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In this paper I wish to outline the ways in which the role of the defence lawyer in French pre-trial criminal procedure is constructed and the factors which have ...

Constructing the pre-trial role of the defence in French criminal procedure: An adversarial outsider in an inquisitorial process? Jacqueline Hodgson In this paper I wish to outline the ways in which the role of the defence lawyer in French pre-trial criminal procedure is constructed and the factors which have both influenced and constrained its recent evolution. Beginning with an examination of the changing ways in which the pre-trial defence role is characterised by the text of the law and the official discourse surrounding it, I then go on to provide an empirically based account1 of the ways in which the defence avocat2 is perceived and accommodated by the key legal actors, namely the police and the judicial officers charged with the supervision of criminal investigations. Understanding the pre-trial role of the defence: the centrality of judicial supervision Under the inquisitorial model of criminal justice, the case (and not the person) is investigated by a judicial enquirer charged with representing not the partisan interest of either prosecution or defence, but with the task of „searching for the truth‟. There is a strong emphasis on the pre-trial phase rather than the trial as the locus for resolving factual and evidential issues. Traditionally, such an enquiry was written, conducted in secret and the parties were not afforded any opportunity to present their case3. Although somewhat modified in form, the principle of judicially supervised criminal investigations remains at the centre of the modern pre-trial phase in France: in a minority of instances the case is investigated by the juge d’instruction4 and in the majority, by the police under the supervision and direction of the public prosecutor, the procureur5. As magistrats6, both share a common vocational training and in contrast to the defence lawyer who represents only the interests of the accused, the procureur and juge d’instruction are charged with acting in the wider public interest in all aspects of their

1 I am grateful to the British Academy and the Nuffield Foundation for supporting early fieldwork

(1993-4) and to the Leverhulme Trust for funding the subsequent larger study (1997-9). A total of 18 months observational fieldwork was conducted by myself and two French colleagues (to whom I am greatly indebted), Ms Brigitte Perroud and Ms Geneviève Rich, in 5 sites (A-E) in the offices of procureurs, juges d’instruction and police. We also conducted 20 interviews (primarily with magistrats) and received 37 questionnaire responses from procureurs and 12 from senior police officers. 2 The defence lawyer as an avocat belongs to a different professional body from the public prosecutor, juge d’instruction and trial judge, all of whom are magistrats. 3 See e.g. the original 1808 code d’instruction criminelle. 4 This requires the procureur to open an information, setting out the offence to be investigated and any evidence so far obtained. It may be opened with or without a named suspect. The procedure is mandatory for the most serious offences, crimes, and discretionary for lesser offences, délits and contraventions. In 1999, 18% of cases handled by the juge d’instruction were crimes and 81% délits. 5 Although a public prosecutor, the procureur (often referred to by the collective term parquet) is also a magistrat and so enjoys a judicial status. 6 The magistrature is the collective term for the career trained judiciary which includes the procureur, the juge d’instruction and the trial judge. Whilst the three functions are quite separate, the common training enables movement between them.

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work. In this way, as neutral and objective judicial7 officers, they are accountable for all aspects of the investigation. As a consequence, the defence lawyer performs a diminished role compared to her counterpart in an adversarial process: it is the judicial supervisor who is responsible for gathering both inculpatory and exculpatory evidence and for ensuring the legality of the investigation, including proper respect for the rights of the defence8. But this does not mean that defence lawyers have no part to play in French pre-trial criminal procedure. In the 8% of cases investigated by the juge d’instruction, the defence and the victim9 are allowed access to the case dossier during the investigation, as well as being able to request that particular investigatory acts be carried out. In practice, most of the enquiries are undertaken by the police through the delegated powers of the commission rogatoire 10, but significantly, the questioning of the accused must be conducted by the juge d’instruction herself. This will take place, not in the sparse and hostile environment of the police interrogation room, but in the more congenial surroundings of the juge‟s office where a contemporaneous record of the interview is made. Since 1897, in response to increasing concerns over the enormity of the power of the juge d’instruction, power exercised behind a shield of secrecy, the defence lawyer has been present during this judicial questioning of her client and permitted to consult the case dossier beforehand11. This marked a significant change to the procedure originally laid down in the 1808 code d’instruction criminelle and the reform was widely criticised at the time as undermining the nature of the inquisitorial process and frustrating the juge in her search for the truth: “by obliging the juge to warn the accused at his first formal questioning that he is free to say nothing, by imposing the presence of a lawyer at all following interrogations, by, above all, constraining the juge to give the case file to the defence lawyer the day before every interrogation, this law paralyses the action of the judge who can barely hope, even himself, to discover the truth.” 12 7 The judicial function in an adversarial process tends to be associated with the adjudication of issues

and is generally separate from the investigative phase. It is for this reason that some Anglo-American commentators (most famously, Goldstein and Marcus in their account of the „myth‟ of judicial supervision) have dismissed as illusory the judicial nature of supervision and of that carried out by the procureur in particular. 8 This was described by the recent Truche Commission 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.” Rapport 1997:60. 9 The victim is treated as a party to the case in France. She may be represented by a lawyer and make a claim for compensation which will be dealt with by the criminal court. 10 This enables the juge d’instruction to delegate formally specific investigatory acts. e.g. she may require a telephone tap to be put in place and a report with full transcripts to be produced in 6 weeks‟ time, or, for the police to investigate the whereabouts of a named individual. 11 The conduct of the investigation by the juge d’instruction was likened to a “duel between the juge and the accused, a duel without witnesses and with weapons of which the juge alone had the mastery” (H. Halton Étude de la procédure criminelle p.69, cited by Sallas (1991) Note sur l’histoire de l’instruction préparatoire en France, Annexe 2, La mise en état des affaires pénales p.248). There had been proposals for a more adversarial procedure to be adopted, but these were rejected out of hand by the high ranking judiciary and by Parliament. See Sallas 1991:248. 12 M. Lemonde, Police et Justice p71-72, cited by D. Sallas 1991:249.

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In the vast majority of cases13, however, judicial supervision takes a different and more distant form, with the procureur rather than the juge d’instruction, responsible for the direction of the investigation, including the detention of suspects in police custody, the garde à vue14. The nature of this supervision is characterised in the legal texts in terms which are quite different from the process of instruction. In contrast to the juge d’instruction who is required to conduct (procéder à) the investigation in person, or, if necessary to assign discrete portions to named police officers through the commission rogatoire, the procureur‟s responsibility is defined more broadly: she is required to oversee (contrôler) the detention of suspects and to direct (diriger) the activity of the police. Whilst she must be informed of the suspect‟s detention at the start of the custody period, there is no stipulation that she conduct any investigation, including the questioning of the suspect, in person. And whereas instruction is characterised as a judicially instigated inquiry (albeit carried out in large part by the police with accountability to the juge d’instruction), the procureur‟s responsibility is for the supervision of police initiated investigations. Yet, despite the well established defence rights enjoyed by those subject to judicial questioning during instruction, where the suspect is arguably far less vulnerable, it was not until 1993 that suspects detained and questioned by the police were afforded the right to custodial legal advice (Art 63-4 CPP15). The reform16 was modest in comparison to that of 1897 - the suspect was permitted a 30 minute consultation with her lawyer, 20 hours after the start of detention17 and the lawyer was not allowed to be present during interrogation nor to have access to the dossier - yet, it prompted similar outrage from the magistrature and the police, with public demonstrations and letters to the press. And just as 100 years before, the intrusion of the defence lawyer was regarded as undermining the effectiveness of judicial supervision and as distorting the inquisitorial structure of criminal procedure through the unwelcome introduction of an adversarial element. Further reforms of the garde à vue procedure were legislated in June 2000 18, obliging the police for the first time to tell the suspect of her right to silence (Art 63-1), as well as 13 The number of cases handled by the juge d’instruction has declined steadily over the last 150 years,

with a corresponding rise in the number of cases investigated under the direction of the procureur (Lévy 1993). 14 The period of police detention, literally meaning „kept in view‟. 15 Code de procédure pénale. All articles cited relate to this code. 16 The 1993 legislation also provided additional safeguards regulating the detention of suspects. It stipulated that detention is initially for a 24 hour period, authorised by either the procureur, or where detention takes place in the course of an instruction, the juge d’instruction (Art 63, 77). On the same authority, detention may be extended for a further 24 hours, or, in cases of suspected terrorism, drugs trafficking or organised crime, for a further 36 hours. A custody record must be kept, detailing the time in which the person is detained, as well as interrogation, rest and meal times (Art 64) and the suspect may consult with a lawyer and a doctor and may have a friend or relative informed of her detention (Art 63-4; 63-3; 63-2). 17 Plans to allow the defence lawyer access to the suspect from the start of garde à vue, due to be implemented 6 months later, were immediately reversed with the arrival of a new right wing government. 18 The Truche Commission (whose Report preceded and influenced the 2000 reform) considered it essential that witness confrontations with, and police interrogations of, the suspect should be tape recorded, but this recommendation was not taken up by the legislature. Although interestingly, the

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the nature of the offence for which she is being held and the date when it was committed. The suspect‟s access to custodial legal advice was also improved. She may now consult with her lawyer immediately upon detention and then again after 20 hours and if detention is extended, again after 36 hours. The impact of this advice, however, remains limited. Consultation may last no more than 30 minutes and the lawyer remains barred from the interrogation of the suspect; and although she must now be told of the date and nature of the offence, the lawyer is still not entitled to be informed of the extent of the evidence against her client. Although limited in scope, the reforms of the last decade are nevertheless interesting in placing due process protections on a statutory footing. In a legal culture which has yet to recognise the psychology of false confessions19 and a structure of supervision which depends upon the police as trusted allies in the process of investigation20, the strengthening of the rights of the defence has, until recently, been regarded both as unnecessary and inappropriate. The French criminal process is, and strives to remain, largely inquisitorial. Historically, it has been characterised by a crime control approach, where the freedom of the individual is considered to be best protected through the provision of broad legal powers for the repression of crime21. The guiding objective at all stages of the process is the search for the truth and defence rights have been seen as antagonistic to this search and as benefiting only the accused (rather than contributing to the overall integrity of the process). And despite the European Convention on Human Rights (ECHR) influence on recent reforms22, guarantees of equality of arms and defence rights continue to be viewed by many as adversarial concepts23 and therefore to be resisted24. This has created a tension between, on the one hand, ensuring that France

interrogation of juveniles is to be video taped, with the possibility of extending this safeguard to all suspects after a 12 month review. 19 “Pressure to confess, yes, that exists, of course, because that is linked to the very nature of interrogation...but then, this pressure to confess, that also allows the investigation to progress.” [A6]. See further Hodgson 2001:353-5. 20 Allies upon whom, significantly, the procureur is structurally dependent. The double hierarchy of the police, on the other hand, means that they are accountable to the parquet only in criminal matters. When asked if this created tensions, one high ranking procureur replied: “You only need to look at the tensions created when, for example, one talks at the national level of creating a criminal police investigation bureau under the Minister of Justice, the creation of which all the police unions are radically opposed to. Why? Because...it is clear...that in their organisation, in their ethos, in their culture, what counts for them, because it is their hierarchy, because it is their career, because it is the organisation of their daily work, what counts above all, is not the Minister of Justice, but the Minister of the Interior.” [A6] 21 See e.g. Vroom 1988. 22 This has been a slow process. For example, at the time that the 1993 reform was being debated in Parliament, it was left to the French constitutional court, le Conseil Constitutionnel, to declare unconstitutional planned legislative reform to deny legal counsel to those held in police custody for terrorism or drugs trafficking matters, saying that the principal of equality of those before the law was broken. Similarly the holding of persons under the age of thirteen in police custody was condemned. 23 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 (01/01/01), “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.” 24 The work of „Anglomaniacs‟ as one juge d’instruction in area F put it. See also the response to the reports of the Delmas-Mary Commission (1989; 1990) which preceded the 1993 reform, which, in

complies fully with ECHR requirements and on the other, remaining faithful to its inquisitorial roots. As the June 2000 reforms were debated, the then Minister of Justice, Elisabeth Guigou, used every opportunity to affirm her opposition to all things adversarial. “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.25” This tension appears to have been resolved through a strategy of minimal adjustment, incorporating European Convention guarantees in a way which does not challenge the essential structure of French criminal procedure26. This has served to constrain the development of the defence role, as judicial supervision continues to be characterised as the success story of inquisitorial procedure and the magistrat the principal guarantor both of the integrity of the investigation and of proper respect for the rights and liberties of the suspect. Thus, those held in police custody have prompt access to a defence adviser, but the impact of this safeguard is severely limited by the short time allowed for consultation and the exclusion of the defence lawyer from the police interrogation. In addition, whilst the police are now required to inform the suspect at the start of detention of her right to silence, officers are instructed27 that they should not remind the accused of this right at the start of any interrogation, as the law does not require it and it may be seen to encourage the accused not to answer questions. The suspect is told of her right, but there is a concern that she should not exercise it. Judicial supervision remains the primary defining feature of French criminal justice. Within a largely inquisitorial process28, custodial legal advice occupies a residual space, subsidiary to the authority of the magistrat. Elevating the pre-trial role of the defence lawyer would undermine the structure and ideology of judicial supervision, where only the supervisor, as a magistrat, can be trusted to guarantee the respect of due process rights without compromising the public interest in uncovering the truth. Making room for the defence lawyer: the police and magistrats Through our observations, interviews and questionnaire responses, it was clear that the retention of judicial supervision as the primary mode of regulating the police investigation is strongly supported both by magistrats and the police. Despite the fact that this is effected with varying degrees of distance, with some procureurs discussing introducing „adversarial‟ elements rather than strengthening the existing inquisitorial procedure, was seen by many as going in the wrong direction - e.g. Sauvon 1990; Waquet 1990; Gendrel 1992. 25 Address to the Sénat June 1999. 26 See further Hodgson “Suspects, Defendants and Victims in the French Criminal Process: the Context of Recent Reform”; Hodgson 2001a. 27 By the official Ministry of Justice circular (04/12/00) accompanying the legislation. 28 The term inquisitorial is problematic. French commentators define their own criminal procedure as „mixed‟, given the opportunities for open debate and the fact that the process is no longer totally closed and secret. Just as the criminal process in England and Wales rarely reaches its adversarial potential, it is the historical roots of the process which continue to define how it is regarded, particularly by those outside it. See also Hodgson 2000.

evidence and interrogation strategies with the police over the telephone and others having no involvement until the close of garde à vue29, both parties seem content with the degree of supervision which the current structure affords. The presence of the defence lawyer, in contrast, is universally viewed with suspicion: the adversarial outsider in an inquisitorial process. Her participation is resisted as likely to undermine the enquiry and to distort the truth finding process. In many ways this is unsurprising, given the very negative way in which, historically, defence lawyers have been regarded even in England and Wales, where they could properly be expected to play an adversarial role. Transposed through police occupational culture, they have been caricatured as „crooked lawyers‟ inventing „off the peg‟ defences, prepared to say or do anything for the right fee - despite the evidence of empirical research, Royal Commissions and miscarriages of justice, all of which underline the inadequacy of defence provision and the failure of lawyers in many instances to adopt a sufficiently adversarial posture30. For the French police too, the defence lawyer is frequently portrayed as tending towards corruption. “A lawyer lives from his clients and in the past, we have often observed that the deontology of the lawyer comes after his own interests and those of his client. [There would be a] risk of accomplices fleeing, of searches rendered useless after friends had been informed” [Questionnaire respondent, commenting on the proposal that lawyers gain access to their clients at the start of police detention]. “Some lawyers don‟t want to be searched. They are searched when they go to prison, but they don‟t want to be searched by the police...There are a minority of bad lawyers who will alert the family and friends. I have proof that has happened.” [Senior police officer, area C]31 “We don‟t like lawyers, because they are hooligans too. A lawyer in Paris stole a piece of evidence from the file. He was paid 33,000 francs to do that. Some people pay each month so that when they are in trouble and need a lawyer...” [Police officer, area C] In contrast to the ideal of a single judicial investigator, a second general objection to the development of the defence role is the assertion that it promotes inequality of treatment32 . In particular, the introduction of custodial defence advice was frequently described to us as a means by which the wealthy (politicians, business people and organised criminals) could buy themselves an unfair advantage over the ordinary citizen: “To systematically have lawyers present during the garde à vue is to privilege the most intelligent and the most wealthy criminals. If the Mafia have the chance to have a lawyer during garde à vue, they will get one immediately and he will be the best, because he will be paid...On the other hand, the poor boy who has never been in trouble before will ask for a lawyer immediately - will he come?

29 See further Hodgson 2001; Hodgson “Hierarchy, Bureaucracy and Ideology in French Criminal

Justice: Some Empirical Observations” 30 See e.g. McConville & Hodgson 1993; McConville et al 1994; Belloni & Hodgson pp.151-2; 180. 31 Fieldwork observations are referenced by the status of the person and the area. Interviews are referenced by area and each interviewee is also allocated a number. 32 See e.g. Mme Guigou‟s address to the Sénat in June 1999, quoted above.

Not necessarily. If he comes, will he have the necessary ability? By no means sure.” [D3]33 “The lawyer, he works as a liar, to see how far he can distort the law...The latest problem we have is the criminality of politicians and public figures...Those who make the law protect themselves...These „Anglomaniacs‟ claim that equality of objectives is the same as equality of arms. But lawyers and judges are not the same. The lawyer wants to acquit the person who pays him. The judge wants to deliver justice to protect society.” [Juge d’instruction, area F] “All the changes in terms of rights for the suspect are a cover for manipulating the system to the advantage of the few - the elite and the well-to-do.” [Police officer, area A] “[The introduction of lawyers at the police station] is done for 2 reasons. To protect criminals and to help lawyers earn more money!...They will always warn the other people that we are looking for, or at least the family...Those who have more money can get a better lawyer and be better protected.” [Police officer, area C] This view was also evident in both the procureur and police questionnaire responses. When asked about the specific role of the lawyer during the garde à vue, there was an interesting distinction drawn between those named by the suspect and those assigned as duty lawyers. Whilst 83% of police respondents said that duty lawyers would rarely or never be there to prepare the defence, one third said that named lawyers would always or often do this and a further third considered that this would sometimes be the case. Of procureur respondents, three quarters considered that named lawyers would always or often engage in defence preparation, but only one quarter in relation to duty lawyers. Similarly, duty lawyers were thought less likely than named avocats to check the conditions of detention and more likely to be there simply to fulfil a legal requirement. However, the status of the defence, in both jurisdictions, is more complex than the simple antithesis to the police investigation. Just as the police in England and Wales are no longer resistant to the presence of defence lawyers during interrogation, but recognise the legitimating function which they frequently serve, so too in France the impact of custodial legal advice has been largely overestimated34. In the same way that the lawyer‟s presence during instruction is now accepted as unproblematic and in many instances is welcomed as a useful procedural safeguard, initial fears regarding her presence during the garde à vue have also been quelled. For the procureur, whose supervisory role requires her to keep one eye on the legal procedural requirements of the 33 See above, n.31, re referencing quotations. 34 One officer told le Monde (13/02/01) “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.”. Similarly, the new obligation upon the police to inform the suspect of her right to silence was criticised as likely to frustrate investigations (see e.g. Le Figaro 01/01/01). Initial reports suggest that this has not been the case. Silence is little used and it has not affected the nature or quality of police investigations. (Le monde 16/06/01; Collomp 2001). According to a report from Paris, those suspects who insist on being silent are systematically sent to the procureur, where they run the risk of custody, rather than being released on bail for a later court date. See Le Monde 13/02/01.

court, the suspect‟s access to a defence lawyer provides an additional guarantee, serving to demonstrate at trial that the garde à vue has been properly conducted35. Prior to the 2000 reforms most procureurs did not consider that legal advice posed any significant threat in view of the fact that it was limited to a 30 minute consultation after the suspect had already been detained for 20 hours and interrogated one or more times. The provision of legal advice satisfied the rhetoric of defence rights whilst in practice serving to legitimate the garde à vue procedure for which the procureur is responsible. As one juge d’instruction explained: “[Having a lawyer during the first interrogation by the juge d’instruction] reinforces the defence, but at the same time, reinforces the word of the magistrat as it makes it more difficult for things to be denied later and easier to prove that nothing undue happened. For the most difficult cases, the 3% of cases, it is very important to have a lawyer. It has been the same for the police with the lawyer at the 20th hour. It was against their culture, but now, on the contrary, it provides an additional guarantee to the process.” [Juge d’instruction, area D] In this very limited context, many procureurs experienced the defence lawyer as a healthy counter reflex to their own work, acting as an additional check that procedural rights are complied with. “[The role of the defence] hinders us, but that‟s good. Everything which goes against our natural tendency is a good thing. It challenges us.” [D2] For the police too, whilst generally disliking them, the presence of the defence lawyer during the garde à vue was largely of no interest36. It was regarded as a procedural requirement which was largely unnecessary and at times, inconvenient to administer. Like the procureur, the police also considered it a means of affirming their actions. “This is not a time set aside specifically for preparing the defence but for the lawyer to have a first look at the events and to check the conditions of detention, to protect the suspect from abuse, but essentially, to protect the police from false accusations. There is no longer any violence - in 1970, yes - but not now.” [Police officer, area D]. However, at the suggestion of introducing a more meaningful defence role, of allowing defence lawyers access to the dossier of evidence or permitting them earlier or more sustained access to their clients, the tone of both police and procureurs changed markedly37.

35 Karpik (1999:146-8) describes the central role which, historically, the independent bar has played in

guaranteeing the independence of the judiciary from the State. 36 83% of our questionnaire respondents described it in this way. Two thirds said that it was also inconvenient and bothersome. 37 In our questionnaires, 84% of procureurs and 100% of police thought that the lawyer should not have access to the suspect at the start of the garde à vue; 89% of procureurs and 100% of police thought that access to the dossier should continue to be denied.

“That does not correspond to the French inquisitorial system, but to the AngloSaxon adversarial system which makes money out of wealthy defendants.” [Questionnaire respondent]. “So, supervising or verifying confessions...What does that imply? That implies an a priori mistrust of everything that the police do, because the only way to effectively check on confessions and statements, is to have a third party present the whole time, whether that be a magistrat (and at that precise moment, what would her role be in relation to the interrogating officer?) or whether it be a lawyer, guaranteeing the rights of the defence; he would be present during the whole of the questioning. That really is not our system at all...” [A6] The police, for their part, resented any additional check 38 which might be made on them, claiming that it would usurp the proper role of the parquet. “Only the parquet should be able to check on the dossier of evidence and have access to it. Only the parquet should have access to the suspect if necessary.” [Questionnaire respondent] “Supervision of the garde à vue is the job of the parquet and not of the lawyer.” [Questionnaire respondent] The principle of affording the accused some limited defence rights was acceptable, provided that it did not interfere with the current structure and balance of power. For the procureur, the proper pre-trial role of the defence is characterised not in adversarial terms, but those of reinforcing or supporting her own role in ensuring the legality of the investigation and detention: “In France, the lawyer is not there to advise the person, but to signal any problems in the conditions of the garde à vue; not so much to provide legal advice as moral support.” [D3] Any suggestion of a pre-trial role which went beyond the scope of activity which would be appropriate for the parquet herself and entered the realm of active defence, was perceived in very negative terms as interfering with the „effectiveness of the investigation‟. For example, one respondent began by describing the defence role in strong and positive terms: “The defence role is indispensable. There is no democracy without a defence...a strong parquet has nothing to fear from a strong defence...a government in a democratic country wants to have a structured opposition...It‟s necessary...this counter-power.” [E4] But when questioned more closely on what „power‟ the defence might have, his tone changed totally:

38 Interestingly, one police questionnaire respondent pointed out that it is not the role of the defence

lawyer, but of the parquet, to „check‟ the conditions of the garde à vue. The lawyer may simply „observe‟ or „note‟ them.

“Regarding the presence of a defence lawyer during the garde à vue...I am fiercely opposed to it because, firstly, I think that it is a fundamentally inegalitarian measure. Furthermore, it can be part of a gimmick...Now, it is at the twentieth hour; tomorrow from the beginning. What will be the role of the lawyer from the start of the garde à vue? What is going to be his role of assistance? Either, he is going to be useless because by definition he does not know what it is about, or, it is going to be to say, „say this‟ or „say nothing‟. That is no longer a job of assisting, it is a job of hindering.” [E4]. Despite the increasing reference to ECHR concepts of defence rights and equality of arms, these notions continue to be regarded in negative terms. Any pre-trial engagement on the part of the defence is considered inappropriate and unfair. Time and again, it is the adversarial character of the defence lawyer which makes her so objectionable, in particular when contrasted with the alleged „public interest‟ orientation of the magistrat: “I do not expect [lawyers] to participate in the search for the truth, because the truth can be terrible for their client. They are not paid to condemn their client. It is the lawyer‟s role to search for what is most useful to his client, against the interests of society, the interests which the procureur protects.” [E4] Thus, to positively encourage the exercise of rights rather than simply informing the suspect of their existence was criticised, as was the proactive assembling of the defence case or the adoption of a posture benefiting the suspect rather than the inquiry. As one procureur in area D explained: procureur: “I would not be happy with [the lawyer‟s] presence in more serious matters. They will tell the suspect to say nothing because people will feel better if they say nothing, than if they confess.” Researcher: “But people have the right to remain silent?” procureur: “Why yes! Of course!” These accounts of the proper role of the defence are phrased in the neutral language of the professional ideology of the magistrat, appealing to concerns of „public interest‟ and the need to avoid any hindrance to the conduct of an „effective investigation‟. Yet, the open hostility to any active defence participation is also indicative of the contradiction between the interests which the procureur is required to protect in theory (those of the victim and the suspect; the search for the truth and the rights of the defence) and her preoccupation in practice, with obtaining a confession in her search for the „truth‟. When asked about the possibility of the defence lawyer being present during the police interrogation of the suspect, procureurs responded in the following terms: “It‟s true that the garde à vue exerts a certain psychological pressure and for some people that pressure may lead to slightly ill-considered admissions ... But that is not the point of view of a procureur - there are no innocents in garde à vue...(This, he explained, was why cases were frequently kept for up to 5 days before opening an information:)...The reason it‟s 5 days is because that is the limit for flagrance. That way, the police still enjoy wide powers and we can carry out the investigation ... we want to get the culprit ... The juge d’instruction is not going to interview the suspect 3 or 4 times, sit across the table from him and say „Are you going to admit this?‟ The police station is a hostile environment. It‟s unpleasant and the police will use

more pressure. And that does not make it unlawful - sometimes you need some pressure.” [D3] “There are 2 things which do not seem to me to go in the same direction. On the one hand, the need to protect the rights of the defence of the accused, his access to the dossier. On the other hand, the effectiveness of the police investigation. Sometimes, the measures taken [for the defence] can seem to go against this concern with effectiveness. For example, I am totally hostile to the lawyer being present at the start of the garde à vue...a lawyer who tells his client „you will be in garde à vue for 24 or 48 hours, in your own interest, try and say nothing‟ from the start, that defeats the whole object and the effectiveness of the garde à vue is no longer important...We know full well that if someone does not admit their guilt in garde à vue, they never will do after that.” [E3] “Unless they are caught red-handed, people deny everything, even in the face of witnesses and evidence. They hide behind the presumption of innocence more and more. If a man does not speak, it is justifiable to place him in custody. The search for the truth is fairly easy, but they just refuse to confess.” [Juge d’instruction area F] The extended presence of a lawyer was disliked because of the constraints it placed upon police methods of investigation and interrogation and the pressures which were considered necessary to „get to the truth‟. Far from usurping the role of the parquet, the presence of the defence lawyer threatened to expose the weaknesses of judicial supervision and the nature of police practices which remain conveniently concealed39. For example, an officer in area C explained how he had falsely claimed to have a signed statement incriminating a suspect in order to make him confess: “If a lawyer had been there I couldn‟t have done that, „playing‟ with non-existent admissions. But you have to do that, to get to the truth. We don‟t have many resources. And the people who are here are not honest, are not responsible people. They wouldn‟t be at the police station if there wasn‟t some evidence against them...We just want to get to the truth.” The tape recording of police interrogations was opposed for the same reason, as one juge d’instruction in area C explained to us on hearing that this was standard procedure in England and Wales:

39 Note also the relatively high number of procureur questionnaire respondents (40%) who reported

suspecting that violence or excessive pressure had been used against the suspect during the garde à vue. See further Hodgson 2001:352-4. The recent report of the European Committee for the Prevention of Torture was highly critical of the conditions of police detention in France. As well as insanitary conditions and prisoners being provided with little or no food, they also found evidence of kicking and punching, overly tight handcuffs, people violently thrown to the floor and in particular, the maltreatment of foreigners. All of this is said to take place during interrogation and affected some 5% of those seen by police doctors. The anti-terrorist division came in for especial criticism. Two people detained in the prison hospital in Paris recounted their maltreatment. One had been allowed only 6 hours rest out of 60 hours of interrogations - allegations supported by the detention records. The other had been the subject of written instructions not to allow him any bed covers and to keep the light on in his cell. Le Monde 19/07/01.

“It‟s unbelievable! And to think that we might end up doing that here...You should just leave the police to do their job. When you‟re dealing with difficult people like drug addicts and hooligans, you need to put the pressure on. I don‟t mean hitting them, but you have to make them talk”. [JI, Area C] And an officer in area D expressed the same concern: “No, that‟s no good. You have to leave the police to do their job...If you think the guy did it, you try and get him to talk. You use blackmail, put the pressure on - it‟s not very moral, but they haven‟t got any morals either. If there was a witness, we certainly couldn‟t do that...In short, we need to be left to do our job, because these are not angels we are dealing with.” Conclusion Recent development of the pre-trial defence role has attempted to give greater effect to ECHR guarantees, without altering the fundamentally inquisitorial structure of the French criminal process. This has been achieved by assigning to the defence a minor role (thus satisfying the requirements of access) which largely replicates the legal procedural checks for which the procureur is responsible. Cast in these non-adversarial terms, the presence of the lawyer in the garde à vue is tolerated as an additional safeguard which, in many instances, adds legitimacy to the pre-trial investigation and the success of judicial supervision. Any expansion of custodial legal advice is resisted as an inappropriate distortion of the judicial search for the truth, privileging the interests of the accused over those of the victim and the public. Yet, paradoxically, unpicking the nature of this resistance illustrates the weaknesses in the current structure - the identification of the public interest with crime control and the strongly confession oriented character of the search for the truth. In opposing greater defence involvement the fragility of the magistrat‟s claims to neutrality are exposed: the investigation may be less „effective‟ because the police will be less able to apply pressure to the suspect; and the search for the „truth‟ will be compromised as suspects may be less willing to confess. Given that supervision is over the telephone and largely retrospective40, together with the absence of any outside observers or tape recording during interrogation, there would appear to be a quite legitimate role for the defence, ensuring the reliability of evidence produced during the relatively invisible garde à vue. Whilst this would necessarily result in the introduction of an adversarial element into the procedure, this has not proved problematic in other parts of the criminal process, where the lawyer‟s role has served to assist and complement, rather than to challenge, that of the magistrat. The presence of a lawyer need not undermine the current structure of accountability, but rather, could serve to strengthen the guarantees of judicial supervision which in many instances remain undelivered. This would go some way towards closing the gap between the theory of inquisitorial procedure and the practice of procureur supervision which, in many instances, leaves the suspect unprotected.


40 See e.g. the accounts provided in Hodgson 2001; Leigh & Zedner 1992.

Belloni, F., & Hodgson, J. (2000). Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain. Basingstoke, Hampshire: Macmillan. Collomp, J-P. (Inspecteur général des services judiciaires) (2001) Rapport de la mission sur l‟application de la loi du 15 juin 2000 relative au renforcement et protection de la présomption d‟innocence et des droits des victimes Ministère de la justice. Delmas-Marty, M. (chair) La commission justice pénale et droits de l‟homme (1991). La mise en état des affaires pénales. Paris: La Documentation Française. 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), 1-3. Goldstein, A., & Marcus, M. (1977). The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy and Germany. Yale Law Journal, 87, 240-283. Goldstein, A., & Marcus, M. (1978). Comment on 'Continental Criminal Procedure'. Yale Law Journal, 87(8), 1570-77. Hodgson, J. (2000). Comparing Legal Cultures: The Comparativist as Participant Observer. In D. Nelken (Eds.), Contrasting Criminal Justice Aldershot: Ashgate. Hodgson, J. (2001). The police, the prosecutor and the juge d'instruction: Judicial Supervision in France, Theory and Practice. British Journal of Criminology, 41(2), 342361. Hodgson, J. (2001a) Recent changes in French Criminal Justice: the ECHR and adversarialism. Legal Action Karpik, L. (1999). French Lawyers: A study in collective action 1274 to 1994 (Nora Scott, Trans.). Oxford: Clarendon Press. Leigh, L. H., & Zedner, L. (1992). A Report on the Administration of Criminal Justice in the Pre-Trial phase in France and Germany. London: HMSO. Levy, R. (1993). Police and the Judiciary in France since the nineteenth century. British Journal of criminology, 33(2), 167-186. McConville, M., & Hodgson, J. (1993). Custodial Legal Advice and the Right to Silence. London: HMSO. McConville, M.,Hodgson, J.,Bridges, L., & Pavlovic, A. (1994). Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain. Oxford: Clarendon Press. Sauron, J.-L. (1990). Les vertus de l'inquisitoire ou l'Etat au services des droits. Pouvoirs, PUF No55, 53-64. Truche, P. (chair) (1997). Rapport de la commission de réflexion sur la Justice. Paris: La documentation Française.

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), 487-507. 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, 518-525.