Concluding Comments

Centering on the criminal justice systems of England and Wales and France, this book has analyzed recent changes in criminal justice policy trends and process values as they have played out across the core functions of prosecution and defense, as well as how systems malfunction and seek to correct themselves in different ways. Both jurisdictions face common challenges, such as the changing terrorist threat, the constraints of public sector austerity, and the need to adapt to pan-European measures and standards of fair trial. The ways in which, through their criminal law and procedure, they resist, respond, or adapt to these challenges illuminate the legal and political values that motivate criminal justice in each jurisdiction. This in turn invites reflection on the nature and significance of the two contrasting procedural traditions within which they understand themselves to be located....

Perspectives on Adversarial and Inquisitorial Criminal Procedure

Analyzing the evolving nature of core features of adversarial and inquisitorial processes in an applied and dynamic way, this chapter examines the two traditions through a variety of lenses and contexts. Beginning with the organizing principles of both traditions, it examines how jurisdictions have adapted their procedures with the common ambition of avoiding a contested trial. Adopting an external standpoint, it then analyzes the adversarial tradition’s association with individual rights, fairness, and transparency, and its resulting appeal to systems seeking to move away from a more state-dominated process. It then examines the ways that different procedural values play out within the context of international criminal justice, concluding with an analysis of contemporary pan-European influences on criminal procedure and the challenges in developing common criminal justice values and standards of fair trial through the ECtHR and the EU that often run counter to domestic trends.

The Criminal Cases Review Commission, the Applicant, and Her Lawyer

This chapter evaluates the uncertain place allotted to the defense within the inquisitorial CCRC review process, comparing this with the French instruction model and the broader principle of contradictoire. Where a case is referred back to the appeal court, the results of the case review are likely to have a significant impact on the nature of the defense case that is presented, and so ultimately, on the success of the appeal. Equally, the way in which the defense chooses to argue the case may build on the evidence uncovered by the commission, or it may misunderstand, or fail to argue, some grounds identified by the CCRC as going to the safety of the conviction. In this way, the intersection of adversarial and inquisitorial roles and procedures disrupts traditional procedural models, creating an inherent tension between the commission and defense lawyer functions, which sometimes conflict and at other times coincide.

Mixing Inquisitorial Functions within an Adversarial Process

This chapter centers on the tensions produced by the novel mixing of procedural traditions in the creation of the Criminal Cases Review Commission (CCRC): on the function of the commission as an inquisitorial review body, its interactions with legal actors and processes operating within the adversarial tradition, and how this illuminates the nature of our attachment to values such as truth, innocence, or justice as they operate within different procedural frameworks. Following a series of high-profile miscarriages of justice in the 1980s and 1990s, in which the adversarial process failed those it accused, the CCRC was tasked with reviewing cases for possible referral to the appeal court. This chapter examines the operation of the commission, the procedural lens through which it structures its review, and how this impacts on its understanding of what constitutes a real possibility that a conviction will be overturned, such that it will refer a case to the appeal court.

The Demise of Procedural Fairness

Charting trends in legislation, case law, and commissions of enquiry, this chapter considers the ways in which values of procedural fairness were strengthened in the criminal justice traditions of England and Wales and of France during the late twentieth century, and how these have subsequently been eclipsed by broader concerns with managerialism, efficiency, and crime control, as both countries move inexorably toward what might be described as an administrative system of criminal justice. Manifested through a variety of mechanisms for the avoidance of trial, the avoidance even of a full investigation, and the rapid disposal of cases, the roles of criminal justice actors are changing. Power and responsibility are shifting away from the judiciary toward the prosecution, the defense is co-opted into the managerialist objectives of the criminal process, and a version of efficiency is elevated as the overriding objective, while the values of procedural fairness disappear from view.

The Changing Prosecution Role

This chapter analyzes the drivers that are reshaping the prosecution service in both jurisdictions, which rest neither on adversarial nor inquisitorial procedural values, nor on broader concerns with fair trial, but on the processing of large numbers of cases with the minimum of cost and delay in order to demonstrate the effectiveness of criminal justice responses to crime. The center of gravity has shifted further toward the pretrial phase, drawing power away from the judiciary toward the public prosecutor and, in some instances, the police. This has been achieved in part through the routine delegation of work and a process of deprofessionalization, in which procedures for the treatment of cases are standardized and simplified, becoming almost automatic. This recasting of the prosecution function has implications for the independence of the prosecutor, for her autonomy and professional standing, and for the balance of legal and constitutional power in the criminal process.

Miscarriages of Justice and Procedural Change

This chapter introduces some of the common themes in miscarriages of justice across jurisdictions, before going on to focus on responses to the Outreau affair, the investigation of an alleged pedophile ring in northern France in which the weaknesses of the instruction process, ultimately, led to the collapse of the case and to three separate commissions of enquiry. The high-profile Outreau affair became a touchstone for the weaknesses of the French system, demonstrating the dangers of concentrating power in the hands of magistrats who, despite their constitutional independence and truth-seeking ideology, routinely failed to challenge or interrogate the perspectives of fellow judges or prosecutors, replicating the tunnel vision of the police investigation and undercutting the role of the defense. Reforms tempered but did not challenge the inquisitorial ideal, extending the principle of contradictoire. Ultimately, however, despite public attention and three commissions of enquiry, many proposals were never implemented.

European Influences on the Pretrial Defense Role

This chapter examines the changing ways in which the role of the criminal defense lawyer is structured and understood within different procedural traditions, and the challenges posed to individual legal cultures and practices by the growing influence of the ECtHR and the EU. It focuses on the earliest stages of the pretrial defense role, in part because of the determinative importance for the case of the initial police detention and questioning of the suspect, but also because this is where some of the most radical challenges to procedural values and shifts in role expectations have taken place, especially within inquisitorial-type procedures whose legal tradition centers on a model of judicial investigation rather than party-based argument. Pan-European measures and court decisions have sought to cut through procedural differences, focusing instead on effective defense as a fundamental part of the right to a fair trial and an essential component of the privilege against self-incrimination.

Custodial Legal Advice

This chapter considers the ways in which transnational procedural standards for the provision of custodial legal advice have been received in different jurisdictions by the courts, by review bodies, and on the ground, exploring the extent to which we are seeing movement toward a pan-European model of custodial defense, or whether countervailing factors militate against harmonization beyond a set of common basic thresholds, thereby undermining rights that are effective in practice. Evidence obtained through custodial interrogation is central to case disposition, with or without trial, and so procedural protections traditionally reserved for court are increasingly required during this pretrial phase if the accused is to be dealt with according to the standards of a fair trial. This necessitates a cultural as well as legal shift in how states understand the adjudicatory phase of criminal proceedings and its backward reach to include significant aspects of the investigation.

The Role and Status of the Prosecutor

By situating the crown prosecutor and the French procureur within the broader legal cultural traditions in which they operate, this chapter compares the nature of the prosecutor’s role and functions in the two jurisdictions, their relationship with the investigation, and the different ways in which prosecutors’ independence and accountability are structured and understood. Prosecutors play a pivotal role at the heart of the criminal justice process, preparing and prosecuting criminal matters, managing the flux of cases, and, increasingly, disposing of cases through alternatives to prosecution. The different status of prosecutors in France and England and Wales and their relationship to judicial and political authority are important factors in how we understand and evaluate the functions of the prosecutor, the rights and responsibilities of other legal actors, and the legitimacy of the expanding prosecution role.