Investigations into White‐Collar Offences and the ‘Sick Man’ of France

Abstract

In England and Wales the Crown Prosecutor is a lawyer who is independent from the investigation and is charged with assessing evidence and evaluating whether a prosecution should proceed or not. The CPS is intentionally authorised to override the decisions of the police to curb any potentially over‐zealous investigations and evidence gathering that might subsequently tarnish the standards of procedure in the courts when applying the criminal law. The increasingly burdensome rules of disclosure have made demands on the CPS which are akin to the overall requirement on the investigating magistrate of civil law jurisdictions to find the truth by examination of the prosecution and defence evidence. The recent moves to return a limited number of lawyers to police stations is a further indication that the future role of the CPS may include an active rather than solely passive role in evidence gathering. The Serious Fraud Office are directly involved in the investigation and prosecution of complex frauds. This office has statutory and judicial authority to conduct investigations which follow an inquisitorial rather than accusatorial model. The juge d'instruction in France has authority to direct and control police investigations and subsequently to compile a dossier of evidence for presentation before a trial court. This paper points out that there are close parallels emerging in pre‐trial procedures in England and Wales and in France and the criticisms of the role of the investigating magistrate, the ‘sick man’, may hold lessons to be learnt for investigators and prosecutors within this jurisdiction.