Police Custody and Extension of Prosecution: When Notification of New Facts Does Not Create a New Custody

Imagine: you are a property owner in Pamiers, and you learn that your tenant has been placed in police custody for a case of damage. Suddenly, the investigators notify him of an extension of prosecution for a completely different offence, related to illegal construction on your land. You wonder: does this notification create a new police custody, with new rights? The question may seem technical, but it has consequences on the validity of the evidence gathered and, ultimately, on your ability to obtain redress. This decision of the Court of Cassation of 14 November 2019 (No. 19-83.285) answers precisely this question.

In criminal law, police custody is a measure governed by strict rules, in particular Article 65 of the Code of Criminal Procedure, which allows the person to be informed of new facts during the measure. But what happens if the initial police custody is annulled? Do the facts notified subsequently survive? The highest court ruled: no, they are attached to the same police custody and fall with it.

For a property owner or developer involved in criminal proceedings, this subtlety can make the difference between admissible evidence and nullity. Let us delve into the details.

The Facts: A Story Like Many Others

Mr X, a building contractor based in Castelnaudary, is suspected of having participated in a drug trafficking operation. On 2 February 2019, he is placed in police custody at 14:50, with retroactive effect from 13:00. During the measure, the investigators notify him of an extension of prosecution for another charge, apparently unrelated to the trafficking: undeclared work related to his professional activity. Mr X is subsequently charged and sent to the criminal court.

Before the investigating chamber, the defence challenges the legality of the initial police custody, arguing procedural defects (absence of a lawyer, late notification). The judges annul the police custody. But what about the undeclared work facts, notified during this annulled custody? The investigating chamber considers that these facts are unrelated to those initially prosecuted and that they have an independent basis (for example, bailiff's reports or documents seized separately). Consequently, it declares them valid.

The Court of Cassation is seised. It quashes the judgment of the investigating chamber, on the ground that the notification of an extension of prosecution during police custody does not create a distinct measure. In other words, if the initial police custody is annulled, everything attached to it, including subsequent notifications, is void. The undeclared work facts therefore had no independent basis.

The Reasoning of the Court — Dissected

The crux of the dispute lies in the interpretation of Article 65 of the Code of Criminal Procedure. This text allows, during police custody, to notify the person of new facts (an extension of prosecution) without having to release them and then place them in custody again. The question was: does this notification create a new, autonomous police custody, or does it remain attached to the initial measure?

The Court of Cassation answers clearly: the notification does not generate a separate police custody. It falls within the framework of the ongoing measure. Consequently, if the initial police custody is annulled due to irregularities, all acts carried out during this measure, including notifications of extension, are void. The investigating chamber was wrong to consider that the new facts had an independent basis.

In plain terms, the lower courts cannot 'save' part of the procedure by artificially dissecting it. The logic is simple: once the police custody is annulled, the whole block disappears. This reasoning is consistent with settled case law: police custody is a single measure, and extensions are merely modifications of its content.

This decision therefore confirms a strict position, already outlined in previous judgments (e.g., Crim. 12 January 2016, No. 15-84.123). It prevents investigators from circumventing an annulment by artificially isolating subsequent notifications.

What This Changes for You — Concretely

You are a landlord in Castelnaudary and you have filed a complaint for tenant damage. If your tenant is placed in police custody and the investigators notify him of an extension for other facts (e.g., fraud on housing benefit), this extension does not create a new measure. If the initial police custody is annulled for procedural defect, all statements made by the tenant during this measure could be excluded. For you, this means that crucial evidence (confessions, testimonies) could be declared inadmissible, complicating your action for compensation.

If you are a property developer involved in an investigation for construction without a permit, and you are placed in police custody, the investigators could notify you of an extension for a related offence (e.g., undeclared work). But this extension does not give you new rights (such as a new lawyer, a new notification). If the initial measure is annulled, everything falls. It is therefore crucial to challenge the legality of the police custody from the outset.

Concretely, if you are in this situation, you must, with your lawyer, examine the precise chronology: at what time the notification took place, and whether the initial police custody was lawful. An annulment can nullify the entire set of charges, even those notified subsequently. However, note that this decision concerns only police custody; free interviews or summons are not affected.

Four Tips to Avoid This Type of Dispute

• Keep all documents relating to your police custody: notification report, start and end times, mentions of the lawyer. In case of challenge, these elements are essential to demonstrate any extension of prosecution.
• Demand a lawyer from the start of police custody: even if an extension is notified to you, do not consider that you are entitled to a new interview. Insist that the lawyer be present throughout the measure.
• Note precisely the time of any notification: if you are told of new facts, ask that the time be recorded in the report. This will allow verification of whether the extension occurred after a procedural defect.
• Challenge any irregularity promptly: if you believe that the initial police custody is void (absence of a lawyer, late notification), raise the nullity before the investigating judge or the investigating chamber. The decision here shows that this nullity can sweep away the extension.

Further Reading: Related Case Law and Developments

This decision is part of a line of cases protecting the rights of the defence. The Court of Cassation had already ruled, in a judgment of 12 January 2016 (No. 15-84.123), that the notification of new facts during police custody does not constitute a new procedural act, but a simple modification of the subject matter of the measure. However, a decision of the Criminal Chamber of 3 October 2017 (No. 17-81.456) had seemed more nuanced, validating an extension despite a partial annulment, but the facts were different (extension before the annulment).

The current trend is therefore towards a strict reading: once police custody is annulled, everything that took place during it is void, including extensions. This means that investigators must be particularly vigilant about the legality of the initial measure, because an error can nullify the entire investigation. For the future, this case law could extend to other coercive measures (such as customs detention), but for now, it is specific to police custody.

What You Must Absolutely Remember

1. Notification of extension does not create a new police custody. It remains attached to the ongoing measure.
2. If the initial police custody is annulled, the extension is also annulled. The new facts notified do not survive the annulment.
3. You must act quickly. Nullities must be raised within procedural deadlines (before the close of the investigation).
4. This rule protects your rights. It prevents investigators from circumventing a nullity by artificially isolating notifications.

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