NCJ Number
89672
Journal
International and Comparative Law Quarterly Volume: 31 Dated: (July 1982) Pages: 488-512
Date Published
1982
Length
25 pages
Annotation
The label accusatorial or inquisitional has lost its meaning in the pretrial stage of criminal justice, as systems in England, Scotland, and France are following similar patterns whereby the courts and legislature condone police illegalities in detaining suspects for interrogation.
Abstract
Although the literature on French criminal justice suggests extensive judicial supervision of the police investigation of crime, the police actually have wide powers of detention for questioning. Moreover, the 1981 Law on Securite et Liberte increased these powers by extending the period a suspect can be detained for questioning and giving police general authority to check an individual's identity to preserve public order. Scotland's accusatorial criminal justice system contains many inquisitorial elements, but police could not arrest a suspect until they had enough evidence to charge him or her until the Criminal Justice Act 1980. This law authorizes detention of suspects up to 6 hours, and although suspects are cautioned about their rights, they cannot speak to anyone or consult a solicitor. In practice, the police in England and Wales have greater powers of detention for questioning than the Scots and at least equal power to the French police, but with fewer constraints and greater autonomy. Recent proposals of the Royal Commission on Criminal Procedures do not impact the powers of interrogation, but do recommend some control over the period of detention in recognition of existing practices. Many incorrectly assume that the right to silence is an essential element in the accusatorial system, when in fact it offers no protection to the innocent since it increases police suspicion and appears to benefit only the guilty. The paper contains 116 footnotes.