CHARLES CLARKE believes that the French inquisitorial legal system is better than Britain’s adversarial system. Giving evidence to the House of Commons Home Affairs Committee recently the Home Secretary said: “I think that a supervisory system and investigating magistrates’ regime is very superior to the system that we have in this country.” The context, admittedly, was the handling of terrorism cases but he seemed to be making a general point.

Mr Clarke made it clear that this was his personal opinion, not the Government’s view. The reason that the Government had not yet come to the same conclusion, he said, was the conservatism of the lawyers. (“I do not think the adversarial system has been a particularly effective means of securing justice, but I admit I am not a lawyer and therefore not steeped in the conventions which say that what I have just said is a load of nonsense. But many of my colleagues in government, as in Parliament, are lawyers who believe that the current system is perfect.”) If Mr Clarke thinks preference for Britain’s system is confined to conservative lawyers that was not my experience as a member of the Runciman Royal Commission on Criminal Justice (1991-93). There were 11 commission members of whom only four were lawyers — a judge, a barrister, a solicitor and myself, an academic. It was set up after concern over miscarriages of justice culminating in the case of the Birmingham Six. Ludovic Kennedy and Michael Mansfield, QC, were arguing publicly at the time that the French-style investigating magistrate would be a better safeguard against miscarriages of justice. So the question was very much in the Royal Commission’s mind.

The research into the French system conducted for the commission by Professor Leonard Leigh, then Professor of Law at the LSE, and Dr Lucia Zedner, then a lecturer in law at the LSE, gave no support to the view that the inquisitorial model was superior and there was virtually no support among the 800 or more submissions to the commission from a wide variety of organisations and individuals.

The Royal Commission made 352 recommendations for changes but unanimously rejected adopting judicial supervision of police investigations: “Our reason for not recommending a change to an inquisitorial system as such is not simply fear of the consequences of an unsuccessful cultural transplant. It is also that we ourselves doubt whether the fusion of the functions of investigation and prosecution, and the direct involvement of judges in both, are more likely to serve the interests of justice than a system in which the roles of police, prosecutors and judges are as far as possible kept separate and the judge who is responsible for the conduct of the trial is the arbiter of law but not of fact.”

The commission was not impressed that the French system notoriously leads to a much higher proportion of defendants kept in lengthy pre-trial detention. (“We believe that a system in which the critical roles are kept separate is a better protection for the innocent defendant, including protection against the risk of unnecessarily prolonged detention prior to trial.”) The commission was also influenced by the fact that on the Continent the juge d’instruction was no longer held in high esteem. In Germany, his investigative functions were transferred to the public prosecutor in 1974. In Portugal, his functions were transferred to the public prosecutor in 1987 subject to a power for the victim or the defendant to call for a juge d’instruction if the prosecutor fails to act. In Italy, the juge d’instruction was abolished in 1989.

In France, official inquiries in 1949 and 1990 recommended abolition of the juge d’instruction. The institution has survived but it is much criticised. It operates only in 5 per cent of cases but even then most of the investigation is in practice done by the police with little supervision.

The crucial initial stages before the instruction begins is entirely in the hands of the police. Once it begins, in theory the defence are on the same footing in terms of access to the dossier and the ability to participate in the investigation. But, having studied the system in depth, Dr Jacqueline Hodgson, of Warwick Law School, concluded: “Effective participation remains difficult to realise and case discussions are dominated by the police and procureur (prosecutor) to the exclusion of the defence avocat . . . In practice, judicial supervision of the police is not about active involvement and direction, about taking control of the case, or monitoring closely the processes of investigation and evidence gathering. In most instances the judicial supervisor is unable (and even unwilling) to displace the dominance of the police constructed case.”

In short, there is no evidence from the Continent to encourage Charles Clarke to go down this road. Fortunately, the Lord Chancellor has made it clear he has no intention of doing so.

The author, a QC, is Emeritus Professor at the LSE

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