All 2 entries tagged Eu Criminal Justice

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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.

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'.

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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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