Police custody and lawyer: what to do if the judicial police officer cannot reach the president of the Bar?

Imagine: you own a flat in Lodève, and your tenant is arrested for an offence. Placed in police custody, he asks for a lawyer. The judicial police officer tries to contact the president of the Bar, but the switchboard is busy. Should you wait? Can you interview him anyway? This question, which seems technical, directly affects your rights and those of your loved ones.

The decision of 28 April 2004 of the Court of Cassation provides a clear answer: the judicial police officer who shows that he contacted, by any means, even if unsuccessfully, the president of the Bar as soon as the request for an interview with a duty solicitor was made, satisfies the requirements of Article 63-4 of the Code of Criminal Procedure (which governs the rights of the person in police custody). In other words, there is no need to wait for the president of the Bar to call back before starting the interview.

But what exactly does this change for you, as a landlord, tenant or property professional? This decision secures criminal proceedings, avoids nullities that could benefit bad-faith individuals, and ensures that investigations proceed without abusive blockages. Let's delve into the details.

The facts: a story like any other

On 7 December 2003, at around 9:30 am, Mr X, a resident of Béziers, was arrested in the Carrefour car park in Annecy (Haute-Savoie) for shoplifting. Immediately placed in police custody, he was taken to the police station. At 10:00 am, the judicial police officer verbally notified him of his rights, including the right to consult with a lawyer. Mr X requested a duty solicitor. The judicial police officer then contacted the president of the Bar of Annecy, but to no avail: the switchboard was busy, no one answered. He left a message and noted the time of the attempt.

At 2:30 pm, after drafting the written notification of rights (as required by procedure), the judicial police officer tried again to reach the president of the Bar. This time, he succeeded: Me Catherine Chemin, then Me Clémence Creste, were appointed. The lawyer arrived at the police station and Mr X was able to speak with her from 2:30 pm to 3:00 pm. The interview then began.

But Mr X challenged the procedure: according to him, the judicial police officer should have postponed the interview until the lawyer was actually reachable. He alleged a violation of Article 63-4 of the Code of Criminal Procedure (which guarantees the right to a lawyer from the start of police custody). The case went up to the Court of Cassation, criminal division, which had to decide: did the judicial police officer act correctly?

This type of situation is common: presidents of the Bar or their delegates (lawyers responsible for appointing a colleague) are sometimes unreachable, especially in the early afternoon or at the end of the week. In Lodève as in Béziers, criminal duty rosters operate with limited time slots. How should one react?

The court's reasoning — dissected

The Court of Cassation dismissed Mr X's appeal and upheld the procedure. Its reasoning is based on Article 63-4 of the Code of Criminal Procedure (in its version then in force), which provides that the person in police custody "may request to consult with a lawyer" and that the judicial police officer "must inform the president of the Bar of this request without delay". The question was: does this "without delay" require everything to stop if the president of the Bar is not immediately reachable?

The judges answered in the negative. They considered that the judicial police officer had fulfilled his obligation by showing that he had contacted the president of the Bar "by any means, even if unsuccessfully the first time". In clear terms, as soon as the judicial police officer has tried to reach the president of the Bar at the time of the request (or upon the written notification of rights, which occurs shortly after), he may proceed with the interview without waiting for a possible return call. No legal or conventional provision requires the interview to be postponed.

However, note: this decision does not mean that the judicial police officer can ignore the request. He must demonstrate that he made genuine efforts (telephone call, fax, email, etc.). In this case, the judicial police officer had noted the time of the unsuccessful attempt at 10:00 am, then repeated his request at 2:30 pm successfully. The Court validated this attitude: "satisfies the requirements".

What few people know is that this case law has been consistent since 2004. It has been confirmed by several subsequent decisions, particularly in the context of criminal procedure applicable to minors or road traffic offences. undefined, I have encountered cases where persons in custody tried to obtain a nullity by claiming that the lawyer had not been called early enough. But the Court of Cassation is firm: the essential thing is the attempt, not the immediate success.

What this changes for you — practically

For the landlord: If your tenant is implicated in a case (e.g., damage to your property in Béziers), he may be placed in police custody. The procedure will be valid even if the lawyer was not reached immediately. This means that interviews can take place quickly, which can speed up the uncovering of the truth. But if your tenant is acting in bad faith, he cannot invoke a procedural defect to have his interview annulled and escape liability.

For the tenant: You still have the right to a lawyer. But if the judicial police officer has genuinely tried to reach the president of the Bar without success, your interview may begin. Do not rely on a delay of the lawyer to buy time. On the other hand, if the judicial police officer made no attempt at all, then a nullity is possible.

For the buyer or co-owner: In the context of criminal proceedings related to a property dispute (e.g., fraudulent sale in Lodève), witnesses or civil parties may be interviewed under police custody. The same rule applies: the absence of an immediate lawyer is not a defect if the judicial police officer tried to call him.

Practically, if you are faced with police custody, insist that the judicial police officer note the time of his attempt to contact the president of the Bar. If this notation is missing, your lawyer can request the nullity of the interview. In Béziers, the criminal court has already annulled interviews due to lack of proof of such an attempt.

Four tips to avoid this type of dispute

• For judicial police officers: Systematically note the time and means of contact with the president of the Bar (call, fax, email) on the record of notification of rights. If the line is busy, mention it explicitly.
• For lawyers: Check that the record contains this notation. If it is absent, file a motion to nullify before the opening of the hearing.
• For persons in custody: Do not rely on an apparent absence of a lawyer to hope for a nullity. Insist that the judicial police officer renew his attempt if the lawyer does not arrive within a reasonable time (e.g., 2 hours).
• For presidents of the Bar: Organise an effective telephone duty rota with delegates reachable 24/7. In Lodève, a rotation system can avoid dead ends.

Further reading: related case law and developments

This decision is part of a consistent line. Already in 2003, the criminal division had ruled (Crim., 10 June 2003, No. 02-87.542) that the judicial police officer is not required to wait for the president of the Bar to call back. More recently, a decision of 14 November 2018 (No. 18-83.429) specified that the attempt to contact may be made by any means, including mobile phone or SMS.

The trend is therefore towards flexibility: judges prioritise the effectiveness of the investigation while guaranteeing an effective right to a lawyer. However, note: if the judicial police officer does not show any attempt, a nullity may be incurred. The European Court of Human Rights also monitors compliance with the reasonable time for access to a lawyer.

For the future, the question could arise in the context of videoconferencing: if the lawyer is not physically present, is a mere attempt to connect sufficient? Case law has not yet decided, but the logic of 2004 seems applicable.

Key points to remember

FAQ:

1. Can the judicial police officer start the interview without the lawyer having arrived? Yes, as soon as he has tried to contact the president of the Bar, even if unsuccessfully.
2. What if the judicial police officer has not tried to contact the president of the Bar? Request the nullity of the police custody through your lawyer, at first instance or on appeal.
3. Does this right apply to minors? Yes, with specificities (presence of an ad hoc administrator).
4. What is the maximum time between the request and the arrival of the lawyer? No text sets a time limit, but an excessive delay (several hours) may be sanctioned.
5. Can I refuse to be interviewed without a lawyer? Yes, you can exercise your right to silence. But the interview may begin even without a lawyer, if the judicial police officer has tried to contact him.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →