Legal advice at the investigative stage
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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. Study of procedural safeguards - completed December 2005

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Legal advice at the investigative stage

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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

  • Study of procedural safeguards- completed December 2005

  • 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 European Commission

Conclusions on legal advice

  • 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%€ 316.582

Sweden € 65.909.090 88%€ 58.000.000

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

  • Accounts of criminal justice systems often concentrate on trial processes

  • In all jurisdictions

    • 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

  • ‘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 –

  • Adversarial tradition

  • Inquisitorial tradition

  • ‘State socialist’ tradition

England and Wales

  • 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

  • A person arrested and detained by the police is entitled to advice from a solicitor in private at any time (PACE 1984 s58)

    • 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)


  • 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’

  • 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

  • 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


  • 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

  • In theory at any time……

However….. in practice

  • 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

  • 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

  • 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

  • Professional privilege is seen as a public interest


  • Secret investigative methods can be deployed against lawyers

  • Public prosecutor decides what is confidential information

Conclusions - 1

  • 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

    • 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

  • Fair trial concerns process and perception as well as outcome

  • The suspect – the elephant in the room!

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