A retreat from fundamental values
The focus of this comparative account is the potentially radical and fundamental changes that are taking place within criminal justice in Britain and in France and the ways that these are driven by wider domestic, European or international concerns. The criminal justice process in England and Wales has been undergoing something of a metamorphosis, moving away from established adversarial values, rules and practices, in many instances eroding what were once regarded as core rights and freedoms in the name of efficiency, security and justice to victims. What is at the end of this process, is unclear. There is no single coherent model or framework, no obvious direction of travel, no unifying objective, but rather, a set of responses to issues and imperatives arising at different points in time – ranging from the crisis in confidence around miscarriages of justice in the 1980s and 90s, to the preoccupation with risk and efficiency that took hold in the 1990s, the accelerated security driven agenda after the events of 9/11, and the austerity measures applied across the public sector in the wake of the 2008 financial crisis. France, too, is experiencing a shift away from the more judicially-centred procedures and values that have characterized the inquisitorial tradition, in favour of measures promoting efficiency, security and a justice system that is more responsive to the needs of victims. Like England and Wales, there is no clear direction of travel or underpinning rationale, but a series of un-coordinated and often politically-driven changes that taken together, undermine procedural integrity and process values. At the same time, the European Court of Human Rights (ECtHR) and the European Union (EU) have promoted pan-European fair trial and due process standards, challenging some of the more repressive domestic trajectories of criminal justice and influencing national reforms.
By adopting a comparative approach with France, whose inquisitorially rooted criminal justice process is different from that of England and Wales, this study explores the nature and reach of these various trends, the ways in which they challenge and disrupt criminal processes and values, the contrasting responses that they provoke and what this tells us about the similarities and differences between procedural traditions. In both jurisdictions, the opportunity for rigorous testing of the accusations against the accused – whether through public trial or pre-trial judicial investigation – has all but disappeared. Due process and fair trial guarantees have become subordinate, altering the core functions of criminal justice professionals in sometimes fundamental ways and distorting the criminal process balance between effective investigation and prosecution on the one hand, and the protection of the presumption of innocence on the other. Preoccupations with prevention, securitization and a managerialist form of bureaucratic efficiency that has been likened to the ‘McDonalization’ of criminal justice (Ritzer, 2004; Bohm, 2006), have been elevated to the objectives against which criminal justice success is measured.
Law as Politics
Underpinning these transformations in criminal process and policy in Britain and in France has been the increasing politicisation of criminal justice. The treatment of crime has taken on far greater electoral importance in recent decades, as politicians across the political spectrum compete to be tough on crime, embracing the politics of law and order and a form of penal populism in which the risks of harm are portrayed as ever greater and multiplying, requiring increasingly punitive responses in order to keep the public safe. Where criminal justice was once a key battleground between left and right, we now see consensus on more repressive policies which has taken the heat out of political debate, but at the expense of fairness and integrity in the criminal justice system. The result of this relative political unity is an almost universal ideology of crime control embedded within politics and able to flourish virtually unopposed, leading to an explosion in legislative reform. In both jurisdictions, the continued addition of new measures has created an undisciplined mass of criminal law and procedure, lacking the coherence and guiding principles of any single clear procedural model. Powers, procedures and offences have been added to criminal codes and statute books without any rationalization, creating complex and sometimes contradictory structures of criminal law and procedure.
Increasingly, criminalisation is preventive and linked to forms of risk management rather than the acts and intentions of the accused. Procedures are simplified, rationalized and made cheaper by removing due process protections considered too costly in terms of time and resources. Exceptional powers legislated following terrorist attacks in Europe, and in France in particular, are also finding their way into states’ ordinary common law in unplanned for ways. Weaker judicial guarantees tolerated in the context of what were understood to be short-term measures, have become part of a more permanent agenda of securitization. Running counter to this, ECtHR decisions and EU measures together represent a developing and increasingly interlinked body of pan-European norms and practices that seek to develop certain procedural safeguards and guarantees. However, whilst these legal decisions and measures can encourage some alignment as well as strengthening of standards, their differential and often reluctant implementation within domestic legal systems, further contributes to procedural incoherence at the national level.
Managerialism and Efficiency
It is clear, however, that procedural tradition remains an important part of how criminal justice systems understand their own procesess and ways of doing things in terms of the guiding principles and values that are claimed to underpin internal change and responses to externally driven imperatives. Many of the changes to the role of the French prosecutor, for example, are responses to a growing managerialism through which success is measured in purely quantitative terms, but it is understood within the domestic narrative in a way that does not displace the core organising principle of judicial supervision. Powers of investigation and case disposition have been ceded to the procureur but in her capacity as judicial officer – restating her professional ideology to mirror that of her more independent judicial colleagues, thus leaving the judicial model apparently intact.
Although we do not find convergence towards a unified system or approach to criminal procedure, we can identify a wider shift in criminal justice across both jurisdictions, reflecting a growth in penal populism and resulting in a retreat from fundamental values. The increased politicisation of criminal justice has seen the promotion of policies that claim greater efficiency and cost-saving, but which seem mainly to re-focus criminal justice towards the mass, standardised processing of medium and low-level offences, producing apparently favourable statistics but with little impact on offending. Epitomised by the response to the threat of terrorism, preventive justice and the securitisation of criminal law are animated by the politics of fear and claims around the management of risk. We have seen a range of exceptional measures, justified by exceptional circumstances that, it is claimed, warrant departures from established values and safeguards in the exercise of police powers and the attenuation of safeguards – yet many of these have subsequently been normalised and found their way into the ordinary, and increasingly punitive, criminal law.
The Disappearing Trial
Overlaying these various policy trends, the thrust of criminal justice policy and reform across both jurisdictions has been away from trial and the public disposition of cases, avoiding the opportunity for those accused to contest the accusation against them. Although retaining features of adversarial and inquisitorial procedures, and paying lip service to a human rights narrative, criminal processes are increasingly characterised by an administrative justice model that is measured by a set of managerialist outcomes more concerned with throughput than with the quality of justice. Within both systems of criminal justice there is a need for scepticism and cross-checking – not just at the trial, which is becoming an increasingly rare event, but more crucially during the investigation. The French trial might be described as the confirmation of an earlier set of data collecting moments. It is during the investigation that the important work is done. But even where it occurs, is the trial in England and Wales very different? The evidence is rehearsed at court, and is believed or rejected, but there is no truth-seeking function for the trial beyond an evaluation of the evidence that the parties have chosen to present and argue. There is little incentive to go beyond the initial, plausible case thesis. Avenues not explored during the investigation are unlikely to be re-visited and so even with the prospect of a trial, it is during the pre-trial investigation that the processes of cross-checking and verification must take place.
The ECtHR has emphasised the importance of fair trial rights operating in practical and effective ways during the pre-trial phase, in order to ensure the fairness of any trial that may follow. The participation of the accused is key to the notion of a fair trial, but relies on legal structures, ideologies and resources to allow this. In England and Wales, the investigation is not fully adversarial: procedurally and as a result of the severe restrictions on legal aid, the defence has little chance to participate in, contribute to or challenge, acts of investigation. In France, the accused and her lawyer have greater rights to participate in the enquiry in the very small number of cases investigated through the instruction procedure, but the concentration of power in the juge d’instruction makes it difficult for the defence and to an extent, the prosecutor, to serve adequately as a counter-reflex during the investigation. In the overwhelming majority of cases, however, the investigation is overseen by the procureur, who is less independent that the juge d’instruction and mostly reliant on the police: there is no opportunity for the defence to have any part in the investigation.
In both jurisdictions, the overwhelming emphasis on the initial police investigation and its importance in the mode and result of case disposition suggests that we need to focus on re-framing the pre-trial stage so that an effective investigation is one that interrogates fully the initial case thesis. This would require some adjustment of professional ideologies and ethics, but could be accommodated within both systems around a mode of participation, co-operation and cross-checking, rather than conflict and non-disclosure. However, although likely to produce more accurate results, better respecting the presumption of innocence, with finite and decreasing resources, a broader investigative approach that is slower to discount weaker leads will inevitably be seen as inefficient, wasting time and money. Perhaps the most striking way in which the criminal justice system has metamorphosed is common between the two systems – from a more principled and unified system to one driven by managerialism and efficiency at the expense of justice.
Professor Jacqueline Hodgson, School of Law, University of Warwick, UK.
The forthcoming conference “The McDonaldization of Justice and the Disappearance of Fair Trial” to be held at the University of Warwick on 19-21 May, 2022, will have several sessions devoted to discussion of the themes in The Metamorphosis of Criminal Justice. Further information on how to participate in this can be found on our Conference website.