The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure

Abstract

The focus of this paper is on the rights of the defence during the pre-trial stage of criminal procedure. Although the trial is the public setting in which the case is determined, the character of the pre-trial process has a determinative influence upon the nature of the evidence presented at court and indeed, the decision whether or not a trial takes place at all. I would like to offer some observations on recent changes that have taken place in two quite different legal systems – that of France and of England and Wales. These are, of course, only two examples of systems rooted in inquisitorial and adversarial procedure respectively. They are not paradigms. Despite the tendency of many Anglo-American commentators to speak of ‘inquisitorial’ or ‘continental’ procedures as though they are homogenous, there are important differences between the French criminal process and that of say Germany or the Netherlands. Similarly, England and Wales, although sharing many procedural values with the USA, is also quite different from it in many respects.