Letter of the Law
Efficiency or Human Rights?
By R. A. CLINE
IT would be a pity if the recent speech by Lord Shawcross on the rights of persons in custody resulted in no more than a short-lived debate on the respective merits of the English and continental systems of investigating evi- dence. His speech was intended to be a ballon d'essai. It fulfilled a very useful purpose in bring- ing to the surfgce a sentiment about the English legal system which is more widely held than admirers of our law like to admit. Many lay- men look upon our system, with an affectionate but deep misgiving, as a sort of game which only the lawyers understand and which ultimately benefits the criminal and his hired defender. But here was an eminent lawyer who should know, giving voice to views which appeared to lend support to such misgivings. There was more than a hint of Beeching about them, of sweep- ing away cobwebbed obstacles which at present make England a paradise for the criminals.
The approving nod which Lord Shawcross gave to the French method of investigation may be imitated by people who are wholly unaware of the implications of what they are doing. It may suggest that the French system combines efficiency with the maintenance of freedom and fair play. But does it? It might be as well to take a quick glance at the way that system works. • Under the French law, if a policeman suspects that a man can 'help him with his inquiries'— to use a phrase which English newspapers fondly believe protects them from the dangers of libel —he may take him into custody for question- ing for twenty-four ,hours and if he needs an extension of that period the police officer can apply to a magistrate to grant him one. At the end of these two days the officer either aban- dons his questioning or, if he feels that it is worth pursuing, he invites a magistrate to take over the proceedings. The latter is the juge d'instruction to whom Lord Shawcross referred in his speech. He will be familiar to readers or watchers of Maigret—the legal gentleman who is there at the elbow of the great detective urging him on and inquiring about results.
The juge d'instruction has wide powers. He can interrogate anyone he considers able to give use- ful informatioa; he can follow up any clue; he can examine or indeed 'cross-examine,' that is to say, put hostile questions to the man who is suspected. In this way he builds up his dossier. At this stage there are two features of this pro- cedure which an English lawyer would find surprising, however keen his desire to clear up the criminal world. In the first place, one of the basic rights of English law finds no sym- pathetic recognition in France: a man may be compelled to incriminate himself by his answers —indeed, if he were protected from self-in- crimination, the procedure would grind to a halt. It is important that those who are tempted by the attractions of the inquisitorial French method should recognise that they are turning their back on this basic right. Perhaps this will create no frissons in Beeching hearts, but it is worth while remembering that in the United States at the height of the hunt for Communists, when the Fifth Amendment (which incorporates the English rule as to non-self-incrimination) was being constantly invoked by the victims of McCarthy, neither he nor anyone else could re- move this constitutional obstacle in their path. The desire to net Communists has always been fervent in the hearts of Americans, but their reverence for this troublesome rule is more fervent still.
Secondly, when the magistrate is engaged in his examination, the suspect and any other wit- ness examined have no right to be represented by a lawyer, though the latter may stand by in court. There is much cynicism abroad in England at the moment about lawyers, but no innocent person who has stood in danger of being found guilty would deny that in such moments of emotional stress the right of repre- sentation by a dispassionate professional is more than a textbook doctrine. In France the suspect may be questioned by the magistrate on any number of occasions; his answers will be en- tered in the dossier.
An inquiry of this kind may take many months. A year may pass before the dossier is completed, during the whole of which time sus- picion has rested and is known to his neigh- bours to have rested on the subject of the dossier. Finally, the magistrate decides that there is sufficient evidence upon which to arraign the suspected man at the assize court. The magistrate hands over the dossier, his task done. Now, in this context, it must be evident that the accused starts with a huge handicap. No one could genuinely pre- sume his innocence at the outset of his trial. He would not be there but for the intensive and finally successful efforts of the inquisitorial magistrate. The dice are loaded against him. The central purpose of the French system is to ascertain the truth. The English criminal pro- cedure provides a complete contrast: as Lord Shawcross pointed out, it is principally con- cerned with fair play and only secondarily with finding out the facts. And so the judges laid down certain rules for the guidance of police officers when the latter took a suspect into cus- tody. These rules offer a counsel of perfection which calls for enormous self-control on the part of a sorely-tried policeman. Once he has made up his mind to charge the man in his custody he may not interrogate except to clarify the man's previous answers. Again, he must caution a man who is on the point of making a confession. No one can be compelled to go to a police station at all (unless arrested).
As to not incriminating himself, it was not until 1898 that the English criminal was per- mitted to speak at all in order that he should not condemn himself out of his own mouth. Today he can. If he has not already 'confessed' to the crime with which he is charged, the accused stands a very high chance of acquittal, particularly in the case of motoring offences. In fact, the old, somewhat hackneyed phrase con- tinues to hold sway: better that ninety-nine guilty men should be acquitted than that one innocent man should be convicted.
And that, say the critics, is just ace point. Crime is increasing; the criminal is more sophis- ticated; he does not need the protection of the ancient rules since he is no longer illiterate, and it is wrong that ninety-nine or even nine guilty men should go free. The outburst (where it occurs) of physical assaults by the police is, it is said, a misguided attempt to redress the weak- nesses of legal procedure. It is certainly no answer to say that crime is not increasing. What- ever the statistics may say, violence and theft (in trains, on football pitches) is no longer some- thing one reads about; it is an ordinary feature of urban life. The statistics in any case deal only with detected crime and incidents of criminal behaviour where a charge is actually made.
In answer, it should first be said that 'rough- ing-up' by the police is not peculiar to the Common Law countries. The continental police
are by no means innocent of such treatment; in France it is described as le passage a tahac.
Secondly, it is simply not true that an investi-
gation conducted fairly and in accordance with the spirit of the Common Law does not result
in success. If society as a whole lends a hand to the police by giving them free and accurate information and giving evidence in court, they can achieve results. Indeed, by using force or threats of force the police can jeopardise the very success of the prosecution which they have set on foot. But a society which is disposed to turn away from the scene of a crime ('leave it to the police—it's their job') produces the sort of climate in which the Mafia prospered. Hence the English rule that it is a crime to conceal a felony. The fact is that any given society gets the amount of crime it deserves.
The juge d'instruction is a police investigator. The EngHill magistrate is an umpire between prosecution and defence; to underline this last point, the police courts are now called magis- trates' courts. It must be clearly recognised by advocates of the French procedure that the English judge would be called upon to play a wholly new and partisan role—all in the name of efficient investigation. But the gravest argu- ment of all against the suggested innovation is the hardest to formulate. The phrase 'fair play' cannot now be used without a sense of em- barrassment, such is the change in the moral climate of English life. But the whole of our legal procedure—whatever its application in practice—was built up on that basis, on a :on- cept of equity and justice in criminal trials which is concerned with human rights first and the detection of crime a bad second. A more efficient system would be a less humane one. Criminals themselves have no time for human rights (ex- cept their own); they admire efficiency. The real danger of more effective procedures is that whereas the investigation of crime has as its final purpose the protection of society, the sock; y it protects will itself be changed by the abandon- ment of the old and by no means perfect pro- cedures. In the end the criminals will have ss on the day.
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