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Suspects, Defendants and Victims in the French Criminal Process: The Context of Recent Reform

  • Jacqueline Hodgson (a1)

Extract

The recent reform adopted by the French Parliament, the Loi of 15 June 2000, touches upon a wide range of matters from investigation and detention through to trial and appeal, all within a project designed to ‘reinforce the presumption of innocence and the rights of victims’.1 It is part of a broader reform package which originally included strengthening the independence of the procureur2 from the hierarchical control of the Minister of Justice and changing the way in which magistrats3 are selected,4 together with the measures already enacted in June of 1999 to simplify and clarify aspects of criminal procedure and to reduce delay.5 A large part of the June 2000 reform seeks to strengthen the rights of the accused and the safeguards designed to ensure her proper treatment at all stages of the criminal process. Such rhetoric and aspirations stand in contrast to the Home Office and government discourse to which we have become accustomed on this side of the Channel, a discourse dominated by macho language expressing a desire to ‘get tough’ and ‘crackdown’ on crime and presumed criminals.6 Against the backdrop of almost mandatory defence disclosure and the curtailment of the right to silence in this jurisdiction, provisions which strengthen the rights of the accused and provide her with more information about the case against her together with greater opportunities to influence the pre-trial investigation, will make English criminal justice scholars nostalgic for a time when the rights of the accused were seen as something other than ‘a criminal's charter’.

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1 Loi no 2000–516 du 15 juin 2000 renforçant la protection de la présomption d'innocence et les droits des victimes.

2 The state prosecutor.

3 The career trained judiciary of the procureur, the juge d'instruction and the trial judge.

4 These two reforms required a constitutional amendment and so a three-fifths majority vote in Parliament. Although enjoying broad political support to begin with, this was withdrawn at the last moment and the special sitting of Parliament due to take place in January 2000 was cancelled by the President, Jacques Chirac.

5 Loi no 99–515 du 23 juin 1999 renforçant l'efficacité de la procédure pénale. This legislation establishes a wide range of alternatives to prosecution (France's so called ‘third way’) which the procureur can propose to the accused. They include measures such as the issuing of a formal warning; requiring the accused to carry out up to 60 hours of unpaid work for the community; suspension of a driving or hunting licence for up to 4 months; and paying compensation to the victim. The accused may consult with a lawyer before deciding whether or not to accept the suggested alternative to prosecution. Although no prosecution can be brought, if the victim is later identified, she may claim compensation before the criminal court in the same way as if a prosecution had been brought.

6 See, eg, Belloni, F and Hodgson, J, Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (Basingstoke: Macmillan, 2000), ch 10.

7 This is the term used to describe the period of police detention.

8 According to the then Justice Minister, Mme Guigou in her address to the Sénat, 15 June 1999.

9 Offences are classed as crimes (the most serious, such as murder); délits (such as assault or burglary) and contraventions (the least serious). These classifications represent a hierarchy of gravity and will determine the trial venue.

10 See further, Hodgson, J, ‘The police, the prosecutor and the juge d'instruction: Judicial Supervision in France, Theory and Practice’ (2001), British Journal of Criminology 41(2), 342–61;Bell, J, French legal Cultures (London: Butterworths, 2001);Legrand, P (1996) ‘European Legal Systems are not Converging’ (2001) ICLQ, 52. On the dangers of glib comparisons, Hodgson, J, ‘Comparing Legal Cultures: The Comparativist as Participant Observer’, in Nelken, D (ed), Contrasting Criminal Justice (Aldershot: Ashgate, 2000), 139–56. On the importance of legal culture, see also Nelken, D, Comparing Legal Cultures (Aldershot: Dartmouth. 1997).

11 All articles refer to the CPP unless otherwise indicated.

12 Although only allowing the right of individual petition since 1981, France has been condemned by the European Court on more than seventy occasions. Only Italy exceeds this.

13 1993 15 EHRR 1. For other examples, see Bell, J, ‘The French Pre-Trial System, in Walker, C and Starmer, K’ (eds), Miscarriages of Justice: A Review of Justice in Error (London: Blackstone Press, 1999), 354–70 at 365 n 35; Bell, (above at n 10), at 111; Marguénaud, J-P (2000) ‘La dérive de la procédure pénale française au regard des exigences européennesDalloz (Chroniques), 249–55.

14 This court hears appeals on a point of law. Exceptionally and with the leave of a special commission of five judges, the court can act as a full appeal court if, as a result of new evidence, there is a prima facie case that a judicial error has been made.

15 See, eg, Poitrimol ECHR 23 Nov 1993; Omar and Guérin ECHR 29 July 1998; Khalfaoui ECHR 14 Dec 1999. Like the celebrated instance of Maurice Papon, M Khalfaoui had requested and been refused special dispensation not to appear. See further Hilaire, J-P Delmas Saint (2001) ‘Affaire Maurice Papon. La justice pénale française avait encore des choses à dire … Deux étranges non-lieux à statuer’, Dalloz, (Jurisprudence), 3222.

16 Referring to the case of Maurice Papon, who failed to appear before the court having fled the country.

17 See, eg, the discussion reported in Le Monde 16 Feb 2000. See also Reinhardt and Slimane Kaïd v France ECHR 31 Mar 1998; Slimane Kaïd v France ECHR 25 Jan 2000; Voisin v France ECHR 8 Feb 2000.

18 The right to legal representation, even where the defendant is absent, has now been accepted by the full chamber of the Cour de cassation in the case of Dentico heard on 2 Mar 2001 (00–81.388, No 473 P). This reverses a long line of decisions and is significant in holding that Art 410 CPP (which allows the case to be heard in the defendant's absence) is contrary to Art 6 ECHR if the defence is unrepresented. See Jean, Pradel's case note (2001) ‘Le prévenu cité à personne, absent, et non excusé, a droit néanmoins à l'assistance d'un avocat.’ Dalloz (Commentaires) (24), 18991901.

19 See further, Marguénaud, 2000 (above n 13) for a discussion of some of the most important findings against France which, he argues, demonstrate the growing discrepancy between the realities of domestic practice and the way in which France presents itself to the outside world. He notes the ‘arrogant’ attitude of the higher courts and the legislature to the decisions of the European Court in Strasbourg. See also Pradel, J (2000) ‘La procédure pénale française à l'aube du troisième millénaire’, Dalloz (Chroniques) (1), 19.

20 There have been continuous complaints that resources remain woefully insufficient and magistrats have protested, throwing their codes de procédure pénale at the windows of the Ministry of Justice (19 Jan 2001) and organising days of action in March and November 2001. An aditional 1,200 magistrats and 2,500 assistants have been promised between now and 2005. This has not quelled criticism on the part of police and magistrats concerning the acute shortage of material resources and personnel. See, eg, the police demonstration in Oct 2001 and the petition of juges d'instruction in December 2001.

21 The first report on the application of the June 2000 reform was published in December 2000 and resulted in a delay of the application of some provisions relating to the juge de l'application des peines. The second was published in June 2001. See J-P Collomp (Inspecteur général des services judiciaires) (2001) Rapport de la mission sur l'application de la loi du 15 juin 2000 relative au renforcement de la protection de la présomption d'innocence et des droits des victimes Paris: Ministère de la Justice. In the face of mounting unease on the part of police (who dubbed the reform, the ‘hooligan's law’), the MP Julien Dray was commissioned to gather professional opinion on the reform's impact on the work of the police and gendarmes. Published in December 2001 (Evaluation de l'application et des conséquences sur le déroulement des procédures diligentées par les services de police et de gendarmeries des dispositions de la loi du 15 juin 2000 renforçant la protection de la présomption d'innocence et les droits des victimes Rapport pour le Premier Ministre, 19 Dec 2001) most of the recommendations in the report were adopted and the June 2000 law amended by parliament at the beginning of 2002. The government has said that it will not be expanding the use of videotapes to adult suspects.

22 Madame Guigou, the then French Minister of Justice, made clear her views when addressing the Sénat in June of 1999: ‘The adversarial system of justice is by nature unfair and unjust. It favours the strong over the weak. It accentuates social and cultural differences, favouring the rich who are able to engage and pay for the services of one or more lawyers. Our own system is better, both in terms of efficiency and of the rights of the individual.’

23 The principle of contradictoire, as it is known, is seen, for example, in the introduction of public bail hearings (for détentionprovisoire during instruction); public hearings before the chambre d'instruction (formerly the chambre d'accusation) at the request of the accused, unless this threatens the security of the instruction or a third party; and the ability of the lawyers representing the parties to question directly witnesses at court.

24 Compare the opening paragraphs of the preliminary report of the Delmas-Marty Commission in 1989 (established because of concern over the impact of the ECHR upon French criminal procedure): ‘But the whole difficulty of criminal procedure … is that efficiency, no matter how necessary it is, cannot be pursued at any price. Even though torture may make a guilty person confess, it is clear that this could not justify its use. Moreover, constitutional principles such as international agreements undertaken by France, require that the efficiency of the process be subject to the respect of the fundamental rights of the individual. In fact, this double imperative … is not necessarily antagonistic and it would be better to talk about the ‘bipolarity’ of the criminal process’, M Delmas-Marty, La mise en état des affaires pénales: Rapport de la Commission Justice pénale et Droits de l'homme (Paris: La Documentation Française, 1991), 11–12. Interestingly, the most recent circular (10 Jan 2002) to be issued by the Ministry on Justice (in response to sustained protest by the police and gendarmes concerning the difficulties in implementing the June 2000 reform) is phrased not in terms of the effectiveness of the investigation, but sees a return to rhetoric which speaks of the necessity for la répression.

25 See, eg, Vroom, C (1988) ‘La liberté individuelle au stade de l'enquête de police en France et aux Etas-Unis.’ Revue de science criminelle et de droit pénal comparé (3), 487507, who describes the underlying values of the French criminal process in crime control terms: the freedom of the individual is best protected through the provision of broad legal powers for the repression of crime.

26 I am grateful to an ICLQ reviewer for suggesting that this point be expanded upon.

27 A study conducted during 1997–9 and funded by the Leverhulme Trust, examining the investigation and prosecution of crime in France. A smaller study funded by the British Academy and the Nuffield Foundation was conducted in 1993–4. For details of the methodology see Hodgson (above n 10), 349.

28 This reflects the idea that criminal procedure has three distinct phases—instruction, prosecution and trial. The dominant role of the police, be it through gathering initial evidence for the procureur or carrying out the investigation for the juge d'instruction through the delegated powers of the commission rogatoire procedure, is not recognised in this characterisation. I was frequently told that whatever witnesses or suspects said to the police could later be retracted and it was only what took place before the magistrat which was considered important.

29 It should be recalled that the Delmas-Marty Commission, 1991 (above n 24) which preceded the reform, was required to report on the compatibility of French criminal procedure with the European Convention.

30 See Marguénaud (above n 13)

31 This may also be exacerbated by the increasingly interventionist stance taken by the Court (Marguénaud (above n 13)) argues this generally. Burgelin, J-F, (2001) ‘La Cour de cassation en question’, Dalloz (12), 932–4 fears that the European Court is becoming an additional level of appeal, blurring the role of the Cour de cassation. He muses whether, just as the Euro has replaced the franc, the European Court will replace the Cour de cassation. (Fenwick, H, Civil Liberties—New Labour, Freedom and the Human Rights Act (Harlow: Longman, 2000), also notes the impact of the decision in Condron v UK [2000] JCIV LIB 253 upon the role of the Court of Appeal.) This trend is unlikely to abate since the disappearance of the Commission as a preliminary filter on cases with the coming into force of Protocol 11 in Nov 1998.

32 See Marguénaud (above n 13) and for a recent ‘softening’ of approach, see discussion above, n 18.

33 Interestingly, whilst it has been condemned on a number of points, described above, it is not the case that France has been obviously in breach of the Convention in relation to, eg, the suspect's access to a defence lawyer. Nor has the institution of the juge d'instruction been condemned as characterising an unacceptable conflict of interest between investigation and judicial roles, though the opportunity for debate between the procureur and the defence was required in détention provisoire decisions. Yet, these are areas where the need for reform has been recognised. This was again noted by the Justice Minister, Marylise Lebranchu, who described the old procedure of detention as archaic and in need of reform, in order that France was no longer seen as the ‘mauvais élève de l'Europe’ (Discours de Marylise Lebranchu, 22 Jan 2002).

34 Notably McCann v UK (1995) 21 EHRR 97. In response to the Court's condemnation under Art 5(3) of the detention of a terrorist suspect for 4 days and 6 hours (Brogan v UK (1989) 11 EHRR 117) the government did not alter the law, but simply re-entered a derogation from Art 5(3) under Art 15. This derogation was upheld in Brannigan andUcBride v UK (1993) 17 EHRR 594.

35 eg, the Interception of Communications Act 1985 followed from the decision in Malone v UK (1984) 7 EHRR 14, where the Court found a breach of Art 8.

36 R v Secretary of State for the Home Department, ex parte Brind [1991] AC 696.

37 See McGoldrick, D (2001) ‘The United Kingdom's Human Rights Act 1998 in Theory and Practice.’ ICLQ, 50(4), 901–53, 904.

38 See, eg, discussion in Fenwick (above, n 31), 27–9.

39 See Edwards v UK A 247–B (1992). In Schenk v Switzerland (1988) 13 EHRR 242, no breach of Art 6(2) was found when an illegally obtained tape recording was admitted as evidence. Cf the later case of Teixeira de Castro v Portugal (1999) 28 EHRR 101, where the Court held that the defendant (of previous good character and showing no ‘predisposition’ to commit the offence of supplying drugs) was deprived of a fair trial because of his entrapment by police officers. The jurisprudence around the right to silence has allowed a wide margin of appreciation. A breach will be found only if some penalty attaches to the failure to speak (see Saunders v UK (1997) 23 EHRR 313). Anything less will not necessarily be condemned—see Murray (John) v UK (1996) 22 EHRR 29; Salabiaku v France (1988) 13 EHRR 379.

40 Section 78 PACE allows the trial judge a discretion to exclude evidence which, in all the circumstances, it considers it would be unfair to admit.

41 For a discussion of the 1993 reforms see Hodgson, J and Rich, G (1993) ‘A Criminal Defence for the French?New Law Journal (143), 414;Trouille, H (1994) ‘A Look at French Criminal Procedure’, Criminal Law Review, 735–44.

42 The juge d'instruction is responsible for the investigation of the more serious and complex cases. More than 60,000 people each year are mis en examen, that is, investigated through the process of instruction, according to the Justice Minister in her speech to the Sénat, 15 June 1999.

43 For an account of the rise of the profession between the thirteenth and fifteenth centuries, followed by the loss of status from the sixteenth century when a large status gap opened up between avocats and magistrats, see Karpik, L, French Lawyers: A Study in Collective Action 1274–1994 (trans Scott, Nora) (Oxford: Clarendon Press, 1999), ch 1.

44 As one juge d'instruction told me: ‘The lawyer, he works as a liar, to see how far he can distort the law.’ For further discussion of the importance of these contrasting legal cultures and professional ideologies, see Hodgson (above n 10).

45 This is true even of the way in which they are regarded within the profession. Of fourteen fields of law which Karpik (above n 43) uses for his analysis (based upon questioning lawyers), crime ranked 12th in terms of prestige (p 198). This is also the position in the UK, where criminal lawyers enjoy a relatively low status within the profession.

46 A typical case before the tribunal correctionnel will attract a fee of 700FF (€100), around £70. See Le Monde 17 May 2000.

47 Karpik (above n 43), 214. ‘The typical solo practitioner, after pleading in two or three courts which are not necessarily in the same locale, after spending time at the palais taking care of the numerous details without which a case tends to bog down, after having visited clients in prison, having received clients in the office, no longer has enough time to analyse the case documents, to write up his pleadings, to prepare the advice and legal documents, without extending the limits of the ordinary working day: he or she must find the additional time early in the morning, late at night or on the weekends’ (Karpik (above n 43), 215). The description of the lawyer's day is strikingly similar to those reported in research in England and Wales. See McConville, M, Hodgson, J, Bridges, L, and Pavlovic, A, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994), at, eg, 22–4.

48 Under this procedure, a permanent duty section is established and the procureur endeavours to make a decision whether or not to charge by the end of the police detention and investigation, rather than prolonging the enquiry and issuing further instructions by post.

49 Cohen, D (1992) ‘Le droit de l'assistance effective d'un avocat de la défense’, Revue Internationale de droit pénal, 63, 729–54.

50 See McConville, M and Hodgson, J, Custodial Legal Advice and the Right to Silence (London: HMSO, 1993) and McConville et al (above n 47).

51 This was described by the recent Truche Commission (Truche, P, Rapport de la commission de réflexion sur la Justice (Paris: La documentation Française, 1997) as follows: ‘It is for the parquet and the juge d'instruction to gather the evidence of any offence against the criminal law without presuming guilt. They are concerned to investigate both that which inculpates and that which exonerates, giving the suspect the benefit of any doubt. In doing this, they must respect legal procedures’, at 60.

52 See the first few paragraphs of the Ministry of Justice's ‘Exposé des motifs du projet de loi renforçant la protection de la présomption d'innocence et les droits des victimes.’

53 Compare the ten fundamental principles which the Delmas-Marty Commission, 1991 (above n 24), 113–24 proposed should appear at the start of the CPP.

54 Pradel, J (2001) ‘Les personnes suspectes ou poursuivies après la loi du 15 juin 2000: Evolution ou révolution?Dalloz (Doctrine) (13), 1039–47,w notes that both Belgium and Canada rejected the idea of adopting a preliminary article setting out general principles.

55 Exceptionally some, relating to custody conditions, are scheduled to come into force in June 2003.

56 In her address to the Sénat 30 May 2000.

57 For a broad discussion of the role of the media in French criminal proceedings, see Bell (above n 10), 117–25

58 For a detailed discussion of the AIDS-contaminated blood case, which involved accusations against three former government ministers for their failure to supervise adequately the health service, see Elliot, C and Vernon, C, French Legal System (Harlow: Longman, 2000), 101–10.

59 See, eg, the reports in Le Monde (21 July 2000; 25 July 2000) of the juge d'instruction's interview with Jean Tiberi, the Mayor of Paris who was accused of corruption in misusing the influence of his public office.

60 The acquittal in November 2001, of the former minister Dominique Strauss-Kahn, has again highlighted the tension between the right to know and greater transparency on the one hand and the presumption of innocence on the other. Many claim that being named as a suspect instantly stigmatises that person—in this case, causing the minister to resign from his post.

61 The original proposal (which would have allowed the parquet to prosecute offenders in the media independently of the view of the victim) was modified in October 1999, after representations from the press. Only images taken without the person's consent and about which she has brought a complaint may be the subject of a prosecution.

62 Broadly speaking, this allows the trial to take place the same day as charges are formally brought against an accused, if the maximum sentence for the offence is between 1 and 7 years imprisonment and the procureur judges that the case is ready for immediate trial (Art 395 CPP). Current proposals set out in July 2002 (Lopsi: Loi d'orientation et de programmation pour la sécurité intérieure) would extend this procedure to offences with a maximum sentence of 10 years’ imprisonment.

63 More than 300,000 people are placed in police detention, garde à vue, each year according to the Justice Minister in her speech to the Sénat, 15 June 1999.

64 See n 5 above.

65 See Le Monde 19 June 2001.

66 See Le Figaro 9 Mar 2001.

67 CNCDH Avis sur la proposition de loi complétant la loi du 15 juin 2000 renforçant la protection de la présomption d'innocence et les droits des victimes, 24 Jan 2002.

68 Phillips, C and Brown, D, Entry in to the criminal justice system: a survey of police arrests and their outcomes. Home Office Research Study No 185 (London: Home Office, 1998), found only one case out of a sample of 4,246 where detention was refused. See also Maguire, M and Norris, C, The conduct and supervision of criminal investigations. RCCJ Study No 5. (London: HMSO, 1993), who attribute the weakness in police supervision to the fact that supervising officers are subject to the same performance pressures as fellow officers and do not wish to be seen to undermine the work of their colleagues, the arresting officers.

69 The most recent circular produced by the Ministry of Justice emphasises the originating power of the OPJ to place a person in GAV. The role of the procureur is in judicially supervising the GAV period and not in validating the decision of the OPJ. Given the procureur's duty to supervise the conduct of the GAV and to direct the police in the investigation and collection of evidence; and given that she alone may authorise the release or further detention of the suspect, this is arguably an unjustifiable distinction to draw. If an OPJ has placed a person in GAV without proper grounds, the procureur should order the suspect's release. If she does not, she is confirming the decision of the OPJ to detain. This is surely part of the rationale of the safeguard for requiring the procureur to be informed of any detention.

70 The most common reason for any discussion between the police and procureur is not to dispute detention, but to clarify legal procedure and form and to discuss avenues of enquiry. In one area, even this was precluded as all initial detention information was sent by fax and remained unread until the close of detention. See Hodgson, J (2002) ‘Hierarchy, Bureaucracy and Ideology in French Criminal Justice: Some Empirical Observations’, Journal of Law and Society 29(2), 227 at p 243.

71 The most recent Ministry of Justice circular (10 Jan 2002) makes it clear that the dossier need only contain a reference to the fact that the procureur was informed by fax. The fax itself need not be appended. In this way, the dossier will not reveal the terms in which the procureur was informed, the very information on which any decision by her will be made.

72 The circulaire générale says, ‘As in the past, visiting the garde à vue will allow the procureur to ensure that it is properly conducted and that the procedures are respected.’

73 One procureur explained the danger of a more surveillance based approach: ‘There used to be a woman in the permanence who did go down to the police station and it caused a terrible rumpus. The police were furious that she just turned up. You have to be careful when you go down—so that the police don't think it's because you're suspicious of them’, Hodgson (above n 10), 351.

74 The Collomp report (above, n 21), para 1.4.2, charged with evaluating the success of the reform, noted that of the ten parquets inspected, only four had complied fully with the requirement to visit each police station every 3 months. Three had made no visits and three had made only some. Of particular concern was the number of stations to be visited and the distances between them

75 The circular (4 Dec 2000, para 1.3.1) accompanying the June 2000 legislation anticipates that visits will be directed towards ensuring the adequacy of the material conditions of the GAV, rather than the treatment of individual suspects.

76 This is not to deny the importance of monitoring material conditions—as highlighted by the most recent report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2001) which criticised the meagre progress made by France over the last 8 years in this respect. Poor conditions of detention were highlighted in the reports following both the 1991 and 1996 visits. Rapport au Gouvernement de la République française relatif à la visite en France effectuée par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou degradants (CPT) du 14 au 26 mai 2000 (2001), para 22. The committee also commented that it hoped procureurs would make full use of their powers to visit police stations (para 40). The government's response (Réponse du Gouvernement de la République française au rapport du Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) relatif à sa visite effectuée en France du 14 au 26 mai 2000 (2001)) was that visits would ensure that the GAV is conducted according to the provisions of the law. Given the rarity of such visits, this is unlikely.

77 This is significant, as the process of interrogation and detention remains shielded from close scrutiny. Leigh, LH and Zedner, L, A Report on the Administration of Criminal Justice in the Pre-Trial phase in France and Germany. RCCJ Study No 1 (London: HMSO, 1992), found that interrogation could take place for oppressive lengths of time in order to ‘break’ the suspect—although their research was conducted prior to the 1993 reforms. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 2001 (above n 76) again suggested the clear need for a code of conduct to guide police in interrogating practice and standards (para 37). This is the third time that this point has been made (it was raised following the 1991 and 1996 visits) but the Government response (2001, above n 76) denies that such a code is necessary.

78 The revision does not go as far as to say that every question and answer must be noted down contemporaneously (as was the case in England and Wales before tape recording was fully introduced) and so the way in which new practices will develop is unclear.

79 McConville et al (above n 47) found that defence lawyers rarely listened to tapes. Judges reported listening to tapes in only 11 per cent of contested Crown Court cases (Zander, M and Henderson, P, The Crown Court Study. RCCJ Study No 19 (London: HMSO, 1993), ch 3) and the figures are likely to be much lower in the magistrates' court. Officers in France complain that nobody watches the recordings of interrogations of juveniles. See Dray (above n 21) s 9.

80 See Baldwin, J, Preparing the Record of Taped Interview. RCCJ Study No 2 (London: HMSO, 1993).

81 In the case of Stephen Miller (one of the ‘Cardiff Three’ accused of the murder of a Cardiff prostitute) the police interrogation continued despite more than 300 denials on his part. Notably, his solicitor was present throughout and was described as ‘being gravely at fault for sitting passively through this travesty of a [police] interview.’ R v Paris, Abdullahi and Miller (1993) 97 Cr App R 99.

82 See Moston, S and Stephenson, GM, The Questioning and Interviewing of Suspects Outside the Police Station. RCCJ Study No 22 (London: HMSO, 1993). There is a strong incentive for such unofficial questioning: the authors found that 74.5 per cent of such cases resulted in some form of admission, compared to 58.8 per cent of official interviews (p 34).

83 Opinion on the proposed legislation 24 Jan 2002, above n 67

84 See eg Dixon, D, Bottomley, K, Coleman, C, Gill, M, and Wall, D (1989) ‘Reality and rules in the construction and regulation of police suspicion.’ International Journal of the Sociology of Law, 17, 185 and McConville, M, Sanders, A, and Leng, R, The Case for the Prosecution (London: Routledge, 1991), for early evaluations of the impact of PACE.

85 In the course of my own research I witnessed suspects signing blank forms to be filled out later as part of the custody record.

86 See Hodgson, J and Rich, G (1995) ‘L'avocat et la garde à vue: experience anglaise et reflexions sur la situation actuelle en France’, Revue de science criminelle et de droit pénal comparé (2), 319–29.

87 See, eg, Waquet, P (1991) ‘Réflexions sur les rapports de la Commission Justice pénale et droits de l'homme’, Revue de science criminelle et de droit pénal comparé, 3, 518–25;Gendrel, M (1992) ‘Garde à vue et droit de l'individu. La défense doit—elle commencer dans les locaux de gendarmerie ou de police?’, Droit pénal (Mars), 13.

88 See further Dixon et al (above n 84) and McConville et al (above n 84) for an account of the effect of PACE upon investigations; McConville and Hodgson (above n 50) for an evaluation of custodial legal advice.

89 See, eg, Bucke, T and Brown, D, In police custody: police powers and suspects' rights under the revised PACE codes of practice. Research Study No 174 (London: Home Office, 1997). Whilst the police were found initially to adopt a number of ploys to dissuade suspects from requesting legal advice (such as failing to mention that it was free, or most effectively, warning that it would increase the length of time spent in custody) changes in the Codes of Practice sought to minimise this. The low take-up rate appears to be a result of a low request rate, rather than any refusal on the part of the police to allow access.

90 Royal Commission on Criminal Justice, Chaired by Viscount Runciman of Doxford (1993) Cmnd 2263. London: HMSO.

91 See Bridges, L and Hodgson, J (1995) ‘Improving Custodial Legal Advice’, Criminal Law Review, 95 and Bridges, L and Choongh, S, Improving Police Station Legal Advice: The Impact of the Accreditation Scheme for Police Station Legal Advisers (The Law Society and Legal Aid Board, 1998), for evaluations of the scheme.

92 In addition, it should be noted that although introduced initially as a necessary counterbalance to the increased police powers introduced under PACE, the presence of a defence lawyer during police interrogation has been used over and again to justify further inroads into the suspect's due process rights—most notably in the curtailment of the right to silence under the Criminal Justice and Public Order Act in 1994.

93 And again after 20 and then 36 hours, if detention is prolonged. The suspect is only told of her right at the start of detention and the official evaluation of the June 2000 reform (Collomp (above n 21)) notes that certain lawyers thought that suspects should be reminded of the right again after 20 hours of detention. Where the suspect is held in connection with organised crime, she will only be able to see her lawyer after 36 hours and in instances of drug trafficking and terrorism, after 72 hours. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (above n 76) was strongly critical of these exceptional provisions and recommended that all suspects be given immediate access to legal advice. The Government responded (above n 76) that access in such instances was delayed and not denied and that such provision was necessary in the public interest. (Cf Murray v UK (1996) 22 EHRR 29, where the European Court held that denying access to legal advice for 48 hours to a terrorist suspect was incompatible with the fair trial provisions of Art 6 ECHR. A similar decision was reached in Magee v UK (2000) HRCD 277. Both of these cases involved the Criminal Evidence (Northern Ireland) Order 1988 which allows the court to draw adverse inferences from silence, making legal advice arguably more important.)

94 Earlier access to a lawyer was the intention of the original 1993 project, but a change of government later that year prevented the second half of the reforms from coming into effect.

95 In my own questionnaire survey, 100 per cent of police and 84 per cent of procureurs opposed the change. Pradel (above n 54) remains sceptical of this new reform, arguing that it presents the risk of undermining the investigation if friends and accomplices are warned of a person's detention and subsequent searches prove unfruitful. This comment demonstrates a continuing suspicion of defence lawyers and their integrity.

96 No specific figures are provided, but the official evaluation report notes only a slight increase in the number of suspects attended by a defence lawyer. Collomp (above n 21), para 1.4.1

97 See, eg, Le Monde 19 June 2001. One officer told the reporter: ‘I have also noticed that the arrival of the lawyer, straightaway, that releases the tension of really furious suspects who would sometimes take three or four hours to calm down. And for us, that is real progress.’

98 The enquête flagrante is the investigation of the 85 per cent of offences which are classed as beingflagrant. This is defined in Art 53 CPP and, in general, refers to offences which are being, or have recently been committed. The distinction is important in determining the powers of the police and the length of time the suspect may be detained in custody.

99 See Le Monde, 19 June 2001.

100 Witnesses may be retained for the time necessary to take a statement from them. This need not take place immediately upon their detention and a period of 4 hours in custody is considered acceptable, by analogy with the procedure relating to identity checks. In addition, if the witness will not come to the station voluntarily, force may be employed on the authority of the procureur.

101 Circular 10 Jan 2002—see esp para 1, 1.1, 1.2.

102 This is underlined in para 1.1— ‘There need exist only one single piece of evidence’ against the person. The tentative nature of this evidence is also emphasised—it need not be enough to open an information, to prosecute or to convict.

103 Dray (above n 21). The report suggested a practical interpretation to guide officers, which was provided in the circular 10 Jan 2002.

104 2002 (above n 67).

105 See also the cynical comments of Pradel (above n 54) who dismisses this aspect of the reform as having little effect: the right to silence already existed and seasoned criminals have always known this. He does not countenance the value this might have to the first time or innocent suspect.

106 See, eg, the report on the implementation of the 2000 reforms, Collomp (above n 21), para 1.4.2; Le Monde, 19 June 2001. Interestingly, those who are silent are likely to be disciplined for their non-cooperation—see Le Monde 13 Feb 2001.

107 The CNCDH (above n 67) denounced the clause as placing pressure on the suspect, hindering the proper organisation of her defence and resting upon no legal basis.

108 For a more detailed discussion of the reluctant accommodation of the defence lawyer within French pre-trial criminal procedure, see Hodgson, J (2002a) ‘Constructing the pre-trial role of the defence in French criminal procedure: An adversarial outsider in an inquisitorial process?International Journal of Evidence and Proof, 6(1) 116. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (above n 76) recommended that the defence lawyer be present during police interrogation of suspects (para 34). This was not responded to directly in the Government's response (above n 76). The Committee also recommended that all interrogations be tape-recorded (para 38), as did the Truche Commission (above n 51). The Government noted that videotaping would be considered, though 6 months later in January 2002, it announced that this has been ruled out for the moment.

109 See Blatier, C (1999) ‘Juvenile delinquents in France: Main Components of the Evolution of Justice for MinorsBritish Journal of Criminology, 39 (2) 240–52, for an account of the legal regime governing juveniles in France. But note also the repressive measures proposed by the new government in July 2002 (above n 62).

110 Art 4 of ordonnance number 45–174 of 2 Feb 1945 concerning juvenile crime. The video will only be viewed if the content of the statement is contested.

111 Videotaping the interrogation has not relieved officers of the requirement to make a written record. Dray reports that officers felt that they were working to no purpose, given the additional effort required to make a recording which nobody will see. Dray (above n 21) s 9.

112 In particular, the role of the juge d'instruction is contrasted favourably with the investigation process in place in adversarial systems of criminal justice. In addressing the Sénat (15 June 1999), Madame Guigou said, ‘I prefer, and I want to make this quite plain, an independent judge who investigates evidence both for and against the suspect, to police officers who carry out large parts of the criminal investigation without any judicial supervision.’

113 More than 30,000 people are place in détention provisoire each year according to the Justice Minister in her speech to the Sénat, 15 June 1999. In her speech at the second reading of the Bill in the Sénat (29 Mar 2000) she noted that of the 52,000 people currently held in prison, 13,000 were there on the order of the juge d'instruction in détention provisoire, the average length of such detention being 4.2 months.

114 eg, the short-lived introduction of the juge délegué in 1993.

115 Many of the current reform proposals emanate from the 1997 report (above n 51) of the Commission de réflexion sur la Justice (chaired by Pierre Truche, who, notably, also sat on the 1991 Delmas-Marty Commission, above n 24), which was charged with examining the protection of the presumption of innocence and the independence of the office of public prosecutor.

116 As well as stating the exceptions under which the suspect may be placed in custody, Art 137 CPP now underlines the presumption of liberty by explicitly mentioning that the mis en examen is presumed innocent.

117 See Collomp (above n 21); Le Monde 10 May 2001.

118 Le Figaro 9 Mar 2001.

119 See Le Monde 26 Oct 2001 relating to the release of Jean-Claude Bonnal in December 2000, subsequently suspected of committing six murders, two of the victims being police officers. Interestingly, some have suggested that this decision was in protest at the late hour at which the suspect was presented. This problem was specifically highlighted in the official evaluation of the reforms—Collomp (above n 21), para 2.1.1. Also Le Monde 5 Dec 2001 relating to the release on bail of a Congolese man found in possession of 1 kg of heroin and a quantity of cocaine. He failed to appear before the juge d'instruction the next day or subsequently. Government proposals set out in July 2002 (see above n 62) would require the juge d'instruction to give written reasons when not following the parquet's request for a remand in custody and would provide the procureur with a right of appeal against the juge d'instruction's decision to release the suspect on bail.

120 This court tries délits punishable by a term of imprisonment or a fine of 25,000FF or more (Art 381 CPP). The July 2002 proposals (see above n 62) would extend this period to 3 years.

121 The témoin assisté cannot be the subject of bail or détention provisoire and neither can she be sent for trial. She must first be mis en examen before these procedures can be invoked (Art 113–5 CPP). However, as she is not a party to the proceedings, neither can she appeal against the judgment of the chambre d'instruction. See Cour de cassation., 13 Nov 2001, 01–85. 506 (No 7146) Dalloz 2002 (4) 372

122 See further Pradel, J (2001) ‘‘L'appel’ contre les arrêts d'assises: un apport heureux de la loi du 15 juin 2000.’ Dalloz, Doctrine (25), 1964–72.

123 See speech of Justice Minister to Sénat (29 Mar 2000).

124 The official evaluation report notes that few prisoners have requested lawyers in this process. For the JAP, on the other hand, it is estimated that their workload will double as a result of the changes and they are struggling with poor human and material resources—Collomp (above n21), 1.3.2, 2.1.1, 2.1.2.2, 2.2.2.

125 Courts sitting after midnight are reported in the official report—Collomp (above n 21), para 2.1.1

126 The requirement to visit police stations every 3 months has not been possible in some areas where only a few procureurs must cover a wider area. One example given was of 296 visits per year, covering 18,000 km—Le Figaro 22 Jan 2001. See also Collomp (above n 21), para 1.4.2.

127 See Collomp (above n 21), paras 1.2.2, 2.1.1. Some additional resources have been promised after strong protests. See above n 20.

128 The new government has continued this trend and its proposed legislation has been criticised widely as a retrograde step, particularly in its approach to juvenile offenders. The reform (see above n 62) is being put through Parliament in a special session to speed things along.

129 Several officers are currently mis en examen for the murder of a 16-year-old who tried to drive through a road block in December 1997. See Le Monde, 8 Sept 1999.

130 The report (2001, above n 76) expresses concern over the treatment of suspects and detainees, especially foreign nationals and those held on suspicion of terrorist activity (paras 14–21, 37, 39).

131 Selmouni v France ECHR 28 July 1999.

132 See he Monde 31 Sept 1999. The court found that the sexual assault had not been proved.

133 See Hodgson (above n 10), esp pp 350–4. This is especially surprising given that 40 per cent of questionnaire respondents reported suspecting that violence or excessive pressure had sometimes been used against suspects held in police custody.

134 Police misconduct in the performance of ‘judicial’ duties will, however, be investigated by a judicial (rather than police) inspectorate under Art 15–2.

135 See, eg, the speech of the then Justice Minister, Madame Guigou, to the Sénat, 30 May 2000.

136 In almost every speech before Parliament and every media interview, Madame Guigou affirmed her commitment to the present system in France and her dislike of things adversarial. See, eg, her speech to the Sénat in June 1999 (above, n 22) and her interview with Le Monde 15 Dec 1999, where she rejected the idea of the defence lawyer playing a greater role in the process: ‘Lawyers are there to help their clients and to ensure the proper conduct of the garde à vue, but not to start getting involved in the case. I have chosen not to adopt the adversarial procedure because it reinforces the inequalities of access to the law. It would lead ultimately, for example, to the use of private investigators in order to verify the investigation led by the police.’ In addition, the government has had to contend with fierce opposition to these reforms on the part of the police.

137 Historically, this has been the function of an independent defence in general: ‘[the judiciary] set aside a space of its own and imposed an operating rule that was almost magical, in that it postulated the neutralization of the effects of real society, declared the equality of the parties, and guaranteed the impartiality of the judgment. If lawyers' independence was a constituent condition from the outset, it is because it was regarded as the condition, and soon as the sign, of an independent judiciary’, Karpik (above n 43), 146–7. See also the Delmas-Marty report (above n 24).

138 Professor Mireille Delmas-Marty has been the most prominent in this respect. See, eg, Delmas-Marty, M (1990) ‘Réformer: anciens et nouveaux débats.’ Pouvoirs, 55, 521; ‘The Juge d'Instruction: Do the English Really Need Him?’, in Markesinis, BS (ed), The Gradual Convergence (Oxford: Clarendon Press, 1994), 4658. See also Pradel (above n 54).

139 On the day that most of the reforms came into operation, Mme Gilles-William, the president of the association ‘droit à la sécurité’ told Le Figaro (1 Jan 2001), ‘The root of the problem is that we are aping the American system, when our own law does not lend itself to that. The overall result will be negative.’

140 Art 5(3) ECHR requires that a person who is arrested or detained be immediately brought before a judge who is empowered to exercise judicial functions.

141 Huber v Suisse 1990 (23 Oct 1990. Series A, 188)

142 See Elliot and Vernon (above n 58), 150.

143 It is interesting that the Truche Commission (above n 51) recommended that police interviews be tape recorded, but not that lawyers be present. It seems more likely that of the two, tape-recording would be preferred over the intrusion of the defence lawyer, whose non-magistrat status and role in representing the interests of the suspect, means that she continues to be regarded as a partisan outsider.

144 See, eg, McKillop, B (1998) ‘Readings and Hearings in French Criminal Justice: Five cases in the Tribunal Correctionnel’, American Journal of Comparative Law, 46, 757–83.

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International & Comparative Law Quarterly
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