Custodial Legal Assistance and Notification of the Right to Silence in France: Legal Cosmopolitanism and Local Resistance

The right of silence, socio-legal research and law reform politics (and Brexit)

“…Although the right of silence was chronologically one of the first procedural protections targeted by reformers advocating a ‘rebalancing’ agenda, one should not confuse early symptoms with underlying causes (as though a slogan on a red bus caused Brexit). So far as international copycats are concerned, Quirk is right to stress the significance of ‘the transfer of criminal evidence provisions’ (p. 160) as a relatively neglected dimension of comparative studies of legal ‘transplants’, ‘transfers’ and ‘diffusion’, though there is already more literature on this rich and intriguing topic than Quirk surmises or cites (see for example Allen, 2015; Blum, 2008; Capowski, 2012; Damaška, 1997; Giannoulopoulos, 2013; Grande, 2016; Hodgson, 2011; Li and Wang, 2014; Weisselberg, 2017). My best guess, for what it is worth, is that policymakers and law reformers often cherry-pick comparative examples to retrofit their existing policy agendas, and so much the better if English law can be co-opted rhetorically as an ally in rationalisations of local legislative objectives.…”

Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries

“…47 C. Before Salduz in France, Scotland, Belgium, the Netherlands and Ireland Resistance to recognition of the right to custodial legal assistance in France is a welldocumented fact. 48 I have sketched elsewhere how systemic opposition to providing suspects with access to legal advice has spanned the French legal landscape for the last 20 years at least, 49 and have pinpointed important similarities with historic resistance to the right to legal advice in Scotland. 50 Here it suffices to note that despite the many attempts at legislative reform, 51 suspects in France were until the enactment of the Law of 14 April 2011 not entitled to have a lawyer present when questioned by the police.…”

Paradigms of forensic science and legal process: a critical diagnosis

“…The European Court of Human Rights has repeatedly said that elements of adversarial procedure are necessarily implied by the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights (which has 47 states parties, comprising about a quarter of all the world's countries). 24 EU criminal law, too, propounds procedural protections for suspects and the accused, predicated on more proactive models of criminal defence characteristic of adversarial jurisdictions [68,69]. The pragmatic realities of constitutional politics and contemporary international relations thus presuppose that criminal procedure must be substantially adversarial.…”