Politics
Fair's fair, unless you're French
Published 14 June 1999
Lionel Jospin wants his country's justice system to be more like ours. That would involve getting rid of the legacy of the inquisition
The other day at the famous Pere-Lachaise cemetery in Paris a British admiral who defeated Napoleon had his tomb ceremonially freshened up. It struck me as odd that Admiral Sir William Sidney Smith, who, frankly, rates a column in London not much shorter than Nelson's, should lie buried in Paris. Odder still that French and British naval braid both came to rededicate the tomb. But nothing is straightforward about relations between the French and the British, as the admiral knew. Having stopped Napoleon at the siege of Acre (1799) and prevented him from taking over the Levant, Smith acquired a fondness for France and settled in Paris. This must have been considered an outrageous thing for an establishment figure to do in those days, given Boney's reputation, and Smith paid for it. No one offered a home burial to the man who saw off Napoleon before Nelson and Wellington did.
This only confirms that relations between France and Britain are not built on fairness, because what is fair in the eyes of one isn't always fair in the eyes of the other.
Fairness and justice may be principles to which both nations subscribe, but we play by different rules. At least France seems aware of the problem. Even as Jack Straw considers undermining the trial-by-jury system, Lionel Jospin's left-wing government is retraining that puzzling beast called French justice to make it a little more like ours. But only a little. The issue is the right to be assumed innocent until proven guilty. French justice pays formal lip service to this fundamental concept of fairness, but what happens in practice is the very reverse. "Murderer caught," runs the classic French headline when a suspect is taken in for questioning.
Part of Jospin's remedy is to restrain the juge d'instruction - the investigating judge - described by Napoleon as "the most powerful man in France". The task of this state functionary is to make a suspect confess. To land a confession the judge can imprison a suspect for months, years even, without trial. Never mind evidence. A judge's "intimate conviction" of guilt is enough to keep a suspect behind bars. It is common to detain suspects for as long as they would have to spend in jail if they were convicted. When a juge d'instruction is not on the case, the police, too, can hold a suspect without a defence lawyer getting a chance to intervene. All this puts pressure on the suspect. It is meant to: pressure brings confessions.
The French system is rooted in the medieval inquisition, in which confession carried more weight than proof. France has stuck with it, rather than move towards our Anglo-Saxon accusatory model with its habeas corpus provisions. In the accusatory system the burden of proof is on the police to bring suspects to justice, while defence lawyers are entitled to intervene as soon as a person is detained. The Jospin government is reluctant to go Anglo-Saxon because British police are deemed to be subject to insufficient control, which may explain the surfeit of appeals landing from Britain at the European Court; and because the emphasis on defence lawyers often means the rich go free and the poor go behind bars.
One way Jospin aims to curb Torquemada's heirs is to take away their power to imprison suspects. The proposed solution is to create a new breed of judges with the specific task of deciding on pre-trial detention; to place shorter time limits on such detention; and to ensure that defence lawyers are involved from the outset, not grudgingly allowed to do their job long after investigating judges, or police, have questioned a suspect's brains out.
The risk Jospin runs with his reform is that it may look like an attempt at a cover-up. The judiciary has often been sneered at as the puppet of the government, which is not suprising when a long line of justice ministers has taken the office to mean telling judges what to do. Lately, though, judges have assumed their rightful independence and are enjoying it. The liberal Elizabeth Guigou, Jospin's justice minister, refuses to meddle.
The result has been the judicial pursuit of hitherto untouchable rogues in politics and business, among them Roland Dumas, an ex-foreign minister disgraced by a corruption scandal. It is hard to feel sorry for Dumas, but should he be cleared when and if he comes to trial, it won't restore his name. Never has a public figure been so widely and so publicly assumed guilty. Jospin isn't thinking of protecting Dumas, a fellow socialist; but the clipping of the investigating judge's wings may give that impression.
Back to Admiral Smith. Why did French as well as British naval braid meet to honour Napoleon's nemesis? A florid speechmaker went on about the French and the British loving each other even when they are at war. Rubbish. We don't love each other even in peace. But in our contradictory ways we aim to be fair. The French navy was present because it admired an enemy who had the good sense to feel at home in France. No one could say Smith wasn't fair-minded, either. Before he stopped Napoleon he was captured by the French and confined to a dungeon for two years. I imagine his inquisitors went easy on him.
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