Not the LCCSA Euro Conference

PUBLISHED September 25, 2013

At the end of May, I had the opportunity to attend a conference comparing the rights of the suspect in police detention across different EU jurisdictions. Delegates attended from numerous countries from as far afield as Latvia and Moldova. Speakers included some familiar names from UK academia such as Ed Cape and Jacqueline Hodgson.

The research project which formed the basis of the conference focused on four countries: France, the Netherlands, Scotland and England and Wales. Feedback from the research was hampered by a lack of data from the French part of the project. The authorities there had initially agreed to grant the researchers access to police stations but then revoked that permission. Following a change of heart, limited work was eventually undertaken in France. By choosing these contrasting jurisdictions, researchers were able to compare adversarial with inquisitorial systems of justice.

The trigger for this project has been Directive 2012/13/EU on the right to information in criminal proceedings which is due to be implemented on 2 June 2014. Article 7 of this directive is possibly the most interesting aspect as it deals with accessing the material of the case. Reference is made to disclosure of the case file ? an alien concept as far as this jurisdiction is concerned and one which will require a fundamental shift in police culture.

Surprising contrasts

I was astonished to learn that more than a third of lawyers attending a police station in France and the Netherlands do not practise criminal law and would not follow the case through to court. Many in France simply advised their clients to tell the truth and one Dutch lawyer did not know how long his client could remain in police detention without charge.

Both these countries restrict the amount of time that a lawyer can spend in consultation to just 30 minutes. There is also either a very limited or no right to intervene in an interview, this possibly reflecting their inquisitorial systems of justice. Lawyers in these jurisdictions tended to be passive in direct contrast to the proactive role played by ourselves. Perhaps, then, it was not so surprising that, on one occasion in France, the lawyer made no attempt to halt the interview even though the suspect had become suicidal.

Surprisingly, only 10% of interviews observed went entirely no comment. A prepared statement was provided in one in twenty interviews, somewhat fewer than I might have imagined. At least in England and Wales ? and also indeed in Scotland ? it was rare for the police to seek to undermine a suspect?s decision not to answer questions. The opposite was true in the Netherlands, where the police often sought to undermine a suspect?s silence.

There are some stark differences between Scotland and the practice south of the border. Upon arrival, only 50% of suspects are advised they are entitled to free legal advice as opposed to just being made aware they can have a lawyer. In 53% of cases, no interrogation at all takes place and very few lawyers actually attend the police station in Scotland, as, instead, advice is limited to a consultation on the telephone. When an interview does occur, little more than a third is audio-recorded due to a lack of officers trained to undertake taped interviews.

PCT threat

Inevitably the fixed fee system of payment and the continuing erosion of those fees are having a negative impact in England and Wales. Contact with clients becomes minimal and the average length of a consultation has fallen below 30 minutes. It was therefore refreshing to hear John Long, the Deputy Chief Constable of Avon and Somerset, who was in attendance to provide feedback, comment that, in his view, legal aid must be preserved and the proposed cuts in the guise of PCT are a threat.

Avon and Somerset had been chosen as the focus of the work in the UK and, during workshops arranged by the researchers, defence practitioners and police officers were invited to swap roles during role play. This highlighted the importance of disclosure and increased the level of trust between the two sides. One officer is reported to have said that he thought "lawyers coach clients to tell lies?!! It remains to be seen whether funding will be made available to provide joint training as all parties considered it to be beneficial.

As for Maastricht itself, the town was surprisingly small and provincial, given its significance in the context of the EU and recent politics. This being Holland though, everything was beautifully preserved and of course it rained. A lot.