in police stations in France vary across regions. Some reports are of a 50% request rate and then a 50% attendance rate. In Paris, there were around 50,000 GAV between 15 April and 30 September 2011. 28% of suspects requested a lawyer and these were satisfied in 74% of cases - ie around 20% of suspects had a lawyer present.

Assessments of the new procedure report that the number of GAV is down by 200,000, just over one quarter. Although sometimes reported in somewhat alarmist terms, this is not necessarily a bad thing. The huge increase in the use of GAV for even minor offences was one of the reasons for the reform. We also need to look at the statistics a little more closely. The figure of one quarter masks differences in numbers between serious and minor offences. The reform appears to have had the desitred effect, in that the number of GAV in traffic offences has halved. The numbers of GAV in more serious offences have therefore declined by much less than one quarter.

The police complain of the increased paperwork and administration associated with the new reform and insufficient personnel can only make this worse. In January 2010, for example, there were 1,053 administrative posts such as switchboard and reception work, that were being carried out by police officers. However, whilst there may be some extra paperwork for the new GAV regime, there are also savings through reduced numbers. The police report that traffic offences, shoplifting and simple drugs possession cases are more likely to proceed staright to charge without the need for detention and questioning. This is a much more effective and appropriate use of resources - these are cases that should not have been dealt with through GAV in the first place.

Arrangements for providing duty cover differ across the country. Whilst some areas have sufficient lawyers, others find themselves having to cover distances of up to 100km. From the police perspective, this can create additional delay and a concern that fewer cases can be dealt with.

The confession rate is reported to be down by 40% and the police clear-up rate by 2.5%. Predictably, the police claim that more suspects are exercising their right to silence on the advise of lawyers. However, there is no support for this. It is not clear how many of those remaining silent have legal advice; and where they do, silence is not necessarily the result of that advice. My own research in the first years of similar reforms in England and Wales, found that suspects tended to remain silent despite (rather than because of) the legal advice they received. (M McConville & J Hodgson Custodial Legal Advice & the Right to Silence, RCCJ Study 16, 1993). The correlation is not so much that legally represented suspects are silent, but that silent suspects are more likely to request a lawyer.

The police also attribute the falling confession and clear up rate to the fact that they cannot establish a 'relationship' between the suspect and investigator during the GAV. Unfortunately, research suggests that the kind of 'relationship' established between police and suspect in the absence of a lawyer can sometimes be an unhealthy one, in which suspects find themselves pressured to confess. For many, this reform has signalled the end of the culture of confessions as the evidential centre piece. Careful thought needs to be given to ensuring that investigators can questions suspects effectively, whilst avoiding the abuse of power that can follow from equating a confession with 'the truth'.

For their part, lawyers remain dissatisfied with the extent of the April legislation. The GAV reform was the direct result of a ruling by the Conseil constitutionnel, relying on Salduz. As described in earlier posts this was through the QPC (la question prioritaire de constitutionnalité) procedure which provides a relatively rapid response to questions of constitutional importance. Now the new legal regime too has been challenged through this procedure.

Whilst lawyers have access to suspects before and during police interrogation, they claim that this does not enable them to provide effective legal assistance as envisaged by the ECtHR. In order to advise their clients properly, they say that they need access to all material evidence in the dossier relating to the accusation. This will prove very controversial. Clearly, the defence lawyer needs to know the nature of the cases against the suspect if she is to advise properly, but the sharing of evidence and witness statements will need to happen in a way that does not compromise the security of witnesses or othe investigation. It is also interesting to consider what the procedural model is here? Is this an inquisitorial or an adversarial investigation? The ECtHR has made it clear that the defence role should go beyond that of passive observer; her presence is to represent the accused once she is under suspicion. Is the defence present therefore to participate in the investigation? Can and should she also actively represent the interests of the suspect in doing this? Or is her role to begin the more partisan task of preparing the defence case? It seems that France has yet to reconcile the more accusatorial and active defence role required by the ECtHR, with the historical French model of a more centralised judicial enquiry.

Defence lawyers also reject the passive role that has been assigned to them during police interviews. They may be present, but they may not intervene; any questions may only be asked at the end of the interview. Clearly this limits their utility and reduces their role to one of witness rather than participant. In ECtHR terms, it does appear to reduce their ability to provide effective defence assistance - keeping them in a subordinate position in relation to the police.

And finally, lawyers claim that their presence should not be limited to suspects held in GAV, but should extend to other investigative acts. This echoes one of the provisions in the draft Directive that is objected to by Belgium, France, Ireland, the Netherlands and the UK. The draft Directive speaks of the lawyer's presence at procedural or evidence-gathering acts where the suspect would be present. The French objection seems to address the broader issue of the lawyer's participation in the enquiry once a person is a suspect - even if she is not placed in GAV. The argument is that in order to respect the principle of equality of arms, fundamental defence protections should not depend upon physical detention.

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.  

March 29, 2011

'The Wire' and 'Spiral': Why are lawyers always the bad guys?

Do criminal defence lawyers ensure the protection of the innocent and the proper functioning of the legal process, whilst also keeping a check on the investigation authorities?  Or do they protect criminals and place obstacles in the path of truth and justice?

As the EU begins to look at legislating the right of suspects and accused persons to have access to legal advice (measure C in the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings) it is interesting to reflect on the portrayal of criminal defence lawyers in TV dramas. The connection?  Apart from the interest in representations of law and legal process in popular culture, it provides a different insight into comparative portrayals of the defence role across different legal procedures.  

Dramas such as the excellent American TV series "The Wire" or the equally compelling French series "Spiral" (Engrenages), portray criminal lawyers in a poor light, often identifying them with their clients - the drug dealers and murderers who the police, prosecutors and juges d'instruction battle to bring to justice.  Perhaps this is unsurprising, as the profession itself does the same - often seeing commercial lawyers acting for huge multinationals as having more status than criminal lawyers who represent those (mostly indigent) persons accused of criminal offences.  

These TV dramas are set within two very different systems of criminal justice.  The American system is adversarial, premised upon the belief that two equal and opposing parties arguing for each side is the most effective way of discovering all the relevant information and so the truth.  The defence is half of the case and so crucial.  Without it, the trial court is deprived of relevant material on which it can properly base its decision.  The French process is more inquisitorial. Rather than the gladiatorial idea of two opposing parties, it favours a centralised judicial authority, charged with investigating the truth.  The defence role complements, rather than opposes directly this function.  The role assigned to the defence lawyer in these two procedures is very different.  In one, she is expected to engage vigorously on behalf of the accused at every stage in the process; in the other, her role is ultimately subordinate to the primary (neutral) evidence gathering role of the magistrat or judicial officer.

But there is also a wider defence function.  In both types of criminal procedure, the role of the lawyer is not only important in presenting the accused's case, but also in ensuring the integrity of the process.  This might be making sure that detention times are not exceeded, or that suspects are questioned in proper conditions.  This protects not only the suspect, but also the proper functioning of the system - ensuring that evidence produced is reliable.  Furthermore, research has shown that the pre-trial investigation is dominated by the police in inquisitorial as well as adversarial procedures.  Judicial supervision is distant and bureaucratic and it is only in a tiny minority of cases (around 4% in France) that a judge is even expected to play a more proactive role.  This underlines further the importance of the defence function in ensuring a full and wide ranging investigation, as well as representing the accused at trial.

However, despite the importance of the defence function, research has shown that, even in procedures where the defence role is properly adversarial, such as the USA and England and Wales, the primary problem with defence representation is that it is insufficiently adversarial, often leaving the interests of the accused inadequately protected.  This is often through a lack of resources, but also through a lack of professional ideological commitment to the criminal defence role.

In stark contrast to this, portrayals of lawyers in popular TV series such as 'The Wire' and 'Spiral' are as overly adversarial, corrupt and ready to ensure the defendant's acquittal at all costs.  If there is such antipathy to the defence role in a system where her role is properly adversarial (like the USA), then it is hardly surprising that it is cast in such negative terms in a country where, in theory, the defence acts as a form of counter-reflex to a centralised judicial enquiry.

But, given the empirical realities of European pre-trial procedures and the importance of the defence role in protecting the rights of the accused and in ensuring the proper functioning of the system, we need to move away from the 'lawyer as bad guy' mentality.  After all, it is a result of the determined efforts of lawyers (not police or prosecution) that miscarriages of justice have been brought to light.

In the coming months the European Union (EU) directive will need to go beyond procedural differences, and set out a core defence function that applies to all 27 Member States - whether their legal tradition is more adversarial, inquisitorial or post-communist.  This proved impossible the last time around.  States could not agree on the proposed Framework Decision that set out, amongst other things, a right for suspects in all Member States to have access to legal advice whilst detained and questioned by the police.  That was back in 2004, under an EU structure that required unanimous voting. Much has changed since then.  Post the Lisbon Treaty, qualified majority voting (not unanimity) is required and rather than trying to agree on several safeguards in one measure, the Roadmap sets out five key safeguards to be agreed one at a time.  There should also be less room for disagreement now that the European Court of Human Rights has set out the importance of effective custodial legal advice as a crucial part of the accused's right to a fair trial under Art 6 (3) (c) of the European Convention on Human Rights in the case of Salduz v Turkey.  This decision has had an impact across a number of jurisdictions and has set a new benchmark for custodial legal advice - where lawyers are key criminal justice players, not 'bad guys'.

February 03, 2011

Extending the right to legal advice to suspects in police custody in France

This Blog entry looks briefly at the current reform of the French garde à vue(the period of police detention and interrogation) - the suspect's right to a lawyer during her detention by the police and most importantly, having a lawyer present during police interrogation.  It highlights the influence of the European Court of Human Rights and some unresolved issues such as who, ultimately, should be responsible for the garde à vue.

On Tuesday 25 January 2011, by 320 votes to 32, the French National Assembly voted to adopt a government reform that will extend the presence of the defence lawyer (the avocat) during the police detention and interrogation of criminal suspects (the garde à vue).  

Currently allowed only a 30 minute consultation with her lawyer, the suspect will be allowed access to legal advice throughout her detention in garde à vue and significantly, during her interrogation by the police. The lawyer will, for the first time, have access to any statements made by the suspect, though not to any other police evidence. The reform will also require the police to inform the suspect of her right to silence.  

Against a backdrop of increasing numbers of suspects held in garde à vue (this has doubled in 10 years), where detention is seen as routine rather than exceptional and suspects are held in poor conditions and subjected to humiliating treatment (strip searches were reported as routine, even in minor offences), this is a reform that has followed a number of twists and turns and has been influenced by the decisions of European and domestic court rulings.  A rather more modest version of the reform was first proposed in March 2010, along with more radical proposals to abolish the current role of the juge d'instruction and place the public prosecutor (the procureur) in charge of all criminal investigations, as recommended by the Léger Commission in September 2009.  However, the months that followed saw a number of judicial decisions that forced the government to adapt its planned reforms quite significantly.  

Firstly, the European Court of Human Rights (ECtHR) in the case of Medvedyev v France cast serious doubt on the status of the procureur as a judicial authority.  The procureur's status as a magistrat makes her a judicial authority under the French constitution.  She is responsible for the conduct of the garde à vue and oversees around 96% of criminal investigations.  The remaining 4% are conducted by the juge d'instruction.  This is a small, but not insignificant number - these are the most serious cases and include those of political corruption and fraud such as the recent investigation into former President Chirac and the Bettancourt affair.  As the procureur is under the heirarchical authority of the executive and the juge d'instruction is not, passing responsibility for these cases to the procureur would remove a crucial independent element from the pre-trial process.  (See discussion of this in Washington & Lee Law Review 2010).  The French government refused to acknowledge the implications of the Medvedyev decision, in which the ECtHR held that the juge d'instructionis a judicial authority because she is independent of the executive and she is not a party to the case.  The procureur fails on both these grounds: she is not independent of the executive and she is a party to the case as the public prosecutor.  The government would not admit that Medvedyev clearly called into question the judicial status of the procureur.  Then came Moulin v France, which spelled out clearly that the procureur was not a judicial authority for the purposes of Art 5(3) ECHR (authorising the police detention of a suspect).  This was also the decision of the Cour de Cassation in a decision in December 2010.  There was no longer room for denials and the plan to abolish the juge d'instruction was dropped.

Secondly, the suspect's right to custodial legal advice has been litigated in a variety of French courts, relying on the ECtHR decision of Salduz v Turkey.  In July 2010, the conseil constitutionnelruled that the current garde à vue regime is unconstitutional because the lawyer is not present (the suspect is allowed only a 30 minute consultation) and the suspect is not told of her right to silence.  (See the brief account of this decision in Criminal Law & Justice Weekly 2010). Interestingly, this was made a statutory requirement in 2000 but then removed several years later by legislation sponsored by the then interior minister....none other than Nicolas Sarkozy!  In Brusco v France, France was itself condemned for failing to tell suspects of their right to silence as well as the inadequacies of custodial legal advice.  And, as if that were not enough, in October 2010 the Cour de Cassation ruled that legal advice could not be delayed systematically in the most serious cases (drugs trafficking, organised crime and terrorism).  Any delays must relate to the specific facts of the case.

The original proposal to allow a lawyer to be present in the police interrogation of her client only after the first 24 hours of detention was clearly untenable and the reform now permits her presence from the outset and throughout.  The Human Rights Commission, scrutinising the reform proposal earlier this month, underlined the need for effective legal assistance through the provision of legal aid and the opportunity for the lawyer to pose questions.  It also recommended that the procureur should not oversee the garde à vue as she is not a judicial authority.  However, the current legislation has retained the procureur's role in supervising the conduct of the garde à vue.

The result is a reform that has had to be amended several times before being brought before Parliament.  It represents improvements in the due process protections of the suspect, but the speed with which the government has been obliged to act has caused many to criticise the project as insufficiently well thought out.  In particular, it fails to address the professional status of the procureur in the light of Medvedyev and Moulin and access to legal advice can still be delayed for a significant period in cases of drugs trafficking, organised crime and terrorism.  

Predictably, the police complain that the presence of lawyers will impede their enquiries and the search for the truth.  As with police officers across the globe, they assume an adversarial model in which lawyers will aggressively defend the interests of their client and advise silence in all cases.  We know that this is far from the case.  In England and Wales, free legal advice at police stations was introduced in the 1980s - the take up rate has never been more than around one third (recent studies suggest 36% of suspects receive advice, though 45% request it) and silence is exercised only rarely.  Research showed lawyers to be insufficiently adversarial, delegating custodial legal advice to unqualified, untrained and inexperienced staff.  (See M McConville & J Hodgson (1993) Custodial Legal Advice and the Right to Silence London:HMSO)

For their part, lawyers fear the reform does not go far enough.  Legal advice can be delayed by the procureurfor 12 hours in ordinary cases, 24 hours in suspected organised crime cases and 72 hours in suspected terrorism cases.  The police can also object to questions put by the lawyer.  They complain that lawyers will be present (legal aid allowing and funding is very poor in France) but not effective.  The continuing role of the procureur also appears in contravention of ECtHR caselaw unless their professional status changes significantly.  

And as the courts formally reconvene, the ceremonies in every region are dominated by the concern of procureurs who feel their authority is being undermined.  They are calling for reform of the procedure for their appointment, to make them independent of the executive in the same way as the trial judge and the juge d'instruction.

January 31, 2011

Jackie Hodgson's Blog!

Hi, I'm Jackie and I'm a professor in the School of Law at Warwick.  I'm interested in French criminal justice and this is my blog, where I will occasionally be commenting on and analysing current developments.

Coming soon....extending the suspect's right to a lawyer during police detention and interrogation and the importance of the European Convention on Human Rights.

For more information on my research and publications, visit my profile page

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