The French legal system: vive la différence?

Much is made of the differences between jurisdictions when it comes to legal practice. Yet how (and how much) do we know of other proximate jurisdictions? A BBC lockdown treat for lawyers was the French police drama series, Spiral, set in the seedier suburbs of Paris, with a team of police who solve serious crimes (usually murder), struggling with their own personal crises, bureaucracy and politics. There may be some dramatic licence. Would we want our French colleagues to judge British system by watching Judge John Deed or Rumpole of the Bailey? Probably not. And what is the comparative jurisdictional reality behind the drama?

Custody

France has a long history of human rights. Furthermore, suspects have a right to silence when interviewed, and access to legal advice. The prosecution bear the burden of proof in criminal trials. Custody suspects are given a notice setting out their rights, which include the right to: inform a relative and/or employer (unless this would undermine the conduct of the investigations); and to be examined by a doctor, legal assistance – and an initial private consultation at the beginning of custody and every 24 hours.

There are two types of French police – the gendarmerie nationale, and police nationale. The gendarmerie is a branch of the French armed forces, responsible for national security of public buildings, airports and the police at sea. The police nationale has two divisions. Administrative police operate under the supervision of the executive branch of government, and deal with issues of public order, such as directing road traffic, street demonstrations and riot control forces. The judicial police is supervised by the judiciary, and investigate crime, gathering evidence and serving search warrants.

Court

The advocates are called Maître (meaning Master), not Monsieur or Madame. Defence lawyers in France have a reduced role, as the investigation is the responsibility of the investigating judge and prosecutor. If there are concerns about whether the prosecutor is doing their job, it is possible to start a civil action, with an investigative judge appointed. Then, the suspect’s lawyer and the victim’s lawyer have broader powers to request investigation and interviews.

A major difference between the systems is that, in France, some judges have a significant role in investigating serious crimes – interviewing suspects, speaking to police and attending crime scenes. They even arrange confrontations between suspects and victims. The French legal system was influenced by Roman law, not the common law system we have.

French judges are known as Magistrates – highly qualified graduates from the postgraduate School of Magistrature. Criminal proceedings are inquisitorial, and managed by a juge d'instruction. The judge appointed to the case is in charge of its preparation, and deciding whether it should come to court. In England & Wales, only Coroners’ inquests and sometimes tribunals, are comparable.

The French public prosecutor also has a close relationship with the criminal investigations department (police judiciaire). The prosecutor is involved in decisions about keeping suspects in police custody. A victim can bring a civil claim for damages within criminal proceedings. Their role is to gather all the information that may incriminate or exonerate a person accused of an offence. 

Minor cases are dealt with by police courts – the tribunal de police and are classified under French penal code as 'contraventions' – such as minor disturbances, and driving offences punishable only by smaller fines. The tribunal of police is composed of a single judge. A Prosecutor presents case before the tribunal of police.

The Tribunal Correctionnel deals with serious offences (‘délits’) under French penal code, punishable by up to 10 years in prison. The Tribunal Correctionnel is usually composed of three judges. The Cour d'Assise handles the most serious offences classified under French penal code as ‘crimes’ – punishable by imprisonment from 10 years to life. This is the only court with a jury. The Cour d'Assise is composed of three professional judges and six jurors. On appeal, the court is composed of three professional judges and nine jurors. The Cour de Cassation is the final court of appeal for civil and criminal cases.

Conclusion

The interest which Spiral sparked in the French legal system is admittedly bit of a busman’s holiday – but it is fun to look for differences in the two systems. Yet I think, on balance, I am content with our common law system…

David Pickup is Senior Partner of Pickup & Scott, and Head of the Mental Health Department: pickupandscott.co.uk