Jacqueline Hodgson

The Detention and Interrogation of Suspects in Police Custody in France A Comparative Account

Drawing upon my own empirical research, this article examines the regulation of the detention and interrogation of suspects held in police custody in France - the ways in which the rights and interests of the suspect are protected and the reliability of evidence guaranteed. After considering the legal framework and the impact of the European Convention on Human Rights, the article describes the actual practices and roles of key legal personnel and the relationships between them; the nature of judicial supervision; the role of the defence; and the conduct of police interrogations. The article concludes that neither judicial supervision by the public prosecutor as actually exercised nor the recently expanded rights of the defence provide sufficient guarantees to safeguard either the interests of the suspect or the reliability of evidence. Although the outcome of the investigation is reviewed, the process is not. Despite the centrality of confession evidence in practice and the obvious vulnerability of those detained, the police detention of suspects continues to be regarded in procedural terms as a preliminary (and, therefore, less important) investigation, with the result that the suspect is afforded fewer safeguards when interrogated by the police than when questioned by a judge.

Constructing the Pre-Trial Role of the Defence in French Criminal Procedure: An Adversarial Outsider in an Inquisitorial Process?

This article outlines the construction of the role of the defence lawyer in French pre-trial criminal procedure and the factors which have both influenced and constrained its recent evolution. Beginning with an examination of the changing ways in which the pre-trial defence role is characterised by the text of the law and the official discourse surrounding it, the article then provides an empirically based account of the ways in which the defence avocat is perceived and accommodated by the key legal actors, namely the police and the judicial officers charged with the supervision of criminal investigations. A careful unpicking of the nature of their resistance to any effective defence role reveals fundamental weaknesses in the functioning of the current inquisitorial structure and, paradoxically, suggests that there is more rather than less room for the defence to play a role within French pre-trial criminal procedure.

Adding injury to injustice : the suspect at the police station

Given the malpractice revealed on the part of police, prosecution lawyers, and their experts, and the failure of the criminal process and those working within it to protect accused persons from wrongful conviction in these cases, the inclusion of the right to silence in the Royal Commissions terms of reference was surprising. But even in this initial announcement there was a hint of what was to come. The Home Secretary sought to minimize the significance of these cases and the structural flaws which they revealed:

Understanding the Sentencing Process in France

French sentencing is characterized by broad judicial discretion and an ethos of individualized justice focused on rehabilitation. The aims are to prevent recidivism, and so protect the interests of society, while reintegrating the offender. By contrast, the political Right, characterized by the recent Sarkozy regime, favors deterrence through harsher penalties, minimum prison sentences, increased incarceration, and preventive detention of offenders considered dangerous. The sentencing process can be understood only within the broader context of inquisitorially rooted criminal procedure. The central part played by the prosecutor (including in case disposition through alternative sanctions) and her role in recommending sentences that the court almost invariably endorses, together with the unitary nature of the judicial profession, means that there is remarkable consistency in penalties imposed. The contrainte pénale, based on a reconsideration of the range of available penalties put forward by the Consensus Commission and legislated in 2014, is unlikely to have great impact without investment in the probation service and a change in the judicial culture that still favors simple sentencing options, including imprisonment, compared with alternatives now in place.

Making custodial legal advice more effective in France

In Salduz v Turkey (27 November 2008, No. 36391/02), the Grand Chamber of the European Court of Human Rights (ECtHR) stated: ...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, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right…The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

How the timing of police evidence disclosure impacts custodial legal advice

Presently, the police in England and Wales disclose their evidence at different points during the arrest and detention of a suspect. While the courts have not objected to this, past field research suggests that lawyers can only advise their clients accurately when the police disclose their evidence before the police interview. To examine this from a law/psychology perspective, we recruited 100 criminal defence lawyers to participate in an online study. Lawyers read fictional scenarios and provided custodial legal advice to a hypothetical client (Christopher) when given either pre-interview disclosure or disclosure at various points during the police interview (early, gradually or late). Lawyers given pre-interview disclosure provided considerably more informed legal advice compared to those who were only provided with disclosure during the hypothetical police interview. Using an interdisciplinary approach, this article provides further evidence that pre-interview disclosure is essential for lawyers to deliver case-specific legal advice to suspects.

Truth-tellers stand the test of time and contradict evidence less than liars, even months after a crime

When deceptive suspects are unaware of the evidence the police hold against them, they contradict that evidence more than truthful suspects do—a useful cue to deception. But given that, over time, truthful suspects might forget the past and also contradict the evidence, how effective are lie detection techniques that rely on such inconsistencies when suspects are questioned months after a crime? In Experiment 1, people committed a theft (liars) or a benign activity (truth-tellers) in a university bookshop. Shortly after or 2 months later, we questioned them about their bookshop visit without informing them of the evidence implicating them in the theft. Though truth-tellers contradicted some evidence after both time delays, liars always contradicted the evidence more than did truth-tellers. In Experiment 2, we presented the mock suspects’ responses to an independent group of laypeople and asked them to rate how deceptive the suspects were. Laypeople rated liars as more deceptive than truth-tellers after both time delays, but also rated truth-tellers questioned 2 months after the crime as more deceptive than truth-tellers questioned shortly after the crime. These findings suggest that liars’ tendency to distance themselves from a crime might outweigh any memory decay that truth-tellers experience in the 2 months following a crime. As a result, the extent of a suspect’s contradictions with the evidence could still be diagnostic of deception even after an extended time delay.

From the domestic to the European: an empirical approach to comparative custodial legal advice

Comparative criminal justice has much to teach us, not only in our relative understanding of the criminal procedures of national jurisdictions, but also in the critical analysis of wider European norms of the European Convention on Human Rights (ECHR) and most recently, the European Union (EU). Drawing on the findings of an empirical and comparative study of the suspect’s right to legal counsel, together with earlier empirical research, this chapter analyses the scope and effectiveness of the standards set by the European Court of Human Rights (ECtHR) in its interpretation of the ECHR and the recent EU provisions setting out procedural safeguards for suspects detained and interrogated in EU countries.

The Right to Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice

Recent EU Directives provide for a range of procedural protections for suspects and accused persons, going beyond the more broadly articulated standards set out in the European Convention of Human Rights. These reforms are to be welcomed, but their implementation poses a range of challenges for Member States. Drawing on recent empirical research, this article focuses on one measure, the right to legal assistance during police custody. It discusses the range of complex and often inter-related factors that operate to help or to hinder the process of ensuring that the right is ‘practical and effective’ and not merely ‘theoretical and illusory’. Member States do not share a common procedural tradition and alongside ensuring sufficient financial and human resources, effective implementation will require shifts in the legal and occupational cultures of police, prosecutors and the criminal bar.

‘Plea Bargaining: A Comparative Analysis’

Plea bargaining is a well-established phenomenon in the United States, such that it is regarded even by the Supreme Court as part of ordinary criminal justice practice, to which Constitutional rights should attach. Various forms of plea and sentence negotiation procedures also exist across Europe and the desire to minimize the number of fully contested trials appears to be a universal criminal justice objective. This article explores the types of bargaining in place in a range of jurisdictions. It focuses in particular on the implications of party-controlled negotiations within more inquisitorial procedures, which are generally characterized by a proactive and truth-seeking judicial function.