Common v. Continental: A Reaction to Mr. Evan Whitton's 1998 Murdoch Law School Address

Author:	Jean-Marc Baissus LLM Former President of Péronne Tribunal de Grande Instance, Legal consultant, Ethiopian Ministry of Justice
Subjects:	Civil Law Europe (Other articles) Common Law (Other articles) Comparative Law Europe (Other articles)
Issue:	Volume 5, Number 4 (December 1998)
Category:	Comment

Contents

• Introduction
• The Adversary System
• The Position of the Judiciary
• The role of the judiciary in the pre-trial stage
• The prosecution service
• The investigating judge
• The French "juge de la mise en état"
• The judiciary at the trial stage
• The Rules Governing Evidence
• The gathering of evidence
• The weighing of evidence
• Expert opinion
• The intervention of the victim in the criminal trial
• Evidence in civil cases
• Remedies for a Faulty System
• The training of judges
• The cost of proceedings
• Conclusion
• Notes

 
"You know they've taken to using lawyers instead of rats for testing purposes in scientific research ? Well, the reason is that there are things that even rats won't do"    Robin Williams, in the film "Peter Pan"
 

Introduction
 

1. As a student of comparative law, it is a great honor to be given the chance of reacting to Mr. Evan Whitton's 1998 Murdoch Law School address. The distinguished speaker has touched on this occasion on the core question that torments the comparativist: where is the best system of law to be found? More precisely, given that substantial laws tend to become more and more uniform through the much-vaunted "globalisation", which is the best way to administer Justice? In this respect, with the demise of "socialist" systems, one could say that the comparativist's choice boils down to "common-law" versus "civil law" procedures.

 
2. This reaction will not assess a certain number of issues linked to the situation of the press versus the judiciary, however fascinating the discussion may be regarding the law of contempt or libel. I could playfully take Mr. Whitton to task for omitting Theophraste Renaudot's "La Gazette", first published in 1631, as the real inventor of modern journalism. But I will strive to concentrate my commentary on the issue of procedure.

 
3. If I may summarize the main idea of Mr. Whitton's address, I would state that the author considers that the Common Law system of procedure has an in-built flaw, where injustice and enormous costs are combined to achieve a corrupt legal system, which nowadays is according to him, in a "terminal" condition.

 
4. Mr. Whitton's contends that this results from the perverse working of "a tiny cartel of lawyers and amateur judges", "a score of racist lawyers and judges", who "corrupted the system" as from the 13th century[1].

 
5. I do not have the historical qualifications necessary to challenge this allegation, and will let other, better-qualified, commentators assess it. What I will attempt here is a discussion on procedural matters, from the viewpoint of a "civil law", "continental" or "romano-germanic" lawyer. It must be stressed that my training and experience as a French judge dictate the comments that follow. The reader is therefore forewarned that these comments may be somewhat tainted by this specific standpoint.

 
6. Mr. Whitton believes that the English-inspired procedure is a "game", where truth is obscured by the adversary system, where lawyers rather than judges are in control, and where the rules are devised to conceal evidence. He then goes on to suggest a certain number of remedies.
   
   

The adversary system
 
7. The use of "adversary system" to define the English type of procedure is an interesting one, because the expression most currently employed by Common-law lawyers to qualify their procedure, in my experience at least, is that of "adversarial system". There is here more than a simple terminological variation. "Adversarial" is put forward as opposed to "inquisitorial", the frequently used adjective when applied to the continental-type procedures. The implication is negative, referring to the infamous Spanish "Inquisition", with its record of injustice and use of torture for obtaining confessions[2].

 
8. It has always been a source of wonder for me that the evil deeds of a 15th century religious judicial institution are called upon to commit to oblivion any procedure not in line with the Common-law one. Surely, just a moment's reflection will lead anyone to drop the belief that late 20th-century democracies would tolerate a system whereby an alleged offender is left to fend off a presumption of guilt against an overbearing totalitarian judicial system. To begin with, torture was used precisely because legal techniques had progressed to the stage where the onus of proving guilt was already on the prosecution, rather than simply based on the outcome of a judicial duel. The means are inadmissible, but this does not imply that the objective was likewise.

 
9. So rather than invoking the tormented soul of Torquemada, I believe one should let religious prejudice lie in the distant past and accept that modern procedures are all "adversarial", in the sense that a liberal judicial process is based on the opposition of contending parties, be it in civil or penal matters. The obvious consequence is that the position of the judge, in both systems, remains that of an independent arbitrator.

 
10. The antonym of "inquisitorial", if one really wishes to remain with these somewhat outdated legal terms, should be "accusatorial". But in fact one would not be at pains to demonstrate that continental procedures rely heavily on the positions developed in court by opposing parties, whereas the "inquisitorial" attitude of Common Law judges may be illustrated in many instances. As far as I know it is far from rare where a British judge puts a direct question to counsel or even to a party, not to mention that most "inquisitorial" of powers, in the worst sense of the term, of being allowed to "instruct" a jury during summing up, after the defence has uttered its last words. For one trained in continental law, this type of "instruction" seems to bear a great potential for jury manipulation. I'm sure safeguards exist and that judges are most careful not to influence juries. But the possibility of such manipulation exists, as witnesses the critics of the Bentley trial judge.

 
11. "Adversary system" as used by Mr. Whitton seems therefore more acceptable than "adversarial". I would nevertheless prefer to oppose a "court-led" procedure to a "counsel-led" one, given that these are pretty rough approximations of complex sets of procedural rules. "Truth-obscuring" is the qualification used by Mr. Whitton to describe the "adversary system". As seen from the continental side of the Channel, one does not necessarily subscribe to this appreciation. On the contrary, I would tend to consider that truth can only be obtained through the organisation of a confrontation of positions in the legal arena. There is no better way than putting the parties in a position to state their argument as fully as they wish. So the essential rule of the "game" is the same in both common-law and civil-law procedures.

 
12. This brings us to Mr. Whitton's central appreciation of the passive position of the judiciary in common law procedural systems.
    
    

The Position of the Judiciary
 
13. To comment on this assertion from the continental lawyer's point of view, I will have to distinguish between the pre-trial and trial stages, both in penal and civil matters [3].
    
    

The role of the judiciary in the pre-trial stage
 
14. I use here the word "judiciary" rather than judges, as does Mr. Whitton. This is due to the fact that continental procedure knows two categories of members of the judiciary who are not recognised as such or simply do not exist in common law criminal procedure, that is the prosecution service and the investigating judge. In civil cases, an interesting institution is that of the French "juge de la mise en état", especially in the light of the recent Woolf report.
    
    

The prosecution service
 
15. In the continental perception of things, the public prosecutor acts as the first filter against arbitrary procedures, in the interest of civil liberties. This certainly tends to bring him close to the judge's constitutional standing. The public prosecutor achieves this either through his obedience to the principle of legality (in Germany), his clearly stated practical independence from the executive (Netherlands), or even because the Constitution provides for the prosecution service to come under the general heading of the judicial power [4].

 
16. Broadly speaking, the prosecution service in continental systems has a triple role: it leads the investigation at the pre-trial stage (barring coercive measures that are within the ambit of the bench judges) by supervising police work. It initiates prosecutions of course. It also is responsible for the execution of sentences given out by the court.

 
17. The continental prosecutor is not another private party, but the public party, the advocate of the people. This entails a specific ethical duty of acting in the interest of law and justice, and being guided solely by the search for truth.

 
18. Thus the prosecutor shares with the judge the same ethical duty of researching all the circumstances of the offence, even when they are in favor of the accused. His attitude is supposed to be one of strict fairness and objectivity [5]. The possibility often exists for the prosecution to summon witnesses for the defence [6] or to appeal of a sentence even in the interest of the accused (in France or Germany, for instance).

 
19. It is widely felt in Europe that the police should not be allowed to bring cases directly to court, but rather that some outside legal eye should first screen the police files. The prosecution is not deemed to be a legal consultant to the police, such as the English Crown Prosecution Service. The relation is reversed: the police acts under the supervision of the prosecutor, considered as a judicial officer lato sensu.

 
20. The second characteristic which brings the continental prosecutor close to full judicial status, is that he has a great deal of freedom in drafting charges against a given suspect. Even if it is a negative decision, the choice not to press such charges is a judicial one by nature. The prosecution can always act on an ex officio basis, and does not have to wait for a file to be sent by the police. This pro-active role is grounded on the idea that the prosecution of crime is a matter of public interest. The search for the truth falls within the scope of the powers of initiative of continental prosecutors. Thus it is logical to see prosecutors entrusted with defining and implementing a penal policy, for instance by ordering the concentration means on the repression of certain offences.

 
21. In theory two systems compete regarding this specific power. The first one is ruled by the principle of legality: where he is notified of the existence of a charge, the prosecutor is under the obligation to defer the case to the court. This is the leading principle in Germany or Italy [7]. But one has to note that a discretion is open to drop charges in the case of petty crimes, as well as the frequent use of statutes of limitation to eliminate any excessive workload for the Bench.

 
22. The second type of prosecutorial action is led by the principle of opportunity[8]. Charges will be brought only where it is felt it is in the public interest to do so, or taking into account to the current workload of the Bench. There is a risk of abuse of such prosecutorial discretion, so guidelines are often issued by the prosecution hierarchy, whilst a course of action is open to the victim to initiate a private prosecution or to challenge the dropping of charges. Of course the scope of discretionary prosecution is virtually reduced to nothing when one considers serious crimes.

 
23. Continental European practice tends therefore towards a unanimity, whereby the prosecution service enjoys a great deal of freedom with low- to middle-range offences.

 
24. Finally, the tendency is to open the scope of possibilities for the prosecution, so as to ensure a judicial response to petty crime. The prosecution may thus conclude transactions (in Belgium, Italy or the Netherlands), attempt mediations or resort to the conditional waiver of the case[9].

 
25. The continental prosecutors generally have the power to oversee the execution of a sentence when the court has handed it out. The idea here is that judicial authority does not stop with the decision. It even goes to the extent in certain countries, that specialised penalty-enforcement judges are provided for[10].

 
26. It is not considered proper for an administrative authority, such as the British Home Secretary, to decide in what is a de facto judicial matter, the enforcement of a criminal court's decision.

 
27. The actual status of the prosecutors varies of course from country to country, from that of a civil servant, such as in Germany, to a quasi-judicial one, such as in Italy or France, where the word "magistrate" covers both professional prosecutors and judges. Moreover, in the course of a judicial career, it is very often possible to hold successively a position in the prosecution service and on the bench, because there is a common constitutional statute.

 
28. It speaks for itself that the English system has very recently (1986) evolved towards the creation of a permanent public prosecution, the Crown Prosecution Service, although currently under review for not being up to expectations [11]. Scotland has of course a body of professional prosecutors, the Procurator Fiscal Service, who shares with their continental counterparts a duty of fairness and a great measure of prosecutorial discretion.
    
    

The investigating judge
 
29. A very typical continental institution originated with the French "juge d'instruction". This judicial specialised function is to be found today in Belgium, Switzerland, Luxembourg, Greece, Spain, Netherlands or Portugal [12]. Although many details differ from country to country, a general outline of the role of the continental investigating judge may be attempted.

 
30. The basic idea is that where it comes to investigate serious or complex offences [13], or to ordering certain coercive measures at the pre-trial stage, the protection of the citizen calls for the independent and impartial eye of the bench judge. Certainly a certain number of recent miscarriages of justice in Britain tend to show that an exclusive competence of the police in gathering evidence may create serious risks for the individual [14]. I believe that the Australian Chamberlain case quoted by Mr. Whitton could also be classified in this category. The continental prosecutor acts as a first filter of police procedures. But the institution of the "juge d'instruction" brings an extra stage in the protection of civil liberties.

 
31. The "juge d'instruction" is emphatically not a prosecutor. He does not decide to initiate a case, which is indeed the sole prerogative of the public prosecution. He is first and foremost a judge, i.e. absolutely independent, and does not in any way have to pander to the prosecution. He belongs to the first-instance court bench and is assigned to this particular position for a given time. Quite often, he will hold normal judicial hearings on a part-time basis, for instance in the family division.

 
32. The juge d'instruction's duty is to investigate "à charge et à décharge", in other words his sole brief is to search for the material truth both for and against the accused person. He has full investigation powers, even if in practice he instructs the police in the furtherance of gathering evidence. Thus the judge may interrogate the suspect, hear the victim or witnesses. He orders expert opinion (see below the comments rules of evidence). He may stage a reconstruction of the crime [15]. He is in fact very often called to the scene of the crime to supervise the work of the forensic experts from the first. He will be present at the post-mortem and may require specific operations from the pathologist. He therefore generally has had specific training in forensic science and an experience of special technical areas, such as accountancy for the investigation of financial offences (see below the section on the training of the judiciary).

 
33. The investigating judge has sole jurisdiction to take coercive measures during the pre-trial investigation stage. He may order detention on remand, restraining orders or grant bail (generally of a non-monetary nature) along strict procedural lines. According to the principles laid down under article 5 of the European Convention on Human Rights, freedom is the rule, and detention pending trial the exception. He orders seizures and searches, prescribes phone tapping or other interception of correspondence. He does not resort to such "invasive" measures on a blow-by-blow basis, as would be the case under Common Law procedure, but rather on the basis of what is appropriate to a case he has full knowledge of.

 
34. The investigating judge does not decide on the merits of the case. He is there to ensure an in-depth assessment of the credibility of the prosecution case. If he is not convinced there is sufficient evidence, he has the power to dismiss the case [16]. Where the juge d'instruction considers that there are grounds for a trial, he then sends the case over to the trial court, with which he has no further contact, and which does not have to follow his opinion.

 
35. The prosecution steps back and stays on the same footing as the defence in a purely adversarial process. The investigated person has a right to be assisted by counsel from the outset of the investigation, and to consult the full file of the proceedings. He may request any particular investigation step that he deems necessary for his defence. In this sense the accused is offered the support of the judge's powers to ascertain elements in his favor.

 
36. Although the investigation is not held in open court and is covered by secrecy, this is meant to enforce the presumption of innocence and to protect the suspect from the public eye. Furthermore, any decision taken by the juge d'instruction is immediately appealable by every party to the proceedings to a higher judicial organ, generally a division of the relevant court of appeal. Thus the prosecutor, accused or even victim keep a permanent eye on the running of the investigation and can exercise control on the diligence of the judge, through their comments, applications or objections.

 
37. Stated in these terms, I believe the juge d'instruction is quite close to what a common law committal hearing achieves. His role is much more akin to that of a grand jury in a preliminary enquiry procedure. One could even claim that the slight on the presumption of innocence is lesser when made by a juge d'instruction than when it results of a committal by 12 jurors "good and true".

 
38. Now, to be honest, the institution is criticised and has been dropped by certain countries that formerly had it, such as Germany or Italy. But as far as I know, in Germany the investigative powers are referred back to the prosecution, which is not necessarily a progress for civil liberties. In Italy, the giudice per l'indagine preliminare -despite the proclaimed accusatorial nature of the recent procedural reform - seems to retain many of the characteristics of the juge d'instruction (but that would also call for more developed analysis). In France today, the debate is centered on the fact that the juge d'instruction has the power to order remand, and that he may therefore tend to abuse such power to extort confessions. The reform currently under discussion would simply do away with this power, transferring it to a juge des libertés, very much on the Swiss model. The result would be to retain the institution, but to create a further judicial safeguard by devolving major coercive measures to another bench judge. The difficulty then would be the risk of slowing down proceedings and taxing even more the limited manpower of the courts.
    
    

The French "juge de la mise en état"
 
39. The French civil procedure code defines [17] the role of the "juge de la mise en état" or "JME", literally the "judge for the ready-making". Just as the "juge d'instruction" will supervise pre-trial issues in a complex penal case, the "JME" will supervise the "loyalty of proceedings, and specially the timely exchange of briefs and evidence (art. 763 NCPC).

 
40. The "JME" enjoys almost identical prerogatives to those of an English district judge or High Court Master issuing directions. He will set down a schedule for exchange of argument, supervise discovery, and determine the date of the trial. But what is interesting in relation to the search for the truth, is that the "JME" may also put questions to counsel, hear parties or witnesses himself (in an adversarial in camera hearing), encourage parties to answer to points of law which seem to have been omitted in the debate, and generally put any question as to facts or law where he considers it necessary for the solution of the case. He may ask for all evidence to be submitted to him for perusal before the trial hearing. He may finally draft a report on the case for the collegial bench, stating his opinion. This report, which is of course communicated in advance to the parties, will usually serve to clarify issues and center the debate on the relevant points.

 
41. The "juge de la mise en état" enjoys further something akin to an English judge's prerogatives to grant interlocutory injunctions (somewhat along the American Cyanamid guidelines or the equivalent of Mareva injunctions), but on a very extensive basis. Any interlocutory decision is possible, where it has a bearing on the case. He may for instance order any provisional or restraining measure, decide on procedural objections or nullities, grant ad litem payments, order a provisional payment where the plaintiff's claim appears to be not seriously defensible, initiate, even of his own motion, any investigation measure (mainly court-appointed expert opinion; see below, evidence at trial stage), or order payments of costs. He is the judge responsible for selecting the procedural track the file will follow, which will be either immediate trial or extensive pre-trial procedure. His are very extensive powers, designed to eliminate as many issues as possible at earliest stage of civil proceedings, and failing which, to prepare the best possible "dossier" for the trial court. It is most interesting to note the similarities which appear from the reading of the proposals laid out in the recent Woolf report [18], specially in the suggestion leading to the setting up of different speed procedural "tracks".

 
42. To sum up the previous points, one can enlarge on Mr. Whitton's comment, to say that the search for material truth is indeed central to continental procedure. It is so much so that it has led to the setting up of specific pre-trial institutions precisely tailored to this end.
    
    

The judiciary at the trial stage
 
43. The common-law model of trial procedure is for the parties to lead the proceedings whilst the judge sits as a silent referee, with an intervention limited to settling procedural objections, and a few cautious questions. The continental systems are in their great majority based on a different principle: that of the search for the material truth entrusted to a presiding judge.

 
44. The trial judge has the duty to search for true facts (Denmark), for material truth (Greece), he follows the "principle of instruction" (Netherlands and Portugal). This duty entails a far more pro-active role.

 
45. The typical process of a continental criminal trial is the following.

 
• Preliminary procedural objections are settled first. The indictment is then read out to the accused. In Belgium, France or the Netherlands, the presiding judge summarizes the contents of the pre-trial "dossier" for the benefit of all parties, supporting this summary by direct questions to the accused. Then the other sources of evidence (witnesses, expert opinion) are examined. In other systems, the order is reversed, where evidence is taken first and the accused is then asked to state his position.

 
But continental procedure generally allows the prosecution, defendant and victim to intervene at any moment to ask further questions or correct any omission or misguided comment from the bench. Witnesses, if any, are required to state freely what they wish to declare and are then asked questions in turn by the bench, prosecution, defence and plaintiff.


• After evidence has been presented and discussed in this way, a precise order is followed for the final statements. From there on the judge remains mum. The victim starts by addressing the issue of civil compensation claimed (see below). The prosecution develops the penal side of the argument, and closes its statement with a suggestion for the appropriate penalty to be inflicted. The defendant's counsel is always the last to speak, having thus heard all the evidence and arguments presented against his client and being in a position to answer fully. Even in the presence of a jury, it would be a gross and intolerable violation for any person present, including the bench, to speak up after defence counsel. Continental procedure does not allow for "summing up", even in the presence of a jury.

 
• The judges generally conduct the trial. This means that questions are put by the presiding judge, acting on his duty to find the material truth, if necessary ex officio. This is the inquisitorial side of the continental trial. Questions may be "leading" in the English sense of the word, because they are put by the impartial judge who wishes to hear repeat orally what is already in the written dossier (Netherlands, France, Belgium), or simply by the prosecution (Italy). There is no cross-examination as such, put parties are of course always at liberty to put any question or make submissions to the court, which is the essence of adversary proceedings.

 
Interrogation must be fair, complete and impartial. The judge "polices" the hearing. He will specially take care to formulate his questions in an objective, impartial manner, as he is specifically trained to do. If he oversteps this rule, the aggrieved party will not hesitate to correct him. If the judge deems the evidence insufficient, it is perfectly possible for him to ask parties to produce additional evidence, order a further investigation before resuming the trial, or even collect evidence ex officio. Where cross-examination is allowed, the judge will specially be careful to prevent any hectoring of witnesses The continental trial is therefore certainly judge-led.


46. On the contrary, such interrogation in an accusatorial process is geared towards obtaining a given result from a witness, or conversely, from blocking or destroying an opponent's witness statement. Parties cannot be relied upon, in the continental view of things, to have an impartial approach of a witness's testimony. It is a source of doubtful admiration to see how much common-law lawyers' believe in their ability to "test" the credibility of a witness. One wonders if the purely accusatorial process is not relying too much on a subjective appreciation of the outward attitude of the witness. A hardened criminal may be telling the truth where the honest witness has a faulty memory but a great force of conviction.

 
47. The Italian exception has to be mentioned. Since the 1988 reform of criminal procedure, the judge remains passive whilst parties examine and cross-examine, more or less along accusatorial lines. But the scope of this exception is limited because the great majority of cases avoid de facto the accusatorial procedure.

 
48. The above comments are essentially dictated by an analysis of criminal procedure, which is deemed to be the most characteristic of the continental "inquisitorial" or judge-led system. Civil trials are less open to a confrontation between systems, because the parties do take a greater part in the actual presentation of the case. It can nevertheless be taken to certain extremes, such as in France, where, because of the extent of the pre-trial work of the "juge de la mise en état", it could be claimed that civil trials have almost disappeared. Evidence and pleadings are all reduced in writing and the actual hearing is limited to each party's counsel making a summarized presentation of what the judge will find in the respective files.

 
49. Does the continental system work? In other words, does the pro-active work of the trial judge reveal the truth in each case, and do the parties get a fair hearing? This calls for a study of the rules of evidence, which is a major point in Mr. Whitton's criticisms.
    
    

The Rules Governing Evidence
 
50. Here I will start again on the basis of common-law rules governing evidence. I believe that one may claim that these rules are essentially of an exclusionary nature. This is the central contention of Mr. Whitton, who seems to consider such exclusions as abusive, especially where it comes to the jury. But this is the essence of an accusatorial, or party-led procedure: the parties are the masters of the limits they choose to set to the freedom of the judge. The judge is impartial, but within given boundaries.

 
51. Juries in the sense of a panel of lay judges entitled to decide alone on a given issue do not exist in continental procedures. They are totally absent in civil proceedings. They are unknown in the criminal procedure of Luxembourg, Netherlands or Spain. Where lay judges are involved, it is always in the capacity of assessors of the professional judges, and therefore they cannot be denied any access to information. In fact there is a frequent tendency to be critical towards such non-professional participation, because of the lack of technical skills and the risk of emotional reactions. This is compounded by the fact that lay judges do not give reasons for their decisions, which is also a remark that may be directed at common-law juries.

 
52. This being said, the consideration of the rules governing evidence can be observed under four headings: the gathering of evidence, the weighing of evidence and the two special topics of expert opinion and the intervention of the victim in the criminal trial. This will lead to a few cursory remarks regarding evidence in civil cases.
    
    

The gathering of evidence
 
53. Of course the core of continental criminal proceedings rests on the presumption of innocence and therefore imposes the onus of proof of guilt on the prosecution. This central rule has to be stressed in view of the surprisingly frequent misconception in Common Law countries that the "Napoleonic" codes burden the accused with the demonstration of his innocence, toiling as he is supposed to be under a presumption of guilt.

 
54. The presumption of innocence predates the French Revolution and has been constitutionally affirmed by the 1789 French bill of rights [19]. Today, the presumption is universal and moreover enforced by art. 6-2 of the European Declaration of Human Rights, which is enforceable over the jurisdiction of national courts.

 
55. In contrast to civil law (see below), the continental penal law of evidence is not regulated in penal matters. There are no special rules on the way evidence may be collected or what should qualify as evidence in court [20]. It is a logical consequence of the duty to search for the material truth handed over to a qualified and impartial judge. In penal matters the facts may be proven in any way, and the judge accepts any element provided it has been lawfully obtained and the accused has had an opportunity to discuss it in court. Hearsay is not as such deemed inadmissible.

 
56. In France, Netherlands and Belgium, for instance, every scrap of evidence has to be put down in writing, thus building up the "dossier". This dossier is entirely disclosed to the defence before the hearing. The result is that the actual trial is much speedier, and only based on the evidence considered as relevant by the court and contending parties.

 
57. The problem of unlawful evidence only arises where it is likely to be detrimental to the accused. In continental law, unlawful evidence is that gathered by violating the law, e.g. through provocation, violence, violation of privilege against self-incrimination. In France or Germany, if the means of evidence are not restricted, very strict conditions are laid for the search and administration of proof. For instance, incriminating evidence found during an irregular search of private premises is inadmissible. Generally speaking, continental procedure prohibits all directly coercive measures to obtain evidence, as well as the use of agents provocateurs, the resort to lie detectors or narco-analysis (contrary to U.S. investigation practices). On the other hand it seems, at least in English case law, that evidence is excluded if unreliable, but not necessarily for the simple reason that it may have been collected unlawfully. This is apparently at the discretion of the court, which is not supposed to err towards the supervision of police activities. In other words continental courts generally apply what the United States procedure calls the fruit of the poisoned tree doctrine.

 
58. The presumption of innocence is enlarged by a general right to silence, even if Mr. Whitton contends that this protects only the guilty, and the correlated privilege against self-incrimination.

 
59. But the continental approach to these rights of the accused is maybe more cynical or realistic, according to the moral standpoint adopted, and sometimes goes very far. As a rule the accused does not commit an offence as such if he lies in the action of defending himself.

 
60. Especially he is not required to swear an oath when testifying[21]. It is a privilege for the defendant to use every means at his disposal, barring actual complicity of the defence counsel. The idea is that the judge has never any guarantee that he is being told the truth, but has to trust his wits and the hard evidence which the prosecution is supposed to be able to bring. Witnesses are not "tested" for "credibility", but simply heard. Of course, false testimony, if demonstrated, is an offence, whilst, if the accused is caught out lying, he has to expect an increased severity of the sentence. Experience shows on the whole that this more "relaxed" approach to the truthfulness expected of private parties and their private counsel does not result in a lesser number of convictions. Continental judicial philosophy is maybe simply more tolerant of human frailty.
    
    

The weighing of evidence
 
61. When it comes to weighing the evidence gathered, it could be said that Common Law criminal procedure boils down to testing admissible evidence rather than actually searching for the truth.

 
62. The governing principle in continental European systems is that of "immediacy"[22]. The idea is that the judge may only rely on evidence that has been orally debated in court during the course of the trial. This ensures that the "rights of the defence" are not impaired by having the case decided on an element that has not been subjected to an adversarial debate.

 
63. In Italy or Greece, no information for the pre-trial dossier may be used in court. In France, the dossier is greatly used to accelerate the procedure, and there are three categories of police records. Some records are almost completely binding when there are deemed to reflect the truth until proven as forgeries [23], others are proof until proof of the contrary is brought[24]. In fact these exceptions are limited to the demonstration of petty offences and are somewhat similar to policemen's testimonies under oath. The majority of police records only serve as information, which is not binding on the court [25]. Whatever their nature, the defence has a fundamental right to challenge their validity and contents. Elsewhere, even with the principle of immediacy, the judge may to a certain extent rely on pre-trial written evidence, on condition it always is subjected to an adversarial debate.

 
64. In Italy, the principle of immediacy has been enforced to a degree that the procedure is deemed quasi-accusatorial. The 1988 procedural reform prohibits the trial judge from knowing any evidence gathered from the prosecution pre-trial investigation. But exceptions to this accusatorial principle are numerous. Any element of evidence that cannot be repeated at trial may be obtained from the judge for preliminary investigations and be submitted to the trial judge. Most of all, the cumulative effect of the accusatorial rules would make the whole system unmanageable. So, in some 80 % of criminal cases, the law encourages the accused to accept summary judgment, "pattegiamento" an agreement between prosecution and defence on the penalty to be inflicted, or the penal order, all of which are procedures which circumvent the accusatorial rules. There is a compensation, whereby the accused sees his sentence reduced by one-third to two-thirds and avoids certain civil and administrative consequences of the conviction.

 
65. The second general principle found all over the European continent is that of the free evaluation of evidence, as a corollary for the search of material truth. In deciding on the merits the judge only relies on his "intimate conviction" [26]

 
66. The same measure of "intimate conviction" is to be found in art. 177 of the Greek C.P.P., art. 741 of the Spanish and art. 127 of the Dutch C.P.P..

 
67. For instance, a confession is a means of evidence similar in weight to another. It does not dispense the prosecution from the burden of proving the offence, just as it is not binding on the judge. Thus there is no "plea" of guilty or not guilty in continental criminal procedure, nor any consequence thereof on the rest of the proceedings. Generally speaking there is no room for plea-bargaining in the American sense [27]. In fact the Dutch code expressly prohibits to convict the accused on the sole basis of a confession. One may compare here with the requirement for corroboration set out in Scottish criminal procedure.

 
68. Finally, the freedom of the continental judge in weighing the evidence brought to him in open court is balanced by the fact that all his decisions have to be reasoned and lead to a written judgment. The judge has to indicate which fact was satisfactorily proven. He cannot simply enumerate the elements that have convinced him, but he must also discuss the probative value of each of them. By contrast, a common-law jury will not be asked to give reasons for its verdict, and the judge will relatively rarely write out reasons for his decision, even if he states them before sentencing. The continental rule that judgments are reasoned opens a check by the appellate court. Evidence cannot be treated arbitrarily, and may not reveal internal contradiction in the reasoning. Reasoning means that the defence knows exactly on what grounds the decision was taken. Virtually no limits are put on the right to appeal.
    
    

Expert opinion
 
69. To the continental lawyer a situation such as the Chamberlain case, quoted by Mr. Whitton, is largely due to the defects of expert opinion. Courts are always open to the risk of being misled by an expert's opinion, whose competence is difficult to challenge by the layman. In common-law practice, experts are party-appointed, following the logic of an accusatorial procedure. The prosecution expert sees his conclusions cross-examined on the basis of the defence's expert.

 
70. In continental procedure, experts are court-appointed. They share the same duty of impartiality as the judge. Their findings are for the court and not dictated by the wish to support one party's position. The reputation of an expert is not based on the number of cases he has helped "win". And certainly, it would be a disciplinary misconduct if he were to behave in a partial manner [28]. Experts are not encouraged to make a given finding but are selected on their reliability, i.e. their acceptance as competent and independent professionals by all opposing parties. Specially, it cannot be said that the prosecution has an undue advantage when confronted with an indigent party.

 
71. An added advantage is that the cost of expert opinion is much less in continental procedure [29]. They are paid out of State funds, which are usually not very generous, or, in civil cases, by the losing party. But their remuneration is under the court's supervision, which ensures they remain reasonable. In fact, experts are often encouraged not to make their major source of income from testifying in court, to preserve their independence and check their proficiency through successful private practice. One of the major advantages continental experts derive from their judicial work is to be able to publicize the tag "court-appointed expert" in their private practice. Private clients have a measure of quality assurance, whilst the courts hold on to a useful stick to keep experts in line.

 
72. Where a party is not satisfied with the expert's opinion, it is always free to criticize it, eventually by producing another expert opinion, and the court may resort to appointing a second official expert, or even several.
    
    

The intervention of the victim in the criminal trial
 
73. Whereas the victim has no legal standing in English or Irish criminal proceedings, other than that of a prosecution witness, the German "Nebenklaeger", the Belgian, French, or Greek "partie civile", the Italian "parte civile", the Dutch "civiele partij", the Portuguese "assistente" [30] are also parties to the criminal trial. This reflects both on the position of the prosecution which does not have to act in the defence of a private interest, but rather to defend the public peace troubled by the offence and act as a legal adviser to the court [31], and on that of the judge truly confronted with two private parties, the offender and his victim.

 
74. In this sense, continental procedure could indeed be said to be more adversarial in nature than the Common law one. The presence of the victim also allows to deal with the issue of civil compensation at the same hearing, thus accelerating judicial process in the interest of the aggrieved party. The principle is that of the identity of the penal and civil faults (see below comments on the rules of evidence in civil cases) which explain why continental lawyers have some difficulty in understanding the apparent discrepancy between the acquittal of O.J. Simpson and his being sentenced to pay civil damages by reason of an act he is not supposed to have committed. Or, to quote a recent British case, they experience a certain difficulty seeing the family of Joan Francisco be awarded damages from a person against whom the prosecution service itself considers there is currently insufficient evidence for a charge of murder [32].

 
75. The objection here is that the presence of the victim's civil action will create prejudice in the mind of the judge or jury against the accused, there being a sort of collusion against him made of the prosecution and victim. To which one may answer that

 
• there is no reason to hold back the whole truth of the case by showing the jury the extent of the damage inflicted upon the victim,
• the victim is very often brought to testify anyhow and the prosecution has a duty to establish the extent of the damage, and
• the plaintiff may not intervene in the determination of the penal sanction but stays within the boundaries of the civil action.

 
The advantages are immense in terms of costs and time wasted for all involved, as well as for the guarantee to avoid any inconsistency of decision.

Evidence in civil cases
 

76. The variability of standard of proof in the common law system is well know. But one could label the penal "beyond reasonable doubt" the 100 % conviction rule, whilst the civil "balance of probabilities" would be the 51 % conviction rule. Hence the discrepancies stated above.

 
77. On the other hand, the standard of proof required in civil and penal law in France is the same: the judge has to be convinced, without a shadow of a doubt, of a person's fault, be it penal or civil. In other words, there is in French law a direct relationship between the civil tort and the penal fault. The outcome is that where a civil and a penal action are concurrently pending, the civil case is stayed until the penal decision is taken. To avoid any delay for victims, they are given the possibility of joining their civil action to the criminal proceedings, which they do in the immense majority of cases. They enjoy the added advantage of seeing the prosecution doing the hard work of establishing proof of guilt - and footing the costs.

 
78. There are extensive rules governing the gathering and weighing of evidence in civil cases, which would be far too long to expose here. I will simply refer the reader back to the role of the French "juge de la mise en état" or to what has been said in respect of expert opinion, to support the idea that a civil trial is based on a strictly adversarial procedure. The emphasis is maybe stronger than in Common Law trials on the written evidence and the rules governing its admissibility.

 
79. A striking difference between French and British civil proceedings is that the great majority of the former end in a written and reasoned judgment, whereas the latter experience a considerable rate of pre-trial settlements. The suspicion here, fuelled by the reading of Lord Woolf's report, is that a great number of settlements in England are due simply to the cost of proceedings (see following section).

 
80. To close this section by coming back to Mr. Whitton's suggestion that "we abolish the rules for concealing relevant evidence", I would assert that civil law procedural systems do have a law of evidence. It addresses the subject matter from a different angle to that of common law proceedings, but it also practices the right to silence, the exclusion of evidence and therefore also pens the possibility for manipulation of evidence by lawyers. But it is true that the investigative duty the continental judge is held to discharge limits the extent of the risk, and that there is no limit on what he may hear, even if he later discards irregular evidence.
    
    

Remedies For a Faulty System
 
81. The image of the common-law judge inspires great respect in their continental counterparts, in terms of competence and experience. But one feels that a truly accusatorial procedure is too "luxurious" and costly to be offered to everyone. The great majority (some 90 % apparently) of English criminal cases are dealt with by magistrates using summary procedures and guilty pleas. In other words, the brunt of criminal justice is handed out by untrained judges without the benefit of full judicial process, and relies massively on confession rather than demonstration of guilt. Where the accusatorial procedure was explicitly chosen on the continent, such in Italy from 1988, facts show that the volume of cases (80 %) is dealt with by other means, leaving very much in doubt the radical affirmations as to the dominant feature of the system. On the other hand, the title of Lord Woolf's report "Access to justice" [33] clearly rests on the fact that a great proportion of the British public is denied access to civil courts because of the sheer cost of proceedings.

 
82. Mr. Whitton suggest a list of remedies. I have tried to comment on the issues of the search for truth and the rules governing collection and use of evidence. Two other questions remain to be addressed, that of training professional judges and of the cost of judicial proceedings.
    
    

The training of judges
 
83. A major remedy set forth by Mr. Whitton to the ills he describes is that "judges should be trained as judges from the beginning".

 
84. European professional judges are generally selected on the basis of a competitive examination testing their technical ability, and they are appointed by the Government after a variety of processes involving more often than not an opinion by a organ representing the judiciary. Space prevents the presentation of a comparative study here [34], but the French example can be considered as one of the most telling in continental Europe.

 
85. French judges (and prosecutors) are recruited by means of a competitive examination open to holders of an LL.M diploma. In fact more than half of the candidates hold a higher qualification at law. Selection is severe, some 2.500 candidates compete yearly for some 150 postings. The majority are university graduates, but around a third come from the civil service or private practice.

 
86. Upon being selected, the candidates become trainee judges [35], and are trained both in theory and practice for a period of some three years by the Ecole Nationale de la Magistrature [36] and in the various courts. I may personally testify to the fact that the training is of a high intensity, and carefully prepares the future judges for their first appointment. The training covers law and procedure, but also sociological, philosophical and social aspects of contemporary society. For instance, trainees are taught interviewing skills or given a good grounding in forensics. The "auditeurs de justice" also take the position of a trainee barrister for a minimum of two months, to get a taste of how things look from the other side of the bar. They spend more than half their time in practical positions, under the personal supervision of an acting judge.

 
87. It is therefore felt as somewhat abrupt to dismiss the end product of such an intensive selection and training as "naive" or "inexperienced" on the sole consideration of the physical age. It is true that on average, a French judge assumes his first job before he has turned thirty. But he also has an average of eight higher education years behind his belt before he is let loose on the unsuspecting public, of which some 12 months is practical training in general judicial skills and 6 months in the specialised area he is appointed to. Furthermore, the first positions held are of course first-instance ones, and all his decisions are made under the watchful eye of the appellate court. One has to add that judicial statutes impose a minimum of one week in-service training a year (in fact generally extended to two weeks). The result is a highly qualified professional, whose initial training lasts at least as long as that of a GP

 
88. On the whole, the system works satisfactorily. Experience is gained over the years, specially as the career system allows and even encourages geographical and professional mobility. After a few years practice, judges are more and more frequently offered the possibility of being temporarily seconded as legal advisers to various public institutions or administrations, or to serve abroad with the French cooperation service. The idea is to enlarge the experience of the judiciary as a whole to keep it in touch with the evolution of contemporary society. The receiving institutions benefit from the legal skills of the judges and get to know better judicial values.

 
89. By the time the French judge reaches the age of forty he has some 15 years experience of judicial functions, and still faces some 25 years in the judiciary. This is the age when judges in the common-law system are appointed to their first judicial positions. They enjoy the benefit of experience of course, but often in a specialised area, which was that of their practice, whereas they may be asked to judge in a very different one. Furthermore, training facilities seem only comparatively recently to have been set up, and certainly do not yet last the number of years afforded under the French system.

 
90. The result is that the French public has available a judicial corps that combines qualifications with a good cross-section of the various stages of life and social origins. Difficulties arise of course to ensure the combination of independence and a judicial career. Many efforts have been done and are still under way, but it is my contention that the situation is at the very least acceptable. Conversely, one will note the recent decision by the current Lord Chancellor to clarify the selection rules of English judges. It is furthermore arguable that a de facto "career" does exist for common-law judges, be it through appointment or election.
    
    

The cost of proceedings
 
91. When it comes to the cost of proceedings, for instance upon reading the examples given by Mr. Whitton, it can be safely said that continental procedure systems are much cheaper than common-law ones [37]. A telling indication is the fact that jokes on continental lawyers often turn around their alleged untruthfulness, whereas British advocates are derided for their financial appetites.

 
92. A fundamental yardstick for measuring the effectiveness of a given justice is indeed its accessibility in terms of costs. Here one has to stress objectively the considerable expense incurred by litigants in common-law procedures. The question is therefore whether the expenditure is commensurate to the service provided. And the answer, as stated by Mr. Whitton, is most probably no. The bottom line is that in continental Europe, the decision to go to court, although not cheap, will never be ruinous. In fact, my opinion is that many problems of case overload are generated in fact by the accessibility of courts.

 
93. Does the common-law accusatorial procedure at least justify its cost by giving better justice ? Here again, the answer seems negative. Consider for instance the very worrying recent report made by Amnesty International on the situation of Human Rights in the United States [38], or the number of applications made to the recently instated body in charge of investigating alleged miscarriages of justice in Britain. Again, one could quote the very extensive criticisms made by the Woolf or Glidewell reports [39].

 
94. I find extremely interesting the fact that "The Global 50", a survey of the 50 largest law firms in the world, ranked by size, lists 30 American firms, 14 British, 3 Australian, and 1 Canadian, whilst the continental-law firms are reduced to two, one Spanish (33rd position) and one Belgo-Dutch firm (43rd position). The lowest yearly income per lawyer (not per partner) is US$210,000 [40].

 
95. By comparison, the average net income of a reasonably successful French lawyer is approximately US$ 90,000, whereas one fifth of the Parisian firms are currently on the verge of bankruptcy.

 
96. So, whereas I would concur with Mr. Whitton that common-law proceedings generate excessive costs, I would also suggest that French lawyers are inadequately paid for their services. The result is "corner-cutting" work and an ever increasing volume of litigation "flogged to death", whilst the competition becomes more and more a cutthroat one. Certainly counseling is not as widely practised as it should be, nor early settlements. In other words, neither system seems really satisfactory. Ideally one would like to see British rates of settlement at French prices!
    
    

Conclusion
 
97. In the absence of reliable, comparable statistical data I will not venture to give an opinion on Mr. Whitton's claims that continental systems "put away 90 per cent of known serious criminals" or that "80 per cent of known serious criminals get off, but one per cent of prisoners are innocent" in the English system. I will simply note that murder rates (the type of offence where the proportion of unsolved cases is probably the lowest) are equivalent throughout Western Europe, or that the rate of imprisonment hovers everywhere around 90 detainees per 100,000 population [41].

 
98. The European Court for Human Rights, which devotes a lot of its caseload to criminal procedure on the basis of article 6 of the European Convention on Human Rights, has never expressed a preference for the "accusatorial" nor for the "inquisitorial" system, but its rulings are used to improve both of them. Another interesting international forum to test the relative strengths and weaknesses of common-law versus continental procedures, is the current evolution of procedures used by the international tribunal for crimes committed in ex-Yugoslavia [42].

 
99. My position as an outsider certainly disqualifies me in respect of Mr. Whitton's assertion that "the condition of the English system is terminal". I believe there are fantastic energies and competencies available to improve things. And it would just as certainly be very presumptuous of me to claim that the continental "inquisitorial" procedural system is the best. As one interested in comparative law, my conclusion is that each system should be scrutinised for its best performance and see its flaws improved by drawing inspiration from foreign experiences. But I will at last rest my case by asserting that the legal tradition I belong to has indeed something to say for itself, and even something to offer.

 
100. My final quote will be drawn from an article by HC Gutteridge, " The comparative aspects of legal terminology":

 
"The isolation of legal thought in national watertight compartments has always seemed to me to be one of the factors which is most prolific in producing that frame of mind which leads to a spirit of national egotism. We have much to learn from one another in legal as well as other departments of human activities, and it is, in a sense, a reproach to the lawyers of all nations that they have been unable, up to the present, to arrive at the free interchange of knowledge and ideas which has been attained in other branches of learning"[43]