Law in inaction

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You are sitting in a cell at the gendarmerie barracks. You are in garde a vue....detention.

You are sitting there because when the gendarme leapt out of his unmarked car to give you a speeding ticket you called him something uncomplimentary......and while this was something that the average British policeman would regard as mere vulgar abuse, the gendarme called it 'outrage'. An offence.
Given the sensitive nature of the forces of law and order in France they could probably interpret
'It's a fair cop, gov'
 as some involved insult to their probity so whatever you said you were on a hiding to nothing from the minute you opened your mouth.

You also bit the officer's bare arm when he countered your reluctance to accompany him to the station by placing your neck in a stranglehold so tight that you could not breath.
This attempt at survival was qualified as 'rebellion' - another offence - and while you cool your heels the gendarme is busy booking a couple of weeks off sick to recover from your attentions.

At last...the door opens and you are escorted to the adjutant's office.
He proposes to take your statement.
Not being familiar with French police and legal practice and given the misunderstandings that have already arisen, you ask for a lawyer.
The adjutant smiles.
'They're on strike.'

Witnessing you foaming at the mouth at this news, the arresting officer mentally adds rabies to the list of tests he will require.

Lawyers being on strike is a strange phenomenon, but, as you will have guessed, it involves money.
Most things about lawyers do.

In this case, the duty lawyers who are supposed to attend gendarmerie barracks and Hotels de Police at two hours notice in order to assist the involuntary guests of these establishments are on strike because they have not been paid  for the last two and a half months.
Not as in 'not paid by their clients' but as in 'not paid by the government' who are responsible for coughing up.

Mark you, as long as you keep your mouth shut until you get to court you might be better off without some of the lawyers you might encounter.

Recently one bright spark saw fit to defend two youths caught in possession of a miniscule amount of pot by advancing the argument that they were unable to remember anything about the circumstances in which the packet came into their possession as long use of pot had affected their memories.

I think even
'It's a fair cop, gov'
might have had more favourable results.

I had not long been in France when I read that lawyers were on strike and coming from a U.K. background it seemed incredible...after all, as a lawyer in independent practice, if you don't work you don't drink.

This was before I had grasped the astronomic sums required even by lawyers at the bottom of the food chain in France. They can afford to strike without reducing their intake of Romanee-Conti.
What one of the local hacks will want for a simple matter would enable you to hire a QC and two juniors with unlimited refreshers....and you're by no means sure he will do a good job.
They're not all Maitre Eolas.

Quite apart from his or her level of interest and competence there is always the local factor to take into account.....is anyone important involved?
If so, you will find that your lawyer's attention is more firmly fixed on not giving offence in that quarter than on any aspect of the case for his client.....the one that's paying him an arm and a leg.
A client is a client, but a local bigwig is forever.

They claim that their fees are so high because seventy per cent of it goes on keeping their business running...
Well, up to a point, Lord Copper.
In the provinces at least they all seem to inhabit seedy premises at the top of ancient buildings which don't have lifts.

One accident compensation specialist of my acquaintance regularly has clients with parts of their anatomy encased in plaster bumping up three flights of stairs on their backsides to reach his office. Both he and they take this for granted.

When my leg was in plaster my lawyer was most startled to be summoned downstairs to have our discussion in the cafe on the ground floor of the building...this had never happened to him before.
Given his unsatisfactory performance it's unlikely to happen to him again.

At the successful conclusion of another case, I was startled to receive telephone call from the lawyer who had handled it.
Bearing in mind that he had demanded money upfront before even starting the case I was even more startled to learn that he was reminding me of what a good job he had done and suggesting a further backhander.
My counter suggestion that he write to me with the details met with an aggrieved silence.
After all, in the conduct of his own affairs he follows the advice he gives his clients.
Sign nothing.

In East Anglia years ago there was an alternative version of the traditional crop rotation.
No longer 'wheat, barley, turnips and clover', but, given the wealth of the farmers concerned
'Barley, barley and a Mediterranean cruise.'
I can only imagine that something similar applies to French lawyers.......
'Boundary dispute, tax dispute and off to Thailand for a month on the proceeds.'

Still, when the lawyers are on strike, the cases reported have more savour and the one that sticks in my memory is the one I read about all that time ago when just arrived in France, in an unreconsctructed rural area.

It was a traffic offence. Drunken driving. A gentleman of a certain age.

Without benefit of representation the defendant rose to present his case to the President of the tribunal.
He utterly denied the offence.
What had happened was this.

He had come in from milking the cows and had had a glass of gnole (home distilled eau de vie at several times the proof of the commercial stuff).
As usual.
He had done a few other outside jobs and come in for breakfast, with a litre of (vin) rouge.
As usual.
He had done another few jobs and then met a friend in the bar to talk about selling some ducks. He had had a few beers.
As usual.
He's gone home for lunch, with another litre of rouge.
As usual.

Then something unusual happened. His son in law telephoned him to announce that his wife had given birth to their first child.
The defendant's first grandchild.
He had split a bottle of champagne with his wife to celebrate.
He had dropped in at the bar to celebrate with the boys. A few beers.
He had then driven to the hospital in the local town and split another bottle of champagne with the proud mother....how the baby was excluded from this remains a mystery...before driving home.

It was while driving the wrong way down a one way street that he had met the municipal police car coming up. It was all beginning to sound like Gerard Hoffnung's address to the Oxford Union in 1958.

The officers took it upon themselves to breathalyse him. He was multiple times over the limit.

How, asked the President, did he explain this?

Simple. As M. le President might imagine he was somewhat emotional at the birth of his first grandchild and when the police presented him with the tube he had taken breath several times while blowing into it.
Five times in fact and as M. le President would observe, if he divided the results presented by the police by five he, M. le President ,would note that the answer arrived at was just under the limit.

Therefore he was not guilty.

He was awarded points off his licence and a recommendation to let his wife drive him to the hospital for the birth of the next grandchild, and, knowing that particular court, I expect he just nipped round to the back office and handed over the folding stuff to have the judgement expunged from the computer records..

Cast not a clout till May be out...except in Deux Sevres

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Deux Sevres is not, as you might think, a description of two finely decorated porcelain plates.
It is a department of France, one of the four which make up the region of Poitou Charente.


As Michael Caine might say .......Not many people know that.

This used to include the French Tourist Board.

Apart from its geographical position, Deux Sevres can also lay claim to a cultural position....that of being firmly in what is described as 'la France profonde'.
Which means an area where if something has not been done before it certainly won't be starting to be done now.

A further explanation.

I know that the saying about casting clouts refers to not being deceived by the advent of spring into discarding your winter woollies too early and getting frostbite in areas best not to contemplate, but clout has another meaning.....
It is also a blow, as in 'gave him a clout' and just at the moment, people in Deux Sevres have the exciting possibility of giving other people in Deux Sevres - excluding maires, gendarmes and other protected species - a clout and getting away with it.....but only up to the end of May.

Whence this sudden immunity...and why only in Deux Sevres?

Under much external and internal pressure, France has finally decided to conform the to European Convention on  Human Rights in respect of the right to a fair trial.
Legislation has been passed, and is due to come into effect on June 1st, to the effect that persons hauled in by the forces of order in pursuance of their investigations will have the right to have a lawyer present during the whole of the proceedings, instead of just for thirty minutes of it, as at present.

This is going to give problems to the producers of the police serial 'Engrenages'  (or 'Spiral', as it is known on English language television)  where the brutality of interrogations forms an integral part of the action...but that's their worry.

Now, in a sudden rush of blood to the head, the Cour de cassation...one of the four Supreme Courts of the French justice system....has announced that as far as it is concerned, from the date of its judgement on Friday April 15th, any verdict in a case where a lawyer was not present for the whole process of interrogation will be annulled on procedural grounds, as being in breach of the Human Rights Convention, which states that all signatory countries must be in compliance, even if their own laws are in breach.

Panic in the dovecotes.
Fancy announcing that just before a weekend! And with the Easter holidays coming up!

The police and gendarmerie are gearing up....setting up information centres to acquaint themselves with the novel idea of having an observer of their traditional practices....
The Parquet (prosecutors' department) is gearing up....wondering what the hell to do about the cases currently in the sausage machine where the accused certainly did not have a lawyer present throughout his interrogation.....
And the avocats (trial lawyers) are gearing up....arranging for more of them to be on call, while wondering  whether they will be paid for this service since the law providing for their payment is not yet in force.

The reaction of the avocats in Deux Sevres?
Their batonnier (shop steward) is outraged.

The Cour de cassation has no power to make law.
Quite right, Maitre...but it hasn't. It has just said what it will do in cases where there is a breach of the Convention on Human Rights.

And it's Saturday!
Well spotted, Maitre!

And I can't do anything until I consult my colleagues.
Which would have been on Monday except that they will be on strike on Monday.
Tuesday, then, Maitre?

And in any case, we're not ready. We will not be stampeded and will not be implementing these changes until June 1st, when the law comes into force.
La France profonde has spoken. Law south of the Loire.

So this is the unprecedented opportunity for the inhabitants of Deux Sevres to run riot until midnight on May 31st.
Sure in the knowledge that no lawyer will be accompanying them for the entire duration of an interrogation they can do as they please.
Clout whom they like.

They might well be convicted at first instance in Deux Sevres...but not to worry.
All they have to do is to go to the regional Court of Appeal in Poitiers and their conviction will be overturned for non observance of procedure.

So if you're living in Deux Sevres....lock up your daughters and make way for the Lord of Misrule!
Until midnight on May 31st.

When constabulary duty's to be done.....

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The popular press has finally caught on to something that has been causing ructions among defence lawyers for some time, because the treatment of a fourteen year old girl involved in a fight at the school gates is much easier to present to the public than legal argument about the European Convention on Human Rights taking precedence over internal French law.

As Gilbert and Sullivan inform us, a policeman's lot is not a happy one, and the police - openly, because they can  and do have unions - and the gendarmerie - behind closed doors because they are the army and can't have unions - are letting everyone know about it.

Why are they unhappy? Because they feel they are bearing the brunt of criticism that should, in their view, be levelled at the politicans.

The issue? The 'garde a vue'. Police custody to you and me.

Coming from the U.K., one imagines that a suspect, taken up by the police dragnet and hauled off to the cop shop for questioning, has the right to have a lawyer present from the start of things to prevent him from saying anything silly, like
'It's a fair cop, guv'
as they did in the dear old days of Dixon of Dock Green.
Personally I always thought that there was a fair bit of physical persuasion behind some of those admissions in that golden age of respect for the police, but that's by the by.

But this is France.
While the suspect has the right to let his family know where he is, and to be seen by a doctor, his lawyer can only tell him of what exactly he is accused. The lawyer cannot see his dossier and has no way of helping him to construct a defense until he gets out.
As a supect in France, in police custody, one is very very much alone against the system, and it is this which is expressly disapproved of by the judgements of the European Court of Human Rights.

Defence lawyers have been kicking up for some time, complaining that the rights of suspects under the European Convention of Human Rights are not respected due to the very nature of internal French law, and a few courts are now beginning to side with them.

A lucid account of what is involved may be found in journal d'un avocat, among a plethora of other delights, including rugby, tea, and sensible advice.

Now, the case of the fourteen year old girl. She had been involved in a fight at the school gates. The next morning, she is awakened at her home by a call from the gendarmerie. A female officer gets her up and tells her she is to go to the cop shop to be questioned. She is wearing a jogging suit that she uses as pyjamas, and is refused permission to get dressed properly, only being allowed to put on a pullover. She is handcuffed and taken to the station.
It appears that it is normal practice to handcuff all suspects...exception only being made when there is a possibility that the handcuffs would slip over the hands of the younger suspects.

I have no idea of the nature of her involvement, but I do suspect that heightened attention was being paid to school gate fights after a teenager was stabbed to death in one just before this incident.
It also appears that when the current Justice minister was Minister of the Interior, there was pressure to push up the number of suspects held in police custody rather than just being interviewed at the police station - probably so that in the coming elections, the ruling UMP party could whip up support for their hard line on crime.

Before one gets all het up, it might be sobering to reflect on what might happen to the average person who receives a summons to the cop shop for what is always referred to as 'something which involves you'.
I had one of these years ago...and when I took no notice, the gendarmerie came to the house. I watched them from the attic window.
Eventually, they rang me and 'invited' me to come to see them. I asked what it was about and they replied that it was 'something which involved me'.
I declined to come and they said they would come and get me. I watched them from the attic window.
They rang again and eventually the voice at the other end of the line said it was about damage to a car in a supermarket car park. Had I been there on such and such a date?
Probably.
Well, there's a guy who made a statement that you bashed into his car while reversing and didn't stop to fill out an insurance form.
The guy can go and boil his head.
No, you have to fill out the form.
Why?
Because you have to. It's the law.
It's the law if you have an accident. I haven't had an accident.
He says you did.
He can go and boil his head.
But he's made a statement. There'll be trouble if you don't come in. It's only a form for goodness' sake...the insurance companies can sort it out...

Like a fool, I did go in, I did fill out a form and copped a mighty increase in my car insurance for something I hadn't done. That, as they might say, learned me. Never co operate.

It appears that the unwary, summoned to discuss 'something which involves them' can find themselves taken to a cell, have glasses, belts, shoelaces etc., removed to prevent them from committing suicide while in police custody, can be strip searched, including body cavities, and all this at the whim  - no, sorry, on the considered opinion - of a properly qualified police or gendarmerie officer. Having no idea what the police want to see him about, he has had no opportunity to discuss the question with a lawyer before arriving at the police station. where he could be held for twenty four hours, and then for another twenty four on the say so of the local procureur - the Justice Ministry's man supervising the local police.

One British chap round here found himself in chokey when, having been breathalysed - he was negative - he said 'F....ing French' as he got back in his car. Twenty four hours on the whim - no, sorry, the considered opinion - of a properly qualified gendarmerie officer.

Lawyers are kicking up on behalf of their clients.

Ther police and gendarmerie are kicking up on their own behalf because they resent being the fall guys for their political masters. If official circulars and unofficial pressure from their bosses compell them to take people into custody rather than simply interviewing them, that is what they do.

One bright spark of a policeman has come up with a real winner of an idea.
As the officers who decide on and control  the 'garde a vue' have to go on a course and hold a certificate, he proposes to turn in his certificate, so that he can no longer do that part of the job. He reckons that if all the certified officers were to do this, the justice system would fall apart in very short order and compel the politicians to stop playing games.