Legal advice at the police station – French and Scottish style

It used to be common in England to suggest that criminal justice was better in France or in Scotland. Well, each is another country, and they do things differently there. I’ve absolutely no doubt some of their laws are better. But as far as rights at the police station are concerned, they’re struggling to keep up.

In Scotland, they’re waiting for the Supreme Court’s judgment next Tuesday in Cadder v H.M. Advocate on whether the questioning of a suspect without access to a lawyer is in breach of the right to a fair trial, Scottish legislation astonishingly allowing access to a lawyer only after the police have had six hours to interrogate you first. The answer seems fairly obvious, given European Court of Human Rights rulings on the point in cases like Salduz v Turkey, and Lord Advocate Elish Angiolini has anticipated it by issuing interim guidelines in the meantime. These still don’t match English standards, though – in particular they don’t set a clear enough test for exceptionally delaying access to a lawyer or interviewing a suspect without one – and Justice isn’t satisfied with them. In the meantime, the prospect of the Cadder judgment is causing some concern in Scotland.

It’s reform time in France too, where suspects’ right to consult a lawyer are amazingly constrained, from an English perspective: once taken into custody for questioning (garde à vue), you’re only allowed a 30 minute interview with a lawyer, who is not permitted to be present while you’re interviewed. Under a new reference procedure the Conseil Constitutionnel decided in July that this breaches the constitution, but deferred the effect of its ruling to allow the legislature until next July to amend the Code of Criminal Procedure. Then France lost in the European Court of Human Rights earlier this month in Brusco v France (only available in French, I’m afraid), partly because of the absence of a lawyer during questioning. This week the Cour de Cassation followed up with a ruling that access to a lawyer cannot be delayed merely because of the category of offence a suspect is arrested for, as the current rules allow. Here’s Le Monde‘s news story about that ruling.

So the justice minister Michèle Alliot-Marie has tabled draft legislation that would give a right to be accompanied by a lawyer when questioned. That’s a major breakthrough, but the reform allows access to a lawyer to be delayed for up to 12 hours by written authorisation of a prosecutor for the purpose of permitting (my translation)

the smooth conduct of urgent inquiries with a view to collecting or preserving evidence

which doesn’t strike me as a very high test.

Worse, while creating rights with one hand, the proposal takes them away on the other by allowing the police to question a suspect outside the police station in what’s called an audition libre. The idea is that in future, instead of arresting suspects and taking them into custody for questioning (with the new, irritating right to have a lawyer there) the police will normally ask suspects to consent to be interviewed – perhaps on the spot upon arrest, or at home, or even perhaps at a police station – without any right to legal assistance at all, and without limit of time. Yes, you’ll be able to stop questioning at any moment. But then you’ll be detained. It’s a system aimed at pressurising suspects into giving up their Convention rights, and in my view probably breaches the right to a fair hearing. No wonder Le Monde calls the proposals an “optical illusion” of reform.

To ministers in Edinburgh and Paris, I commend the Police and Criminal Evidence Act 1984, and Code C issued under it. Some things the English and Welsh do better. Which is why it was especially depressing to hear the new justice minister Jonathan Djanogly, interviewed by Joshua Rozenberg on Law in Action this summer, say in the context of reforming criminal legal aid that he does not think the personal presence of a solicitor is always needed at a police station, and that a telephone interview may sometimes suffice. (You can still listen to the programme – he talks about this at about 20’35”).

Maybe, in a few cases. I worry though that his comment reflects a backsliding attitude on fundamental, practical rights. As Scotland and France move reluctantly forwards, England and Wales should not go willingly back.