Academic journal article Contemporary Readings in Law and Social Justice

The Role of Lawyers during Police Detention and Questioning: A Comparative Study

Academic journal article Contemporary Readings in Law and Social Justice

The Role of Lawyers during Police Detention and Questioning: A Comparative Study

Article excerpt

1. Introduction

Drawing on a recent empirical study, this article discusses the role of the criminal defence lawyer across four European jurisdictions: England and Wales, France, the Netherlands, and Scotland.1 It examines the daily practices of police officers and lawyers, and identifies features of legal procedure, occupational cultures and resource constraints that underpin different behaviour.2 In this way, the effectiveness of legal assistance provided to suspects detained and questioned in police custody can be evaluated and practical recommendations for improvement can be made.3

2. The European Legal Context

The landmark European Court of Human Rights (ECtHR) case of Salduz v Turkey guaranteed in the strongest terms the suspect's right to custodial legal advice before and during police interrogation.4

...the Court finds that in order for the right to a fair trial to remain sufficiently "practical and effective"...Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police...The rights of the defense will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

Many countries have reformed their criminal procedure in order to comply with the Salduz decision, but significant differences remain in the statutory provision made enabling suspects to receive legal assistance whilst in police custody. For example, England and Wales, France and Scotland all provide a legal right for the lawyer to be present during the interrogation of the suspect, but the Netherlands does not, save in the case of juveniles and serious crime.5 France and the Netherlands restrict the lawyer-client consultation prior to interrogation to 30 minutes, but in Scotland and England and Wales there is no time restriction. There are also differences in the amount of information from the case file that suspects and lawyers are provided with, and the extent to which lawyers may intervene during the police interrogation of the suspect.

Building on Salduz and subsequent ECtHR decisions, the recent European Union (EU) Dir ect ive on legal assistance sets out in mor e deta il what is required in order that suspects have access to a lawyer "in such time and in such a manner so as to allow the persons concerned to exercise their rights of defense practically and effectively."6 As well as suspects meeting in private with their lawyer, this includes "the right for their lawyer to be present and participate effectively when questioned."7 The nature of this participation is a matter for national law, which potentially undermines the aims of harmonization, but Member States are not free to do what they please: any national provisions must not prejudice the effective exercise and essence of the right.8 Together with the right of access to the materials of the case provided for in Article 7 of the EU Directive on the right to information in criminal proceedings, 9 this new Dir ective pla ces clear requirements upon Member States which in many instances will necessitate additional measures at the national level, harmonizing further the procedural safeguards in place for suspects in criminal cases.

3. The Provisions for Custodial Legal Advice in the Four Jurisdictions

Whilst suspects had access to legal assistance in police detention in all four jurisdictions in our study, the legal provisions differed considerably. This is perhaps unsurprising - procedural traditions differ, as do the role and functions of criminal justice personnel. Systems with a tradition of judicial or prosecutorial supervision of the investigative phase, for example, typically have had weaker defence rights and the changes required by decisions such as Salduz, and now the EU Directive, are greater in France and the Netherlands than in England and Wales. However, in addition to changes in statutory criminal procedure, it is also important to go beyond the law and to look at the context of daily practice in order to understand the factors that determine whether suspects' rights can be made practical and effective. …

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