Abstract
Hodgson is well established in the field of comparative criminal justice, having previously undertaken extensive empirical work in different European criminal justice systems, focusing specifically on matters such as defence rights (Blackstock et al., 2014; McConville et al., 1994), fair trials more generally (Hodgson, 2005), and miscarriages of justice (Belloni and Hodgson, 2000). Her latest monograph, The Metamorphosis of Criminal Justice – A Comparative Account (Oxford University Press) builds on her considerable research expertise in the area of European and comparative criminal justice.
The book generally focuses on a comparison of France and Britain (or more specifically, England and Wales); however, other jurisdictions are drawn upon to illustrate particular arguments. The book is divided into four parts. Part 1 analyses inquisitorial and adversarial procedural traditions and identifies legal reform trends in England and Wales, and in France. The impact of those trends on the prosecutorial function is then discussed in Part 2. Part 3 considers the defence role in police custody as the locus of important changes prompted by European decisions (both from the European Court of Human Rights and from the European Union), especially in systems within the inquisitorial tradition. Finally, Part 4 explores criminal justice systems’ responses to miscarriages of justice. I will now outline each part in turn.
In Part 1, Hodgson starts her analysis by reflecting on the adversarial and inquisitorial models of criminal procedure. The adversarial and inquisitorial categories contributed to the birth of comparative criminal justice as a transnational field of study and the distinction remains central to contemporary scholarship in this area (Langer, 2016). Hodgson casts adversarialism and inquisitorialism as legal cultures or values, rather than labels for existing systems. In so doing, she finds herself in line with a growing consensus in comparative scholarship which takes a broad approach to comparison of justice systems as embedded in a comparison of legal cultures (see Nelken, 1997, 2000, 2004). As argued by Legrand (1996), law is first and foremost a cultural phenomenon (see also Glendon, 2018). Adversarialism (in England and Wales) or inquisitorialism (in France) do not describe any existing system, nor can they be strictly defined categories (Field, 2009), but they are useful theoretical tools to explain enduring differences between modern western criminal justice systems (Langer, 2004, 2016). Hodgson takes a fresh look at these familiar categories through various contemporary lenses: the guilty plea, a widespread legal borrowing from the adversarial tradition; the appeal of adversarialism to states seeking to reform their whole criminal justice system; the hybrid procedure adopted by international criminal tribunals; and European (European Union and European Court of Human Rights) influences on the criminal procedures of their member states.
The book then goes on to examine recent trends in criminal law and justice. Although France and England and Wales are the focus of the inquiry, reference is made to other jurisdictions where similar trends are present. The two main trends examined by Hodgson are the rise of two concerns in criminal justice processes: efficiency and security. Similar developments can be observed in France and England/Wales. While legal reforms in the 1990s and early 2000s were designed to improve procedural fairness, more recent developments have put efficiency at the forefront of criminal justice policy, as an end in and of itself. In both jurisdictions, security concerns, in particular in relation to terrorism, have justified extended police powers, new broadly defined criminal offences, and the rise of administrative procedures instead of criminal investigations. The focus on efficiency and managerialism in criminal justice has been a concern for academic research both in England and Wales (e.g. Brownlee, 1998; Fionda, 2000; McEwan, 2011; McLaughlin et al., 2001; Raine and Willson, 1997; see also Bohm, 2006 for the US) and France (e.g. Alt and Le Theule, 2011; Gautron, 2014a, 2014b; Gautron and Retière, 2014; Lenoir and Gautron, 2014; Vigour, 2006) for many years. The same can be said of the shift from justice to security (e.g. Alix, 2014; Garland, 2001; Salas, 2005). Hodgson expertly brings together these scholarly discussions in different jurisdictions to demonstrate the cumulative impact of these trends on criminal justice systems. She compellingly argues that core values of the adversarial and inquisitorial traditions have been displaced by concerns with managerialism, efficiency, and securitisation. Her analysis shows that these trends are not exclusive to one jurisdiction. Instead, concerns over efficiency and security have been influencing most, if not all, western criminal justice systems over the last decades, whether from an adversarial or inquisitorial tradition.
In Part 2 of the book, Hodgson analyses the impact of the trends as identified in Part 1 on the function of public prosecutor. Public prosecutors play a central role in managing the flux of criminal cases and this gatekeeping role has been magnified by the irruption of efficiency to the forefront of criminal justice systems. Hodgson sets out the context in which public prosecutors work in each procedural tradition: their status and role, their relationship with the police, their accountability channels, etc. Although the contexts in which public prosecutors operate are very different, managerialism has produced similar, yet contradictory, effects on public prosecution services in both France and England and Wales. Public prosecutors have seen their powers being expanded with more cases being diverted away from traditional trials and judicial disposals, while at the same time their professional discretion was limited through routinisation and standardisation, due to a focus on more minor offences.
In Part 3, the book examines the role of defence lawyers at the police station. It sets out the recent development of custodial legal advice at the European level, both through judgments of the ECtHR and through EU directives, outlining the difficulties of implementing this right in practice across different jurisdictions. Hodgson focuses on four jurisdictions: two jurisdictions from the adversarial tradition (England & Wales and Scotland) and two from the inquisitorial tradition (France and The Netherlands). She highlights the challenges in implementing common standards from ECtHR rulings and EU directives in jurisdictions with different legal cultures, thereby resulting in different interpretations of the same norms. Although Hodgson identifies specific cultural barriers to the implementation of the right to custodial legal advice in systems with an inquisitorial tradition, she underlines that other factors are important in new rules/rights being implemented, even in systems with an adversarial tradition where the role of the defence lawyer is supposed to be more culturally embedded. Thus, she argues that the success of the right to custodial legal advice hinges more on time than on procedural tradition: ‘It is because custodial legal advice has been in place for thirty years in England and Wales that it is a relative success – not because it is an adversarial-type procedure’ (p. 208). This leads her to suggest that legal actors need time to ‘digest’ the new rules: defence lawyers need to grow into their new role in the investigation and investigators need to accept these new defence rights.
In Part 4, Hodgson starts by examining common features of miscarriages of justice in jurisdictions across the world. She discusses the failures of the French criminal justice system in handling the Outreau case. 1 The case is analysed as a challenge to the instruction procedure (the French judicial investigation), and through it, the inquisitorial tradition as a whole: ‘[t]he case went to the heart of the inquisitorial ideal, the functioning of the judicial investigation through the iconic instruction’ (p. 267). Despite striking at the core of the inquisitorial model – or perhaps precisely for this reason – the Outreau case did not result in systemic reforms in France, but rather in some marginal tampering of the inquisitorial nature of the process.
The book then examines the role of the Criminal Cases Review Commission (CCRC) as an inquisitorial body operating in an adversarial context: both trial and appeal processes are adversarial. This part of the book ends with an evaluation of the role of the defence lawyer as an adversarial actor working within the context of the CCRC review, undertaking investigations in an inquisitorial style. Hodgson brings her knowledge of the French instruction procedure to consider a way to include defence lawyers into an inquisitorial investigation, with the defence lawyer cooperating with the investigation instead of competing with it. This part of the book can at first appear out of place with the other parts. However, the significance of adversarial and inquisitorial traditions acts as the narrative thread of the book. As an inquisitorial investigative body operating within an adversarial tradition, the CCRC is an interesting object of study when thinking about those traditional categories. As an inquisitorial-like body, the CCRC has cut itself off from the partisanship of defence lawyers. Yet, it still struggles to unshackle itself from the influence of the (adversarial) appeal process, in particular the Court of Appeal’s trust in the jury and its reluctance to overturn convictions.
Hodgson’s focus in this book is on legal and political changes within criminal justice systems in France and England and Wales. The book does not present new empirical findings, but it builds on previous empirical studies and synthesises information on a broad range of legal reforms and professional practices across several jurisdictions. Hodgson leaves us with a somewhat depressing vista, pointing out that the main shift in both criminal justice systems is towards efficiency and managerialism, at the expense of justice. There is little prospect of change in the future: ‘with finite and decreasing resources a broader investigative approach that is slower to discount weaker leads will inevitably be seen as inefficient, wasting time and money’ (p. 345). Adversarial and inquisitorial values that are perceived to be at the core of criminal justice systems have been undermined by the surge of efficiency and security as new objectives for criminal justice processes over the last decades.
This highly readable book is a valuable contribution to comparative criminal justice scholarship. While in her previous monograph on French Criminal Justice, Hodgson (2005) emphasised the differences between adversarial and inquisitorial systems, this new book underlines the similarities in recent developments of the French and the English/Welsh criminal justice systems. In 2005, she warned against the fetishisation of the French investigative judge and the temptations to implement inquisitorial concepts such as judicial supervision of criminal investigations into the English/Welsh criminal justice system, without a proper understanding of the practical realities of such concepts in France. In 2020, Hodgson shows that these jurisdictions share common concerns which inevitably impact on legal reforms and, further, on the very nature of their criminal justice systems. The book points out that European criminal justice systems are not only shaped by traditional adversarial or inquisitorial influences but also by wider domestic or international political shifts which cut across social institutions, from healthcare or educational systems to justice systems.
