Role reversal

Just before the Civil Procedure Rules came into force more than ten years ago, I boasted about Lord Woolf copying the French civil procedural system. Now it seems the newly formed French government is keen on copying the English criminal system. The French criminal justice system was heavily criticised after a young woman was raped and murdered in early September 2010 by a man with a prior rape conviction who benefited from an early release granted by a judge.

French interior minister Brice Hortefeux recently announced that he was keen on the extension of the role played by juries in the French criminal system. He may be seen as overstepping his justice colleague's domain but he has the full support of his close friend Nicolas Sarkozy.

The timing for the forthcoming French reform is interesting: at the same time as the French are considering extending the role of juries in criminal trials and get French citizens more personally involved in the judicial process, Britain's 'victims' champion' Louise Casey suggests that jury trial should be reserved for the most serious cases only.

Jury trials are time consuming, costly and, to avoid the hassle of a long court attendance, defendants tend to be keen on pleading guilty at the last minute. Casey recommends that trial by jury should no longer be available for people charged with minor either-way offences.

The public voice

In an interview given to the French magazine Le Figaro, Brice Hortefeux expressed several wishes regarding the French criminal system. First, he believes the public should be more involved in the conviction of offenders. One way to achieve this would be to introduce juries into the tribunal correctionnel (a lower court with a single professional judge). Alternatively, President Sarkozy has suggested having a mix of professional and lay judges.

Second, if an offender is sent to prison by a cour d'assises for a number of years, his early release would not be ordered by a single judge but by a jury similar to the one which led to the conviction.

Third, some of the judges working for criminal courts should be elected as they would therefore represent the public's voice. Here Mr Hortefeux wants to adopt the American model.Hortefeux's idea to introduce more juries and lay or elected judges might be difficult to implement in practice assuming it ever receives the legislator's approval. Anglo-Saxon countries have, in the last 20 years, reduced the type of litigation which can be tried by jury. The cost of summoning a jury is not negligible.

In English speaking countries the parties' lawyers probe into witness evidence which is time consuming. This is less usual in criminal litigation in France. The increased length of trials at the tribunal correctionnel would slow down the course of justice and increase the existing backlog. And, as jury trials are more time consuming, they would be more costly '“ and who would pay for that?

Potential problems

Lay judges in France (sitting in the commercial courts and employment tribunals) also tend to be looked down upon. Electing judges (which is common in the United States) would cause more problems than the current system and would be unlikely to meet public approval.

It would require a whole change of culture, something that rarely happens smoothly in France. And what about the risk of a US-type of plea bargaining (known as plea negotiation in Britain) which can lead to a lesser sentence if the defendant accepts to plead guilty of a lesser offence than the one with which he was initially charged? This does not reflect well on a democracy's judicial system.

Finally, there is one problem we must address which has not been considered by the government: that of the maturity of judges. In contrast to the system in England and Wales where judges are former solicitors or barristers with years of experience, becoming a judge in France merely requires a university degree followed by specific judicial training at the Ecole Nationale de la Magistrature (candidates must pass an entry exam and there is a limited number of places available).

It is not unusual for a 23 year old, freshly out of the ENM, to be appointed a judge or a prosecutor in a sensitive geographical area. This is of course good training, but, without questioning their ability, it is obvious that some particularly difficult decisions (such as the early release from prison of a criminal) should not be taken by a newly qualified judge.

Take note

Whether the French will ever introduce more jury trials like their cross-Channel colleagues is another matter. Bearing in mind that they pride themselves with being the oldest defenders of human rights and the drafters of the oldest written Constitution in the world together with the United States, allowing more offenders to be judged by their peers might be an improvement. But the grass is not always greener on the other side, and, before embarking on a complex reform, France should take note of the implied criticisms recently made by Louise Casey against the jury trial system currently applicable in England and Wales.

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