All entries for November 2011

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.


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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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