All entries for Thursday 03 February 2011

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.

February 2011

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  • Great article! Perhaps the defence lawyer would always be a bad guy depending on what angle he is be… by Laura-stella Enonchong on this entry
  • What great blog – I have tweeted and face booked links to this article and I know my team have asked… by Peter Dunn on this entry

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