France: New regulations introduced for the conduct of police investigations
On 27 May 2014, France passed Law No. 2014-535 (the “New Law”), which transposed into French law European Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings. Most of the New Law’s provisions entered into force on 2 June 2014.
The New Law’s main innovation consists of the creation of a new status of “person under suspicion” in the context of police investigations. A person who is suspected of having committed a criminal offence can now be questioned without being placed in police custody (“garde à vue”), after having been informed, inter alia, of the nature, time and place of the offence which they are suspected of having committed and of their right:
- to leave the interview at any time,
- to be assisted by an interpreter, and
- if the suspected offence is a crime or an offence punishable by a prison sentence, to have a lawyer present during the interview.
The right to information is therefore no longer dependent on being deprived of liberty.
The right of persons in police custody to information is also extended, in order to ensure a better understanding of the nature, date and place of the alleged offence and the reasons why the person was taken into custody. Among others things, the New Law also provides for the right of a person in custody to access certain elements of their file, such as the records of their interview(s). However, the rights granted by the New Law fall short of the full access provided for in the Directive.
It should also be noted that the New Law has modified the provisions relating to the extension of the time suspects may be held in police custody beyond 24 hours in certain circumstances. Such extensions are now no longer possible in cases of organised fraud (“escroquerie en bande organisée”) and the laundering of the proceeds of that offence, except in certain limited circumstances, such as in cases where some of the acts constituting the offence took place outside of France’s territory.
UK: Plans to strengthen fight against organised crime target "participating professionals"
Plans were announced in the Queen’s Speech on 4 June 2014 for new powers to tackle serious and organised crime, including the introduction of a new offence aimed at solicitors, accountants and others who assist criminals to carry out their illegal activities. The Serious Crime Bill, which the Home Office plans to introduce as soon as parliamentary time allows, includes a new offence of "participation in an organised crime group" which will carry a maximum sentence of five years in prison. It is aimed catching and punishing the white-collar associates of those involved in organised crime in the UK, from lawyers and accountants who draft enabling documentation to those who hire vans to drug smugglers. Turning a blind eye or the lack of knowledge of specific criminal offences will no longer be a sufficient defence.
The draft legislation will have to be scrutinised once it is published for details on how the offence would be proven and the extent of the knowledge that would have to be demonstrated before a professional could be accused of having reasonable cause to suspect wrongdoing. Concerns have already been raised that the proposed measures may lead to the erosion of legal privilege, with prosecutors requiring disclosure of lawyer-client communications with a view to implicating both parties. Currently privilege is not available to protect communications made in the furtherance of a crime (the crime-fraud exception). It is also possible that the government may create a statutory exception to remove privilege from communications made in circumstances where lawyers had reasonable cause to suspect that they were assisting a crime. David Green, director of the SFO, has emphasised on a number of occasions that companies self-reporting criminal wrong-doing will be expected to make full disclosure of documents relating to any illegal activity, and that that may include waiving the right to legal privilege.
The new law will also contain measures aimed at improving the recovery of the proceeds of crime from convicted criminals, giving authorities more powers to seize criminal assets. There has been much criticism recently of the failure of criminals to comply with confiscation orders, with £1.5bn currently outstanding. According to the Public Accounts Committee, only 26p in every £100 of criminal proceeds was recovered by authorities in 2013. Sentences for criminals who fail to make repayments will be increased, to up to 14 years for those ordered to repay more than £1 million who refuse to do so. Currently it appears that many criminals would rather spend extra time in prison than repay the proceeds of their crimes.
To track the progress of the bill, see the dedicated Parliamentary page, here.