Police custody of a minor: nullity without prior information to the lawyer (Cass. crim., 20 Dec. 2017)

Imagine: you are in Lyon, in the 3rd arrondissement, and your 16-year-old child is taken into police custody for a fight between rival gangs. You immediately call a lawyer. The lawyer goes to the police station, speaks with your son, but leaves without knowing that the police will interview him a second time an hour later. The interview takes place without him. Is this lawful? The Court of Cassation says no, on 20 December 2017, in a decision that strengthens the rights of minors in police custody.

This decision (No. 17-84.017) specifies that the lawyer must be informed of the time of each interview, failing which the procedure is void. For parents, lawyers and property professionals – yes, even them, because minors can be involved in squatting or tenancy damage cases – this is a powerful reminder: formality protects rights.

In short, the Court of Cassation quashes the judgment of the Lyon Court of Appeal, Indictment Division, which had validated a police custody carried out without respecting this formality. Let us break down this decision and see what it changes in practice.

The facts: a story like many that happen every day

On 27 March 2017, a minor, let us call him Kevin, aged 16, is arrested in the Part-Dieu district of Lyon for involvement in a fight. Placed in police custody at 2:00 pm, the investigators inform the public prosecutor at 2:30 pm, i.e. 30 minutes after the start of the measure – a time limit in accordance with the law. But the problem lies with the assistance of a lawyer.

In accordance with the ordinance of 2 February 1945 on delinquent children (Article 4, IV), amended by the law of 18 November 2016, any minor in police custody must be assisted by a lawyer from the start of the measure. Investigators may, however, conduct a first interview without the lawyer, but only two hours after the start of police custody, and provided that the lawyer has been informed.

In this case, the appointed lawyer goes to the police station, speaks with Kevin for 30 minutes, then leaves. However, a second interview is scheduled at 5:00 pm, without the lawyer being informed. The investigators note in the report that the lawyer "appeared and had a meeting", but there is no evidence that he was notified of the time of the second interview. Result: Kevin is interviewed a second time without a lawyer.

The Lyon public prosecutor's office opens a judicial investigation for group violence. On 29 March, the defence lodges an application to have the acts of police custody annulled. The Indictment Division of the Lyon Court of Appeal rejects the application, considering that the lawyer had access to the file and could have known the times. The defence appeals to the Court of Cassation.

The reasoning of the court – analysed

The Court of Cassation, Criminal Chamber, quashes the Lyon judgment on the basis of Article 4, IV, of the ordinance of 2 February 1945 and Articles 63-3-1 to 63-4-3 of the Code of Criminal Procedure (CPP). These provisions require that the minor be assisted by a lawyer from the start of police custody, and that the lawyer be informed of any interview.

More specifically, Article 63-4-2 of the CPP provides that the lawyer is informed "of the placement in police custody and the nature of the offence" and that he may "consult the record of notification of rights". But above all, Article 63-4-3 provides that the lawyer may attend interviews. However, to be able to attend, he must know the time of the interview.

The Court of Cassation notes that in this case, the police custody record does not mention that the lawyer was informed of the time of the second interview. It does not matter that the lawyer had a prior meeting: the obligation to inform is separate and must be proven by the record. Consequently, the second interview is irregular, and all subsequent acts (including the first appearance interrogation) must be annulled.

However, note that the Court does not challenge the possibility of a first interview without a lawyer after two hours. But it requires the lawyer to be informed of each subsequent interview. In other words, the right to legal assistance is not an empty phrase: it must be effective, which requires prior information.

What few people know is that this decision is part of a protective jurisprudence for minors. The Court of Cassation had already ruled, in a judgment of 14 June 2017 (No. 17-80.824), that the failure to inform the lawyer of the location of police custody resulted in nullity. Here, it extends this principle to information on interview times.

What this changes for you – in practice

If you are a parent of a minor placed in police custody in Lyon, Grenoble or elsewhere, this decision gives you a weapon: demand that the lawyer be informed of each interview. In practice, as soon as your child is in police custody, ask the lawyer to note in writing the times of the interviews and to check that he is summoned.

For property professionals, why does this decision concern you? Because minors can be involved in tenancy disputes: squatting, damage, neighbourhood disturbances. If a minor is implicated, the criminal procedure must scrupulously respect defence rights. A nullity can lead to the abandonment of proceedings, which affects civil actions (eviction, compensation).

Example: in Grenoble, a landlord-owner files a complaint for tenancy damage committed by a 17-year-old minor. The minor's police custody is tainted by irregularity (failure to inform the lawyer of the second interview). The criminal procedure is annulled. The owner can no longer bring a civil party action based on this procedure. He must bring a separate civil action, which is longer and more costly.

If you are a lawyer or educator, this decision reminds you to systematically check the records. undefined, I have come across cases where lawyers, overwhelmed, did not check the interview times. Since this judgment, I advise requesting a copy of the police custody record and challenging any interview not notified.

In terms of time limits, the application for nullity must be lodged within six months of the closure of the investigation (Article 173 of the CPP). After this time, the nullity is cured. Act quickly.

Four tips to avoid this type of dispute

• Demand a detailed record: From the start of police custody, ask that the lawyer be named and that the time of each interview be noted, with proof that the lawyer was informed (by telephone, email or mention in the record).
• Do not leave without knowing the times: The lawyer must ask the investigator what times are scheduled for the interviews. If he leaves without this information, he risks missing an interview. Demand an appointment for each interview.
• Check the minor's background: If the minor has previously been in police custody, ensure that the previous procedure was lawful. A nullity can vitiate the entire subsequent procedure.
• Challenge without delay: As soon as you notice an irregularity (failure to inform, interview without a lawyer), lodge an application for nullity before the investigating judge or the Indictment Division. Do not delay, time limits are strict.

Further analysis: related case law and developments

This decision confirms a strong trend of the Court of Cassation to protect the rights of minors in police custody. In a judgment of 14 June 2017 (No. 17-80.824), it annulled a procedure where the lawyer had not been informed of the exact location of police custody. Here, it adds the obligation to inform about interview times.

On the other hand, the Court of Cassation remains cautious: it does not require the effective presence of the lawyer at all interviews. It only requires that the lawyer be informed, so that he may, if he wishes, attend. This flexibility avoids paralysing investigations while guaranteeing an effective right.

In the future, one can expect the Court of Cassation to extend this requirement to other formalities, such as information on the medical examination of the minor or on the extension of police custody. Lawyers must therefore be vigilant.

Key points to remember

FAQ:

1. Can a minor be interviewed without a lawyer during the first two hours of police custody? Yes, the law allows it. But the lawyer must be informed of this interview and its time.
2. What to do if the lawyer is not informed of an interview? Lodge an application for nullity before the investigating judge. Nullity is automatic if the lack of information is established.
3. What is the time limit to challenge? Six months from the closure of the investigation. After this time, the nullity is cured.
4. Does this decision apply to minors under 16? Yes, the ordinance of 1945 concerns all minors (13-18 years).
5. What does the investigator risk for not complying with this obligation? Nullity of the procedure, which may lead to the minor's acquittal or abandonment of proceedings.

In summary: for a minor's police custody to be valid, the lawyer must be informed of each interview, with mention in the record. Otherwise, it is void.

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