How French detectives will build their case

UP to now, the only connection most people in Ireland might have had with the French judicial system was by way of the bungling police detective Jacques Clouseau in the Pink Panther series.

But that is likely to change as French detectives arrive in Cork on a most serious endeavour.

They are here to interview 31 people regarding the murder of Sophie Toscan du Plantier at her West Cork holiday home on December 23, 1996.

Q. What will the detectives be doing here?

A. Three detectives will be taking statements from people interviewed by gardaí. They will be joined by two forensic scientists from Paris who will examine evidence gathered by gardaí since the murder. The team, which will be assisted by Garda Chief Superintendent Tom Hayes and Detective Inspector Joe Moore, is expected to spend about a fortnight in Cork.

Q. Who sent them?

A. Paris-based Judge Patrick Gachon ordered the team to go to Ireland as part of the final preparations in a case being formulated in France against former freelance journalist Ian Bailey. Mr Bailey, 53, who was twice arrested and released without charge by gardaí in relation to the killing, continues to protest his innocence.

The French police are also expected to be given copies of Mr Bailey’s diaries so they can be shown to a psychologist whose subsequent assessment will form part of a murder trial scheduled to begin in Paris next year.

Q. Isn’t it odd that a judge should conduct an investigation?

A. Not in France. In Ireland, along with most common law jurisdictions, the activity of a criminal judge is confined mostly to the trial hearing, but in France a judge takes on an evidence-gathering role and, if sufficient evidence is gathered, the judge may decide to prosecute.

Q. What will the forensic scientists be doing here?

A. They are set to carry out a series of tests, including DNA, fibre and chemical analysis scans, in order to uncover clues as to the identity of Ms du Plantier’s killer.

Q. It all sounds like CSI West Cork. What are they likely to find?

A. Not a lot. Their work faces a major obstacle in that no murder weapon was ever found — and all tests to date have indicated no DNA samples were gathered by garda forensics other than those of Ms du Plantier herself.

Q. What is the situation regarding the extradition of Ian Bailey to France to face trial?

A. Mr Bailey is fighting a High Court order for his extradition. A Supreme Court decision is expected next month.

Q. If the extradition is granted can Irish witnesses be made to travel to Paris to give evidence?

A. No. The French cannot compel witnesses to travel — but they have offered to cover all their travel, accommodation and living expenses for any trial evidence.

Most of the witnesses have already indicated that they are willing to travel to Paris for the trial.

Q. Is the system of criminal law in France the same as in Ireland?

A. No. Ireland’s system is based on the common law, whereas France has a civil law system codified under the Code of Criminal Procedure, which contains 800 articles of law.

All French criminal cases are tried in one of three courts. Major crimes, such as murder, are tried in the Assize Court before a jury of between nine and 12 people and up to three trial judges. Less serious offences are tried in correctional courts, while misdemeanours are dealt with in contravention courts.

Q. What will happen to Mr Bailey if he is extradited to France?

A. He will go through the often tortuous process of the French criminal law system. French law recognises four types of investigations. These cover “flagrant” offences, “preliminary” investigations, identity checks, and formal judicial investigations performed by a judge. It is the latter that is being conducted by Judge Gachon.

Q. How will the trial — if it goes ahead — be conducted?

A. Like in Ireland, French criminal trials are oral and adversarial in nature. Pre-trial motions may be made either during a judicial investigation or at the beginning of a trial. The defendant is entitled to legal representation and is also allowed to review evidence and to cross-examine witnesses. However, most of the trial is conducted by the judge and the lawyers play a limited role.

Q. Is there such a thing as presumption of innocence in French law?

A. Yes and no. As a member state of the EU, France is obliged to comply with article 48(1) of the Charter of Fundamental Rights of the EU which states: “Everyone who has been charged shall be presumed innocent until proved guilty according to law.”

Furthermore, as a signatory nation to the Universal Declaration of Human Rights, France must abide by its provisions. Article 11 (1) says: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” This principle is enshrined in article 63(1) of the French Criminal Procedural Code.

“Presumption” in this context means that the burden of proving the criminal charge is on the state. However, unlike common law jurisdictions such as Ireland, Britain and the US, where criminal trials are conducted in an accusatory manner, in France the judge acts the role of inquisitor. This often dilutes the presumption of innocence, in practice.

“I think our procedure does not really respect the presumption of innocence,” says Antoinette Perrodet, an associate professor of law at the Sorbonne in Paris and a former lecturer at the University of Cambridge.

Speaking in the context of the arrest of Dominique Strauss-Kahn, the former IMF chief, in New York, she said: “I think the American procedure is much more respectful of the presumption of innocence than the French procedure. I think your procedure has dual qualities of efficiency and respect for the presumption of innocence, because of its accusatory nature... the procedure of criminal investigation we have here has many fewer guarantees as far as the presumption of innocence is concerned. It’s an inquisitive procedure, still.”

France is also constrained under the European Convention on Human Rights, article 6(2), of which states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

However, the French have already been found to have breached the convention in this respect, as a 1995 case illustrates. In a verdict delivered by the ECHR on February 10 of that year, the court ruled that the presumption of innocence is a right which “must be interpreted in such a way as to guarantee rights which are practical and effective, as opposed to theoretical and illusory”.

The ruling stated that the presumption of innocence will be violated “if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law”, and it is sufficient, “even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty”.

Q. Does the presumption of innocence include a right to remain silent?

A. No. Article 116 of the French Criminal Procedural Code states that the right to remain silent is granted only during the judicial investigation. There is no right to silence during the investigatory detention and interrogation conducted by the police.

Q. Can past behaviour be used in evidence in France?

A. Yes. Under French law, a suspect’s previous behaviour forms part of a police investigation in France and is admissible in evidence in a French court. It is also open to a French prosecutor to present evidence of behaviour after a crime if it reveals something of the character of the accused.

Q. Is the French judge aware of any such evidence against Mr Bailey?

A. Yes. Judge Gachon has asked gardaí for access to Garda files on assaults by Bailey on his partner, Jules Thomas, both before and after the murder of Sophie Toscan du Plantier. While both were the subject of Garda investigations, only one led to a criminal prosecution of Mr Bailey. Nevertheless, both assaults can be put to the trial jury who, in turn, can use that knowledge in reaching a decision.

Q. What is the sentence for murder?

A. Under the French penal code, murder is defined as the intentional killing of another person. The last death penalty for murder was carried out in France in 1977 and it was abolished in 1981. Unlike in Ireland, there is no automatic life sentence. Murder is punishable by a maximum of 30 years in prison, except where the victim is a child, a police officer or from another special category, in which case the sentence is life.