The Role of the Criminal Defence Lawyer in ... - SSRN papers

The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure Professor Dr Jacqueline Hodgson

1. Introduction The focus of this paper is on the rights of the defence during the pre-trial stage of criminal procedure. Although the trial is the public setting in which the case is determined, the character of the pre-trial process has a determinative influence upon the nature of the evidence presented at court and indeed, the decision whether or not a trial takes place at all. I would like to offer some observations on recent changes that have taken place in two quite different legal systems – that of France and of England and Wales. These are, of course, only two examples of systems rooted in inquisitorial and adversarial procedure respectively. They are not paradigms. Despite the tendency of many Anglo-American commentators to speak of „inquisitorial‟ or „continental‟ procedures as though they are homogenous, there are important differences between the French criminal process and that of say Germany or the Netherlands. Similarly, England and Wales, although sharing many procedural values with the USA, is also quite different from it in many respects. 1 In both jurisdictions, these changes are frequently characterised as indicative of the legal procedures becoming either more adversarial (France) or inquisitorial (England and Wales). Some go further still and suggest that legal procedures from different traditions are now converging. This runs the risk of oversimplifying the nature of the changes and can be unhelpful in informing and evaluating criminal justice reform. It might be argued that there is a degree of convergence in the sense that European legal systems are increasingly driven by the common themes of system efficiency and managerialism – there are growing numbers of cases to be disposed of with the same or fewer resources. 2 In this way, they may be seen to adopt modified versions of the procedures in place in neighbouring countries – for example, guilty plea procedures and forms of negotiated justice, or greater reliance upon written rather than oral evidence. However, this is not convergence in the sense that different jurisdictions are heading towards one common procedure. Rather, these separate legal systems remain on different tracks, albeit heading in broadly the same direction concerning some particular issues. 1

The lawyer, for example, is not permitted to answer on behalf of her client in England and Wales. 2 Reiß, P (1982) „Zur Entwicklung der Geschäftsbelastung in der ordentlichen Gerichtsbarkeit‟ Deutsche Richterzeitung 201, 464 argues that the number of legal staff has also increased in Germany. Therefore, the number of cases is not the only factor accounting for the development of informal means of handling and disposing of cases. (Cited by Regina Rauxloh (2006), unpublished PhD thesis, „Why Socialist Lawyers Don‟t Bargain: A historical and comparative study of plea bargaining in England and Wales, West Germany and the former GDR‟ University of Warwick, School of Law.)

Electronic copy available at: http://ssrn.com/abstract=1504000

In considering the role of the defence in adversarial and inquisitorial models of procedure we should perhaps note the difference between two issues contained within the defence function, which are separate, but closely related. Firstly, the place that is allotted to the accused or her lawyer (eg whether she may see the dossier of evidence; whether she may have her lawyer present whilst in police custody). Secondly, the role that she might properly be expected to play within the criminal process (eg does the suspect have access to the dossier, or have a lawyer present, in order to ensure that procedures are respected and followed? Or to enable her to begin actively engaging in her defence through investigation etc?) Each affects the other and is influenced by the nature of the criminal procedure and the role and status of other legal actors within it. Thus, in adversarial procedure, you might expect early defence rights and to be able to have full access to the suspect, as the defence plays a greater role in the investigation and presentation of evidence. In inquisitorial procedure, the defence role is characterised rather differently. It is an additional protection to that of judicial investigation and supervision and therefore it is a diminished and more „complementary‟ role. It concerns participation and dialogue rather than outright challenge. Adversarial defence It is impossible to imagine adversarial procedure without a defence role. It is an integral part of adversarial/accusatorial procedure, an essential element of its structure and functioning. The adversarial model is of two opposing and (theoretically) equal sides, accuser and accused, prosecution and defence. Within this, the defence function is crucial in the investigation, selection and presentation of the evidence on which the court will base its determination of guilt or innocence. Without it, there would be only half a case. As with most things, the practice of criminal justice is, of course, different from the theory. Nonetheless, those responsible for legal procedural change must be mindful of the wider tenets that underpin the criminal justice process concerned and so of the repercussions that reform in one part of the criminal process might have upon the functioning of the process as a whole. Legislative reform over the last decade appears to have ignored the theoretical framework of the criminal justice system in England and Wales, as well as that in Scotland. Instead, we see a range of changes that undercut the defence role and introduce a form of ill-thought out hybrid criminal procedure. For example, recent changes in Scotland encourage the prosecution and the defence to agree „uncontroversial‟ evidence. This includes not only expert evidence (such evidence has also been agreed by the parties in England and Wales for some time), but also that of other witnesses where one party believes that the other will not contest the facts. The judge may rule that the written statement may be admissible as evidence – even where the other party contests it. This is understood as a move to make the procedure more efficient, but also more inquisitorial. 3 However, attaching the label „inquisitorial‟ masks 3

See Duff, P (2004) 'Changing Conceptions of the Scottish Criminal Trial: The Duty to Agree Uncontroversial Evidence' in A Duff, L Farmer, S Marshall and V Tadros (ed), The Trial on trial (vol 1): Truth and Due Process (Hart Publishing, Oxford) 29-50.


the real dangers of such a reform within the context of the accusatorial Scottish trial. Whilst it is true that written evidence plays a greater role in a more inquisitorial procedure and the oral testing of evidence may be less central than in adversarial procedure, it must be remembered that this is because such a model rests on the notion that the evidence is the result of a judicial investigation (or at least a judicially supervised investigation). In Scotland, or in England and Wales, this is not the case – evidence is assembled by the interested parties. Similarly, as discussed below, the limited place allowed the defence lawyer in France is not necessarily a move towards a more adversarial procedure if the lawyer is not a party in the sense understood within an adversarial process, that is, she is not herself responsible for evidence gathering and selection. As well as ensuring that reform is theoretically coherent, it is also important to take account of existing legal and occupational cultures which can act as obstacles, undermining legal change. The difficulties encountered in the introduction of an adversarial procedure in 1988 in Italy illustrate the strength of this consideration. 4 As discussed below, French criminal defence lawyers also face new challenges in their role and existing legal and occupational cultures must adapt if the changes are to be effective. In England and Wales, suspects held for questioning by the police were given a statutory guarantee of access to legal advice under s58 Police and Criminal Evidence Act 1984 (PACE). Yet, when the change was implemented (a change for which lawyers had campaigned) the legal profession was unprepared. Solicitors soon realised that they could not be available to advise their clients twenty-four hours a day. In order to meet demand, they hired „clerks‟, non-legally qualified, untrained and often inexperienced individuals who attended suspects in police custody. As the wages of these „clerks‟ were considerably less than those of their employing solicitors (whilst the amount payable under legal aid was the same) this became a profitable as well as expedient arrangement and many firms routinely assigned police station work in this way. 5 In many parts of the country, agencies staffed by former police officers were set up to cover just this need. They were considered ideal as they were accustomed to the anti-social working hours and, of course, the working environment. The lack of legal expertise and the ideological shift required to move from police officer to defence, appeared not to trouble solicitors using these firms. 6 Police station advice was not considered a key opportunity to begin active defence preparation and even where solicitors did attend their clients in person, most did little more than offer moral support. 7 The result for suspects was not good. In 4

See eg Pizzi, W T and Montagna, M (2004) 'The Battle to Establish an Adversarial Trial System in Italy' (Winter) Michigan Journal of International Law 429-66. 5 See further McConville, M and Hodgson, J (1993) Custodial Legal Advice and the Right to Silence (HMSO, London); McConville, M, Hodgson, J, Bridges, L and Pavlovic, A (1994) Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Clarendon Press, Oxford). 6 It should be noted that such organisations were unable to claim legal aid payment direct. Only solicitors are eligible to receive legal aid – ironically, as a quality control assurance. 7 There were some notable exceptions who were both skilled and effective, concerned to safeguard the interests of their client. See McConville et al (1994) op. cit.


practice, they did not receive the legal advice and protection to which they were entitled, yet, the courts refused to exclude admissions obtained by the police in the presence of a legal adviser. 8 In this way, the balance of the adversarial process was upset – the suspect was credited with a benefit that she in fact never received. The Cardiff Three case (R v Paris, Abdullahi and Miller (1993) 97 Cr App R 99) is perhaps the most well-known example of this. The accused were convicted in 1990 of the murder of a Cardiff prostitute. Miller, one of the appellants, had his police interviews tape recorded and his solicitor present, yet these safeguards did nothing to deter the police from conducting an oppressive interrogation: 19 separate interviews continuing for more than 13 hours over a five day period were conducted, with the police constantly asserting Miller‟s guilt and offering no respite even when he was crying and sobbing for extended periods. It was only after Miller had denied involvement in the offence more than 300 times that he finally admitted to being at the scene. In the course of his questioning, Miller was “bullied and hectored” by the police and the Court of Appeal was “horrified” on hearing the tape recording of the interrogations, describing how officers: “were not questioning him so much as shouting at him what they wanted him to say. Short of physical violence it is hard to conceive of a more hostile and intimidating approach by officers to a suspect. It is impossible to convey on the printed page the pace, force and menace of the officer‟s delivery.” Yet, the court noted that through all of this, Miller‟s own solicitor did nothing, but sat “passively through this travesty of a [police] interview”. As a result of research carried out into the work of criminal defence lawyers, the position has now changed. Under a joint training initiative run by the Law Society (the professional body representing solicitors) and the Legal Services Commission (the body responsible for administering legal aid) solicitors and clerks must undergo an accreditation process which includes both written and practice-based assessments. Only accredited advisers can be paid to provide police station advice – financial regulation having succeeded where professional self-regulation had failed. The result is that the importance of professional and adversarial legal assistance at this early stage in the proceedings has now been made more explicit and the profession has developed a greater awareness of its own role. A number of other subsequent measures have undermined the defence role in England and Wales, pulling it away from the vigorous protection of the interests of the accused towards a more co-operative pre-trial model. The introduction in 1984 of legal advice for suspects in police custody was considered necessary in order to go some way towards counterbalancing the increased powers of the police which were legislated at the same time under PACE. Yet, access to legal advice is used over and again to justify measures that undermine the rights of the accused. In particular, since the Criminal Justice and Public Order Act 1994 (CJPOA), inferences may now be drawn from a suspect‟s silence

8

For further discussion of the courts‟ approach to legal advice at the police station and the exclusion of evidence see Hodgson, J (1992) 'Tipping the Scales of Justice: The Suspect's Right to Legal Advice' (December) Criminal Law Review 854 - 62.

at the police station. 9 Even though the suspect does not know the extent of the case against her, the relative formality of a tape-recorded interrogation and the presence of a lawyer have been used to justify legislation which effectively makes the suspect‟s initial responses or non-responses evidentially very significant. 10 This makes the job of the defence lawyer increasingly important, as the consequences of her advice take on a greater significance both at the time and at trial. The way in which the provisions have been interpreted by the appeal courts has also impacted upon the lawyer-client relationship, with lawyers adopting an increasingly defensive posture towards the advice that they give their clients held in police custody. In a series of decisions in which the lawyer‟s advice to her client was to remain silent, the courts have made it clear that this does not constitute a good reason for silence and so will not avoid the drawing of adverse inferences. In effect, this means that whilst legal advice is considered a “fundamental right” for the suspect, 11 a right which is guaranteed by statute, it is not necessarily reasonable for the lay client to rely upon this advice and indeed she can be penalised for so doing. The court has suggested that this does not disadvantage the accused, as it is always open to her to call the defence lawyer to give evidence as to why silence was advised. This would, of course, be a highly risky strategy, as once the client has waived professional privilege, the lawyer may be questioned about other aspects of the defence case in ways that may be very damaging to the interests of her client. In this way, the courts have interpreted s34 CJPOA in a way that undermines the confidentiality of the lawyer-client relationship, and which increasingly compels the suspect to co-operate in the construction of the case against her. Related to the issue of silence is that of disclosure. Although the ideal-type adversarial procedure is characterised by two equal parties, accuser and accused, modern criminal procedure is a long way from this. The victim plays no formal role in the process and the accusation is brought by the Crown Prosecution Service (CPS, representing the Crown) after an investigation by the police, whose powers and authority far exceed those of the accused. Disclosure of information gathered during the police investigation came to be seen as one way of redressing the obvious imbalance between the parties. 12 However, 9

This is, apparently, not incompatible with the privilege against self-incrimination – see the ECtHR case of Condron v UK (2000). 10 For example, note the language of the court in R v Hoare and Pierce [2005] 1 Cr App R 22 at para 53: „The whole basis of section 34 [Criminal Justice and Public Order Act 1994]…is an assumption that an innocent defendant – as distinct from one who is entitled to require the prosecution to prove its case – would give an early explanation to demonstrate his innocence. If such a defendant is advised by a solicitor to remain silent, why on earth should he do so unless because of circumstances of the sort aired by the Court in Roble [R v Roble [1997] Criminal Law Reports 449], Argent [R v Argent [1997] 2 Cr App R 27] and Howell [R v Howell [2005] 1 Cr App R 1] he might wrongly inculpate himself?‟ See further the discussion in Cape, E. (2006) 'Ethical Challenges for Criminal Defence Lawyers' Journal of Legal Ethics. 11 As described in the case of R v Samuel 2 WLR 920. 12 “A disadvantage of the adversarial system may be that the parties are not evenly matched in resources…But the inequality of resources is ameliorated by the obligation on

despite the lack of equality of arms between the defence and prosecution, and the miscarriages of justice in the 1980s and 1990s in which lack of full disclosure to the defence played an important part, the Criminal Procedure and Investigations Act 1996 shifted the disclosure burden away from the prosecution and towards the defence. Prosecution disclosure is now restricted and contingent upon the defence disclosing something of its case. Thus, for the first time, the legislation introduced a requirement that the defence disclose an outline of its case in order to trigger prosecution disclosure of material on which it does not intend to rely directly. Once the defence has made its disclosure, the CPS then determines what evidence they hold that might be of relevance to the defence. This is a strange „gatekeeping‟ role for the prosecution to play – determining which evidence might be relevant to the defence case. 13 The scheme has been widely criticised 14 but the changes introduced under the Criminal Justice Act 2003 seem likely to make matters worse. The defence is required to disclose yet more details of her case (the identities of witnesses, whether expert evidence has been commissioned, legal authorities and arguments to be relied upon at trial) whilst the obligations upon the prosecution are reduced. There is now a single point of disclosure before the defence reveal anything of their case and then a continuing duty to disclose. The prosecution must disclose any material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.” Without knowing the defence case, it might be open to the CPS to interpret this test narrowly – though given the criticisms of the inadequacy of prosecution disclosure under the 1996 legislation, it is hoped that this will not be the case. Furthermore, there are clear sanctions for non-disclosure on the part of the defence (in the form of adverse inferences), but none in respect of prosecution failures to disclose evidence.15 Most recently, the Criminal Procedure Rules 2005 require the defence as well as the prosecution to work towards the active “management” and “progression” of the case, once again defining the defence role in more co-operative terms. This is not consistent

the part of the prosecution to make available all material which may prove helpful to the defence.” McIlkenny and others (1991) 93 Cr App R 287 at p312. In fact, the defence was also entitled to inspect all material held by the prosecution, including that which did not at first sight appear to be helpful to the defence. It was in these bundles of statements that some of the most crucial information was found in a number of miscarriage of justice cases. 13 For further discussion see Belloni, F and Hodgson, J (2000) Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (Macmillan, Basingstoke), ch 7. 14 See eg Plotnikoff, J and Woolfson, R (2001) A Fair Balance? Evaluation of the Operation of Disclosure Law (Home Office, London); Crown Prosecution Service Inspectorate, (2000) Report of the Thematic Review of the Disclosure of Unused Material (HMCPSI); Auld, L J (2001) Review of the Criminal Courts of England and Wales (The Stationery Office, London. Also Leng, R and Taylor, R (1996) Blackstone's Guide to the Criminal procedure and Investigations Act 1996 (Blackstone Press, London) 15 See further Taylor, R, Wasik, M and Leng, R (2004) Blackstone's Guide to the Criminal Justice Act 2003 (Oxford University Press, Oxford)

with the classic definition of the defence role as set out in Rondel v Worsley [1969] A AC 191 that “the role of the defence lawyer is to promote fearlessly and by all lawful and proper means the lay client‟s interests” (at pp227-8). Interestingly, the work of legal historians suggests that the presence of defence lawyers has, from the outset, served to benefit the functioning of the wider criminal process, not simply the accused. 16 The professional defence role emerged in the 18 th century to counter the „lawyerisation‟ of the prosecution function but this „evening up‟ of both sides was designed less to promote the interests of the accused and more to assist in the efficient trial and conviction of defendants by avoiding the need for discretionary judicial practices. As Cairns puts it, “Certainty of detection…certainty of conviction, certainty of punishment. No mercy and no escape. This was the logic of reform”. 17 Inquisitorial Defence Turning now to the role of the defence lawyer within French criminal procedure, I will consider the place that she is allocated within the criminal process; the role that she might properly be expected to play within that procedure; and the ways in which existing legal practice and ideology serve either to help or to hinder the development of this role. Much of this discussion draws upon my own empirical research in which observations, interviews and questionnaires were carried out over a number of years and across a number of sites in a project examining the investigation and prosecution of crime in France. These observations are self-consciously those of a lawyer from a more (in theory, at least!) adversarial procedure. The thrust of my argument is that despite its limitations in practice (and in particular the decline of the juge d’instruction model and the corresponding rise of the public prosecutor as judicial supervisor) the notion of judicial investigation and supervision remains very much at the heart of French criminal procedure and plays a defining role in the nature of its development. During the all-important pre-trial phase it is the judge who dominates the procedure and who occupies the space in which the lawyer might operate in an adversarial process. Although recent reform has apparently provided the lawyer with greater opportunities to participate in the enquiry, these changes are difficult to realise and her role remains limited in the vast majority of cases. Instead, the lawyer‟s role seems to be more symbolic, ensuring that justice is seen to be done, rather than ensuring that it really is done. French commentators such as Karpik 18 and Soulez Larivière,19 describe the legitimating function of the defence as a guarantee of the 16

For further discussion see Hodgson, J (2005) French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Hart Publishing, Oxford) ch 4. 17 Cairns, D J A (1998) Advocacy and the Making of the Adversarial Trial, 1800-1865 (Clarendon Press, Oxford), p63. 18 Karpik, L (1999) French Lawyers: A study in collective action 1274 to 1994 (Clarendon Press, Oxford) 19 Soulez Larivière, D (1982) L'avocature: Maître, comment pouvez-vous défendre…? (Editions Ramsay, Paris)

independence of the judiciary, the possibility of her contribution in testing the case demonstrating that the accused has not been dealt with in an arbitrary way. The legitimating function of the criminal defence can also be seen in more recent reforms, ensuring, for example, a minimum degree of compliance with the European Convention on Human Rights (ECHR). 20 Thus, although there is resistance to strengthening the defence role on the one hand (most notably for suspects held in police custody), on the other, the presence of the defence is recognised as a necessary feature of the new guilty plea procedure and other measures designed to dispose of cases more rapidly whilst avoiding the need for trial. In this way, just as we have seen in England and Wales, the defence role is not only about providing some form of representation for the accused, but also about being co-opted into furthering the system‟s own imperatives. Inquisitorial procedure is characterised very differently from the adversarial model discussed above. It concerns a centralised enquiry conducted by a neutral, usually judicial, party and it is the result of this enquiry that comes before the court. As the procedural descriptions suggest, this is an inquiry rather than an accusation. In adversarial procedure the case that is brought before the court is the partial and partisan account of the accuser, to which must be added the account of the accused in order that the full facts are before the court. In inquisitorial procedure, the investigation is a more wide-ranging enquiry which attempts to take in the accounts of both accuser and accused. (It is an investigation of the offence, not the offender). In this sense, the pre-trial is crucial; it is very much a form of pre-judgment. The case against the accused is not the partial account of the accuser, but the result of a judicial enquiry. Evidence is not being heard and evaluated for the first time at trial – much of this has already been done by the pre-trial judicial investigator and the role of the court is largely affirmative. In this way, the court does not require the defence to perform the same role as in adversarial procedure. So, what role does this suggest for the defence? For the defence to have any major impact, engagement with the case must be during the all important pre-trial enquiry. To present an alternative case at trial will in many instances be too late as much reliance is placed upon the written evidence gathered during the pre-trial stage and contained within the dossier. A high degree of credibility attaches to this evidence as it is treated as the product of a judicially supervised investigation. The defence role is most clearly defined during the period of instruction, as this continues to be treated as the paradigm. In 1897 the defence lawyer was given access to the dossier of evidence during the enquiry of the juge d’instruction and was permitted to be present during the judicial questioning of her client. This was the first time that the defence was 20

Se further Hodgson, J (2002) 'Suspects, Defendants and Victims in the French Criminal Process: The Context of Recent Reform' 51 (4) International & Comparative Law Quarterly 781-816; Hodgson, J (2004) 'Human Rights and French Criminal Justice: Opening the door to Pre-trial Defence Rights' in S Halliday and P Schmidt (ed), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing, Oxford) 185-208.

allowed into the instruction and the reform met with much opposition. More recently, the defence role during instruction has been strengthened further. Art 82-1 Code de procédure pénale (CPP) now puts the defence on the same footing as the procureur in that (together with the partie civile) she may now ask the juge d’instruction to carry out any act of investigation that may lead to the discovery of the truth. Some have described this as the beginning of an accusatorial procedure. 21 However, in contrast to accusatorial procedure, the emphasis here is on the defence ability to influence the construction of the case through participation and dialogue. She is not so much an autonomous party in the case, as an auxiliary to the juge d’instruction. This is her formal status and describes the way in which it is anticipated that she will contribute – that is, not in a conflictual or adversarial way. She acts as a counterbalance, cross-checking what the juge d’instruction does. She is the grit in the system. Most importantly, her participation is mediated through the juge d’instruction, which is crucial in terms of the effectiveness of these recent changes. Existing legal and occupational cultures are also significant in understanding how reform is likely to translate into practice. For the defence to participate effectively a change in culture will be required on the part of both the avocat and the juge d’instruction. The procureur will always be regarded differently from the avocat, as she is a fellow magistrat, representing the public interest; the avocat is of a different professional status and represents the partisan interests of the accused. The procureur and the juge d’instruction have always worked together on the dossier; the defence lawyer is the relative newcomer in this procedure. In this way, the procureur will always have the ear of the juge d’instruction in a way that the avocat does not. But it is not only the way in which the juge d’instruction regards the lawyer that will have to change. The avocat also accepts the subsidiary role allotted to her. The way in which she understands her task is to re-read the dossier, to look for weaknesses and to present the reading most favourable to her client. Even the most specialist criminal lawyers22 tend not to take a proactive role – to do so is to challenge judicial investigation/supervision itself. The recent Outreau case, in which the majority of suspects were detained for several years before being released and charges dropped against them, demonstrates the limitations of this model of defence participation and its inability to act as an effective cross-check on the work of the juge d’instruction. Defence lawyers were unable to prevent the premature narrowing of the investigation and the 21

See eg Gilbert Azibert, the then president of the Chambre d’instruction in Paris, who argues that this change is fundamental: “That means that a criminal lawyer who now knows how to do his job, can participate in the conduct of the information. It is the beginning of an accusatorial system.” (Greilsamer, L and Schneidermann, D (2002) Où vont les juges? (Fayard, Paris), p193) 22 French criminal lawyers tend to be less specialised than their counterparts in England and Wales. Karpik (op. cit.) reports that even the most specialised criminal avocats do only around 40% criminal work – the poor levels of remuneration making it impossible to do a greater share of this type of work. By way of contrast, in England and Wales, firms are becoming more and more specialised as criminal work is delivered by those holding a franchise. See further Cape, E (2004) 'The Rise (and Fall?) of a Criminal Defence Profession' Criminal Law Review 401-16.

enquiry following the case recommended the appointment of two juges d’instruction in serious and complex cases in order to guard against such „tunnel vision‟. Although the instruction model of investigation continues to operate as the paradigm in debate and reform in French criminal procedure, it applies only to some 7% of criminal cases. The 93% of cases which are not investigated or supervised by the juge d’instruction are the responsibility of the procureur (the public prosecutor who, like the juge d’instruction and trial judge, enjoys a judicial status as a magistrat). In these instances, there is no dialogue with the defence, no opportunity for participation – either in the text of the law, or in practice. The only point at which the defence is afforded any place in the procedure is during the period of detention and questioning in police custody, the garde à vue (GAV), supervision of which is the responsibility of the procureur. In many instances, this will be the principal site of investigation in the case, (many cases going to instruction will also pass through GAV first) yet none of the defence opportunities (limited though they might be in practice) available during the instruction are available in GAV. The suspect may have a 30 minute consultation with her lawyer at the outset of her detention, but the avocat is not permitted to be present during the police questioning of the suspect, nor is she allowed access to the dossier. There is no greffier present to make a note of the interview as there is in the office of the juge d’instruction. The interview is not tape recorded and the police are not required to inform the suspect of her right to silence. The nature of investigative supervision carried out by the procureur is quite different from that during instruction. It is characterised differently in the text of the law: it is a police enquiry overseen by the procureur, whereas the juge d’instruction is personally responsible for the investigation, but may delegate portions of it to the police. It is also very different in practice. The procureur has many cases to deal with at any one time and supervision is generally more distant (typically carried out by telephone) and the enquiries more rapid. 23 We might, therefore, expect greater defence participation but in fact there is less. Why? Because the GAV continues to be regarded as „preliminary‟ – the real enquiry only begins once the person is before a magistrat. Yet, there is a paradox here, because accountability to the procureur is also considered judicial supervision (albeit of a different nature to that carried out by the juge d’instruction) within the broadly inquisitorial tradition of French criminal procedure – and indeed the very reason why other safeguards such as tape recording of interrogations and the presence of a defence lawyer during questioning have been rejected as unnecessary. Interestingly, the GAV evolved as a direct result of the lawyer‟s presence in instruction, a means by which the accused could be detained and questioned away from the legal regulatory framework of instruction and which often resulted in arbitrary detention. This was legally regulated in 1958, but there is a sense in which official policy making rhetoric has yet to catch up with practice – and in particular, the fact that investigations supervised by the juge d’instruction are the exception rather than the rule. 23

See further Hodgson, J (2001) 'The police, the prosecutor and the juge d'instruction: Judicial Supervision in France, Theory and Practice.' 41 (2) British Journal of Criminology 342-61 and Hodgson, J (2005) op.cit. ch 5.

There is perhaps another reason too. A greater role during the GAV would mean that the lawyer engaged directly with the police. Her participation would not be mediated through that of a magistrat (as it is during the instruction procedure) and so this would represent a new challenge to the model of judicially supervised investigation. A number of bodies both within and outside France have called for a more meaningful pre-trial defence role (especially given the minimal involvement of the procureur and the absence of tape recording in interrogation) but to no avail – judicial supervision is held up as the success story of French criminal procedure. The role of the defence is limited to one of moral support and the provision of basic information such as informing the suspect of her right to silence. It is not to engage in any meaningful participation in the enquiry. The introduction of a defence lawyer is seen as the unwelcome introduction of adversarialism (and all that is understood to go with this – obscuring the truth, benefiting the wealthy etc) into French criminal procedure. There is also a general mistrust of the lawyer, in part because of her status as an avocat rather than magistrat, representing the interests of suspected criminals rather than the public interest. 24 The growing number of expedited procedures means that there is greater reliance on the availability of defence lawyers, but this is not supported by changes in payment or the legal professional culture. This is about lawyers assisting in the rapid processing of cases. This will be a new challenge for lawyers, like the changes to their potential role during instruction. The new „guilty plea‟ procedure (the comparution sur reconnaissance préalable de culpabilité) is therefore of particular interest as this sets out new role expectations for all involved. Whilst the level of offence is not bargained with, the sentence is: where the suspect admits the offence, the procureur can propose a sentence which would be less than she would normally ask for, ie a lesser sentence in exchange for a guilty plea. 25 This is a very significant procedure – it applies to all cases punishable by up to five years imprisonment (which accounts for over half of all cases handled by the criminal courts). The procureur may propose a prison sentence of up to one year, or half of the maximum penalty for the offence. There is a ten day period during which the accused must decide whether or not to accept the sentence proposed and if the offer is accepted, this must then 24

Garapon notes the reflection of this general mistrust of lawyers through French cinema – lawyers are womanisers who will sink to any depths to block the truth and help the client; magistrats are the antithesis, sacrificing even their lives in the interests of truth. See Garapon, A (1996) Le gardien des promesses (Odile Jacob, Paris) pp66-7. 25 There was concern that this would usurp the role of the court and infringe the principle of separation between the poursuite and the jugement, between prosecution and judgment. The Conseil Constitutionnel held that it did not, but because the accused may be sentenced to imprisonment, the hearing must take place in public (otherwise, this would of course breach Art 6 ECHR). The Conseil also emphasised that the court should still look as closely at the facts as it would do during a normal trial – it should retain is function as a court of trial and not just rubber stamp cases through.

be confirmed by a judge. It can be argued that this does not sit so easily with a more inquisitorial based procedure. Firstly, the role of the judge is severely circumscribed: the judge may not modify the proposed sentence; she may only accept or reject it – in which case the normal trial procedure comes into play. Such an „all or nothing‟ approach may act as a disincentive to rejection, providing a certain momentum in favour of accepting the agreement negotiated by prosecution and defence and so undermining the function and safeguards of the trial. Secondly, in France, the lawyer and the prosecutor are not of the same professional status, making negotiation potentially more difficult. Thirdly, whilst the victim has no formal role in Britain and the USA, she is part of the process in France, with full participation rights. It is unclear what role, if any, she would play in this bargaining process. As with the changes in the instruction procedure, the reform will also require a shift in professional legal cultures. The defence lawyer will be asked to agree to a sentence; the procureur will negotiate directly with the accused; and the judge will share her decision-making power with the prosecution. There is concern that in allowing the procureur to manage cases in this way, the role of the judge becomes increasingly marginalised, undermining the accused‟s right to a fair and public hearing of all the evidence. It might also be argued that this conflicts with the principle that the judge must base her decision upon the evidence debated before her, as set out in article 427 CPP. Conclusion Given the different ways in which the defence role is characterised in the two models of criminal procedure, together with the changing conceptions of the value of defence participation to the wider criminal process, can we identify a core defence function? It is easier to generalise in relation to the trial, where all jurisdictions now recognise the need for the accused to be represented, to have sight of the prosecution case, to have an opportunity to interrogate the evidence against her and so on. But the effectiveness of that representation will depend on what goes before. If the trial serves more as an affirmation of a pre-trial judicial enquiry, the defence must participate in the enquiry in order to be effective at trial. The model for this is one of dialogue, but even within the rhetoric of the law, this applies only to the most serious cases, those before the juge d’instruction. Despite recognition of the need for some defence input to act as a crosscheck or counter balance since 1897, in the vast majority of cases the defence plays no part in the pre-trial enquiry and there is no opportunity for dialogue with the procureur. The suspect is left without the protections of either the adversarial or the inquisitorial model. This position is becoming increasingly untenable – it cannot be justified on the basis of judicial supervision, which is weak and largely retrospective in these instances. Additional pressure comes from the EU and its attempt to harmonise the provision of safeguards for suspects across the EU through its recent proposed Framework Decision. Although described as simply replicating the Art 6 ECHR guarantees to which all member states have already signed up, several member states, including France and Germany, have objected to the proposal to have a lawyer present during the interrogation of the suspect. French criminal procedure must recognise the centrality of procureur supervised investigations and the imbalance between the defence role in these and during

instruction. Basing reform on an empirical reality as well as a theoretical coherence of the overall structure will be more meaningful. In England, Wales and Scotland, the integrity of the adversarial model depends heavily upon the principle of equality of arms. In this, the defence must also take responsibility, defining and executing its own role in terms that are meaningful and effective. The failings in the initial provision of custodial legal advice have led to a greater awareness on the part of the profession of the appropriately adversarial nature of the defence role and what this means in concrete terms. Further attacks on the effectiveness of the defence have come in the form of recent legislation undermining the lawyer-client relationship and increasing the evidential assumptions against the accused.