Transcript Legal advice at the investigative stage

Legal advice at the
investigative stage
The importance of context and culture
Professor Taru Spronken, University of Maastricht,
Netherlands
Professor Ed Cape, University of the West of England,
Bristol, UK
Two projects
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Study of procedural safeguards
- completed December 2005
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Legal protection at the investigative
stage
- 2004 - 2006
Study of Procedural
Safeguards
Procedural Rights in Criminal Proceedings:
Existing Level of Safeguards in the
European Union
Taru Spronken and Marelle Attinger
Faculty of Law, Department of Criminal Law and Criminology
University of Maastricht
12 December 2005
Directorat General Justice Freedom and Security
http://arno.unimaas.nl/show.cgi?fid=3891
European Commission
Conclusions on legal advice
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Moment of access legal advice
Legal advice before answering
questions in relation to charge
Presence during police interrogation
Access to legal aid
Remuneration of counsel
Budgets for criminal legal aid
Legal aid
Total budget
%
Criminal legal aid
Poland
€ 17.205.595
1,84%
€
Sweden
€ 65.909.090
88%
€ 58.000.000
316.582
E&W
€ 2.343.310.032
6,07%
€ 142.238.919
France
€ 4.887.212.121
1,65%
€ 80.639.000
Netherlands
€ 83.526.000
The legal protection of persons
suspected of crime at the
investigative stage in the EU
Ed Cape, Jackie Hodgson, Ties Prakken and
Taru Spronken
EU AGIS funded project
The importance of the
investigative stage
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Accounts of criminal justice systems often
concentrate on trial processes
In all jurisdictions
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information and evidence obtained at the investigative
stage is used in the trial stage
many more people are subjected to investigative
processes than the number who ultimately face trial
There is a de facto continuum from investigation to
trial
A fair and just trial system requires a fair and just
investigative stage
The right to legal advice
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‘Everyone charged with a criminal offence’
has the right to defend him/herself through
legal assistance (ECHR art 6(3))
The right to legal advice applies at the
investigative stage where ‘the attitude of an
accused… [is] decisive… in any subsequent
criminal proceedings’. Murray v UK 1996
The Havana Declaration
States must ‘ensure that all persons are
immediately informed by the competent
authority of their right to be assisted by a
lawyer of their own choice upon arrest or
detention or when charged with a criminal
offence’.
Basic Principles on the Role of Lawyers principle 5, adopted
by 8th UN Congress on the Prevention of Crime etc., Havana,
7 September 1990
Draft Framework Decision on
Minimum Procedural Rights
A suspected person has the right to legal
advice as soon as possible and throughout
the criminal proceedings if s/he wishes to
receive it, and this right should include legal
advice before answering questions in
relation to the charge (art 2).
The cost of legal advice is to be borne by the
state where it would otherwise cause undue
financial hardship.
The role of defence lawyers at
the investigative stage
In theory, the role of defence lawyers
differs depending upon the way in
which the legal system is conceived –
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Adversarial tradition
Inquisitorial tradition
‘State socialist’ tradition
England and Wales
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In theory, the suspect is a party to the
proceedings
The suspect should be entitled to legal
advice at any time – equality of arms
The lawyer should advise and assist
their client in their best - adversarial interests
The right to legal advice
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A person arrested and detained by the police is
entitled to advice from a solicitor in private at any
time (PACE 1984 s58)
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there are limited exceptions to this right, but they are
rarely applied
it includes legal advice during police interrogation
On detaining an arrested person, the police must
inform them of their right to legal advice, and help
secure it (PACE Code C)
Legal advice is normally provided free (paid for by
the state)
The role of the defence lawyer
‘The solicitor’s only role in the police station
is to protect and advance the legal rights of
their client… The solicitor may intervene to
seek clarification, challenge an improper
question… or the manner in which it is put,
advise their client not to reply to particular
questions, or if they wish to give their client
further legal advice’ (Code C Note for
Guidance 6D)
However…….
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The police have extensive ‘inquisitorial’ powers to
gather evidence – interrogation, fingerprints,
photographs, samples, searches, drug-tests, and
covert methods
In principle, all evidence obtained is admissible at
trial
The police are under no obligation to disclose
evidence at the investigative stage
The police/prosecutors are under no obligation to
take into account representations regarding charge,
bail, etc.
At trial, inferences may be drawn from ‘silence’ of
the suspect in the police interview
Inferences from ‘silence’
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Adverse inferences may be drawn at
trial if defendant failed to tell the police
what their defence is – if it was
reasonable to expect them to do so
Legal advice to remain silent does not
necessarily prevent adverse
inferences
‘Sidelining’ defence lawyers
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The right to legal advice at the investigative
stage is ‘guaranteed’ by law
However, the value of legal advice is limited
by –
Extensive police investigative powers
No disclosure obligation
Permitting adverse inferences even where
‘silence’ is on legal advice
Netherlands
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Investigation into the actual truth by
police and prosecutor
Use of pretrial statements as evidence
at trial
Right to legal advice subordinate to
interests of the investigation
The right to legal advice
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In theory at any time……
However….. in practice
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Not before first police interview
Not during police interview
Free legal aid after 6-15 hours of
police custody
Right to silence?!
Role of defence lawyer
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Only role is to protect and advance
legal rights of clients, even if this is
detrimental to third parties or the
prosecution
However… in the interest of
the investigation
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Limited powers of defence lawyer in
investigative stage
Restrictions on contacts with outside
world
Restrictions on contacts with lawyer
Restrictions on access to case file
Professional privilege under
pressure
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Professional privilege is seen as a
public interest
However….
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Secret investigative methods can be
deployed against lawyers
Public prosecutor decides what is
confidential information
Conclusions - 1
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A fair and just trial process is dependent
upon a fair and just investigative stage
The right to legal advice throughout the
proceedings is a pre-requisite
Its effectiveness depends upon
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respective roles, and powers, in the process –
police, prosecutors, judges, defence lawyers
substantive evidential and procedural rules
quality assurance mechanisms, especially
defence lawyers
enforceability
Conclusions - 2
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Fair trial concerns process and
perception as well as outcome
The suspect – the elephant in the
room!