1. The Russian reforms are discussed in B Rabatel ‘La Procédure Alternative en Russie’ Gazette du Palais 22–23 April 1984, pp 11–13.

2. See (1992) 142 NLJ 995. See generally Noda Introduction to Japanese law (1976, Tokyo) pp 137–8; H Oda Japanese Law (1992, London) pp 77–9; M Urabe ‘A Study of Jury Trial in Japan’ in H Tanaka (ed), The Japanese Legal System (1976, Tokyo) pp 483ff. For subsequent history, see Opler Legal Reform in Occupied Japan: A Participant Looks Back (1980, Princeton) esp pp 146–7.

3. Henceforth referred to as Le citoyen.

4. The published papers appeared in Martinage & Royer (eds) Les Destinées du Jury Criminel (1991: Hellemmes-L Espace Juridique).

5. Whether such a thing can be achieved at all seems open to very grave doubt. Possibly, Françise Lombard, whose work is discussed later in this paper, comes closest to attaining this objective, but still falls short. See esp notes 20ff and related text.

6. Much of this research was summarised in Hans and Vidmar Judging the jury (1986, New York). It should perhaps be emphasised that some, and possibly many psychological studies, which certain lawyers now seem prepared to accept almost too readily, may need to be viewed with considerable caution. See, eg Vidmar's recent (and rather surprising) conclusions in ‘Empirical Evidence on Deep Packets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases’ 43 Dick L Rev 217 (1993).

7. Some of the more recent accounts are noted in Munday ‘Réflexions Historiques et Comparatives sur le Procès par Jury’ in P Legrand (ed), Common Law d'un siècle à l'autre (1992, Montreal) pp 497–8.

8. The experiment is described in M McConville ‘Shadowing the Jury’ (1991) 141 NLJ 1588.

9. See Zander and Henderson The Crown Court Study (1993, HMSO). The jury findings were summarised in Zander ‘The Royal Commission's Crown Court Survey’ (1992) 142 NLJ 1730.

10. Code of Penal Procedure, art 304. Breaches of this article are punished under art 378 of the Penal Code. Proceedings are only rarely brought against jurors: I believe that there have only been two successful prosecutions brought since the Second World War. However, the procureur de la République of Nice has announced his intention to launch proceedings against the (as yet) anonymous jurors who in February 1994 gave information about their deliberations at the trial of Omar Raddad. He may also proceed against the magazine in which these revelations appeared should it emerge that the journal incited the jurors' breaches of art 304, Code of Penal Procedure: see Le Monde, 16 February 1994, p 26.

11. ‘Jury Trial, Continental Style’ (1993) 13 LS 204.

12. Procédure pénale (1991, Paris) 6th edn, para 41. Pradel was taken to task on this issue at the Poitiers conference by Mme Dubreuil, a prosecutor from Paris (Le Citoyen, p 107). He did not attend the Paris colloquium and no reference was made there to his opinions on the matter.

13. For an account of this case, see Munday ‘The Lamp that Shows that Freedom Lives' in France: the Trial of Mme Gamier (1993) 157 JP 339.

14. The problem is not unfamiliar in Corsica: see Munday ‘Jury Trial, Continental Style’ (1993) 13 LS 204 at p 215, note 59. Even when the Corsican assizes are held, the acquittal rates Or proportion of cases where only light punishment is handed down-in 1991, 66.5% at Bastia and 75% at Ajaccio-far exceed those found elsewhere in France.

15. The conditions of eligibility of French jurors are set out in arts 255–258 of the Code of Penal Procedure.

16. Such a reform was canvassed by Professor Pradel in Poitiers (Le Citoyen, p 22). Jurors, specially selected for the task, enjoy a particular place in French history. That most infamous of tribunals, the Extraordinary Criminal Tribunal, which sat during the Terror, between 1793 and 1795, was manned by jurors: see generally G Lenôtre Le Tribunal Révolutionnaire (1908, Paris) passim, J-F Fayard La Justice Révolutionnaire: Chronique de la Terreur (1987, Paris). This unhappy interlude is also discussed in Munday ‘Justice and terror: the role of the French revolutionary lawyer’ (1989) 153 JP 324 and in Imbert, ‘Les Jurys Criminels sous la Terreur’ in Martinage & Royer (eds) Les Destinées du Jury Criminel (1991, Hellemmes) pp 1929–1938.

17. Le Citoyen, p 47.

18. Quoted in Pourcher, ‘Des Assises de Grâce?’ Le Jury de la Cour d'assises de la Lozère au XIX^e siècle, Ètudes Rurales, July–December 1984, pp 172–3.

19. This is always likely to be the problem when former jurors' views are solicited. In England, if one selects the example of Barber and Gordon (ed), Members of the jury… (1976, London), the initial response to the editors' call for manuscripts was poor. Eventually a sizeable proportionof those who contributed were members of the Writers' Action Group, hardly a representative slice of jury membership (p 3).

20. Les Jurés: Justice Représentative et Représentations de la Justice (1993, Paris).

21. Eg Le citoyen, p 71. The lack of complaint is confirmed by Lombard, who found, intriguingly, that the issue of remuneration was only adverted to by the very poorest jurors who fell into a subgroup in her study which derived intense pride from the fact that ‘un Français moyen’ could thus rub shoulders with the great and the good could participate for once in the exercise of power, and thereby could become identified with the collective state enterprise of administering justice at the assizes: op cit, p 129. Neither sample, of course, could take account of those citizens who choose to duck out of this civic chore and for whom the low level of compensation might be a critical consideration.

22. Code of Penal Procedure, art 288; a prison sentence can be incurred if one presents the court with a false excuse: Penal Code, art 236.

23. Jury absenteeism is not a uniquely contemporary phenomenon. In an entertaining, if necessarily speculative study of citizens' excuses for evading jury service in the Herault in the ninteenth century, Professor Santucci points out that, mysteriously, the records show that the state of health of the supposedly best cared for and best fed portion of the population who made up the jury pool was piteous: ‘In the face of such physical dilapidation, one wonders how businessmen and notaries could have carried on their professional activities': ‘Etre ou ne pas étre juré au = XIXème siècle’ in Martinage & Royer eds, Les Destinées du Jury Criminel (1991, Hellemmes) pp 153–4.

24. See Weber ‘L'angoisse du Juré Gazette du Palais 14–16 June 1992, p 10.

25. Le citoyen, p 28. Interestingly, this confirms de Tocqueville's hypothesis: ‘I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide litigation’ (Democracy in America (1852)). This view, in turn, has received some endorsement from quantitative research conducted by Shuman and Hamilton ‘Jury Service-It May Change your Mind Perceptions of Fairness of Jurors and Nonjurors, 46 SMU L Rev 449 (1992).

26. Ibid, p 56.

27. Ibid, p 55. Such an attitude probably lies at the root of the recent acquittal at the Paris cour d’ assises of two Africans, charged with mutilation of children, who actually admitted arranging the circumcision of their daughters: Aff Traoré? Diarra et Greou, Le Monde, 17 September 1994, p 15. This is merely the latest in a succession of strange jury verdicts in female circumcision and excision cases.

28. As Darbyshire points out, this virtue can be overstated: ‘The lamp that shows that freedom lives’ [1991) Crim L R 740. The classical French example of a jury acquitting against the evidence in recent times must be the trial of Mme. Garnier: see Munday op cit, note 13.

29. Le citoyen, p 51.

30. Ibid p 70. See also, p 35.

31. Ibid, p 38.

32. The incident is broadly reminiscent of the Carl Bridgewater case in England. The jury foreman has made known his view that, in light of subsequent revelations, he now believes that his jury wrongly convicted the three defendants: see The Guardian (1994) 1 November, p 2.

33. Code of Penal Procedure, art 351.

34. Code of Penal Procedure, art 356.

35. Code of Penal Procedure, art 362.

36. And quaintly formal. After each vote the presiding magistrate must burn all the ballot papers: Code of Penal Procedure, art 358.

37. Code of Penal Procedure, art 359. Voting on sentence is by a simple majority: art 362.

38. See Code of Penal procedure, arts 706–25 and 698–6.

39. Le Citoyen, p 106.

40. Code of Penal procedure, art 244.

41. Code of Penal Procedure, art 249.

42. Code of Penal Procedure, art 309.

43. Code of Penal Procedure, art 311.

44. The way in which this procedure developed is recounted in Munday ‘Jury Trial, Continental Style’ (1993) 13 LS 204.

45. Figures compiled by La Croix/L'Evènement, 14–15 March 1990. It is not surprising that such low acquittal rates throw up cases which engender serious public doubt concerning the correctness of some convictions. During the composition of this paper, Omar Raddad was tried and convicted at the assize court of the Alpes-Maritimes for the murder of Ghislaine Marchal, who, before dying, mysteriously wrote in her own blood the words, mis-spelt, ‘Omar m'a tuer’. The case has aroused puzzlement and uncertainty in almost all who have followed it. Pundits incline to the view that there was at least a doubt as to Raddad's guilt: see, eg, articles by both Maurice Peyrot and Alain Giraudo in Le Monde, 4 February 1994, p 11.

46. See Munday ‘Jury Trial, Continental Style’ op cit p 216, note 64. Such figures are notoriously difficult to interpret. But no matter how one decodes them, the acquittal rates of juries in England are undoubtedly far higher: see Robertshaw ‘Acquittal Rates in 60 Crown Court Centres’ [1990) Crim L R 629; Bridges ‘The Right to Jury Trial’ (1994) 144 NLJ 171; Smith ‘Judicial Statistics: Questions and answers’ (1994) 144 NLJ 1088.

47. See Lombard, op cit, p 93.

48. Crim, 24 November 1982, JCP 1983 IV 47.

49. Remarks made by jurors at the Poitiers forum appear a little less positive, however. The booklet handed out to jurors when they arrived in court and the induction performed by the presiding magistrate nevertheless appear to have given general satisfaction.

50. This practice roughly equates with the recent requirement that all newly appointed assistant recorders in England and Wales must, in addition to attending a Judicial Studies Board residential course supplemented by a period of judicial pupillage with an experienced judge, visit at least one penal institution and meet other actors in the criminal trial process, such as probation officers: see Partington ‘Training the Judiciary in England and Wales: the Work of the Judicial Studies Board’ (1994) 13 CJQ 319, 326, note 21.

51. This problem is acknowledged both in the Code of Penal Procedure, art 347, which expressly forbids the court from retiring as a matter of course with the dossier, and in decisions of the Court of Cassation disapproving the practice of introducing by other means evidence which was not presented at the adversarial hearing (eg, Crim, 9 April 1986, Bull Crim no 120). As the accompanying instruction générale explains ‘The intention of the legislature (in art 347) was to remove any temptation to compromise the principle of the orality of the trial hearings’ (C541).

52. The Rhône initiative is remarkable in several respects. The three women founder members felt that there was a lack of straightforward guide-books for jurors: they therefore wrote one. The organisation which they have set up, known as the Groupe de recherche et d'information sur la fonction de juré (GRIFJ) also collects data from jurors on their assize court experiences: for details see Weber L ‘angoisse d’être Juré, Gazette du Palais 14–16 June 1992, p 9.

53. As his title suggests, the juge de l'application des peines is a magistrate whose responsibility involves oversight of defendants' custodial sentences and who takes decisions on parole, remission of sentences and so on (Code of Penal Procedure, art 709–1). For general accounts of his functions, see J-H Robert Droit Pénal Général (1992, Paris) 2nd ed, pp. 530ff, G Stefani, G Levasseur & B Bouloc Droit Pénal Général (1992, Paris) 14th edn, §sect; 441 and 659 ff.

54. See (1992) 142 NLJ 1031.

55. The Royal Commission on Criminal Justice (1993, Cm 2263).

56. Some researchers have argued that this is in any case a dubious practice: see, eg, Berkowitz ‘Breaking the Silence: Should Jurors Be Allowed to Question Witnesses?’ 44 V and L Rev 117 (1991); Wolff ‘Juror Questions: A Survey of Theory and Use’, 55 Mo L Rev 817 (1990). But cf Pertnoy ‘The Jurors’ Need to Know vs the Constitutional Right to a Fair Trial’, 97 Dick L Rev 627 (1993); Sands and Reiss ‘A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit’ 60 NYUL Rev 423, 443–6 (1985).

57. See Weber, op cit, p 10.

58. Under French voting procedures a majority of jurors voting not guilty will secure the defendant's acquittal. Defence lawyers, naturally enough, think it easier to persuade artless laymen rather than worldly-wise, case-hardened magistrates. Reflecting on the conventional lay-out of the courtroom contemplated by Code of Penal Procedure, art 303, one advocate has spoken in terms of the defence having to overcome an architectural handicap if it is to counteract the influence of the judges and the avocat général, who sit both alongside and on a level with the jurors. She adds that this situation explains why the magistracy is opposed to any re-arrangement of the courtroom: Saunier ‘Avocats et jurés’ in Martinage & Royer (eds), Les destinées du jury criminel (1991, Hellemmes) p 268.

59. See, eg. J McEwan Evidence and the Adversarial Process: The Modern Law (1992, oxford).

60. See Greilsamer & Schneiderman Les Juges Parlent (1992, Paris) pp 323–4.

61. This provoked another lawyer to reminisce on a considerably less subtle French assize judge who made it his practice, whenever a witness' testimony deviated from statements contained in the dossier, to read out to the witness the provision in the Penal Code concerning the offence of perjury.

62. Le citoyen, p 88. Just as significantly, the general way in which proceedings are handled, the openness of the hearing and the average length of time spent in deliberation, are known by experienced observers to vary from one assize court to another. It would be idle to pretend that this did not owe something to the central figure in assize court procedure, the presiding judge.

63. His powers are enumerated by Bernard Fayolle, presiding judge of the Bouches-du-Rhône Assizes in ‘De la cour d'assises’ (1992) Problèmes actuels de science criminelle: Presse Universitaire d'Aix-Marseille 56, pp 70–1. French judges, of course, are not alone in being able to influence jurors. American research has explored the ways, deliberate and unintentional, in which the common law judge can influence jurors' views and, hence, the outcome of cases (Blanck, Rosenthal and Cordell ‘The Appearance of Justice:Judges’ Verbal and Nonverbal Behavior in Criminal Jury Trials' 38 Stan L Rev 89 (1985)), and a recent paper by a Californian judge relates the extent to which she found that jurors were ‘consistently in (her) thrall, a phenomenon explained by emotional transference of blind admiration for the judiciary’ (Cordell ‘Pay No Attention to the Woman Behind the Bench: Musings of a Trial Court Judge’ 68 Ind LJ 1199 (1993)).

64. ‘Les assises entre principes et dérives’ Le Monde, 26 March 1991.

65. For some reason, the assessors were singled out for special criticism in this context.

66. Le citoyen, pp 20, 39 and 41. Research conducted by GRIFJ in the Rhône suggests that, although 77% of jurors who responded to the association's questionnaires did feel that their independence is fully respected, 13% complained of pressure: Weber, op cit. A similar picture emerges in Lombard, op cit, pp 44–6.

67. Interestingly, Lombard reported that all but two of her former jurors referred to the bi-polarity, which the law has arguably sought to eliminate in the procedures now followed during the court's deliberations, with the jurors on the one side and the magistrates on the other. Moreover, she detected that the relations between these two groupings were not described by jurors whom she interviewed in terms of collegial collaboration but in terms of domination, a struggle for ascendancy, a power conflict, in terms of them and us: op cit, p 80.

68. Histoire de la Justice sous la IIIèma République (1957, Paris) vol III, p 25.

69. Article 311 provides that ‘The assessors and the jurors may put questions to the accused and to witnesses with the leave of the presiding magistrate. It is their duty not to betray their opinion’.

70. Lombard, op cit, pp 70–3.

71. Statements made by some of the jurors interviewed by Françoise Lombard confirmed a number of these hypotheses. In particular, some recognised the influence exercised by the avocat général in his closing speech (p 49) and by the judges (pp 94–101) during the sentencing process.

72. Trib corr Paris (17th Chamber), 31 March 1989, JCP 1989 II 21356, obs Dubreuil.

73. Article 362 of the Code of Penal Procedure lays down the detailed procedure to be followed by the presiding magistrate in bringing the tribunal to agreement on the sentence. The procedure expressly envisages a complex sequence of votes, intended to deal with situations such as this, where there exist radical disagreements within the tribunal. The fact that decisions on sentence are arrived at by a bare majority can be seen as recognition of the difficulties inherent in resolving such questions.

74. In July 1994 the French Criminal Bar Association (Association des avocats pénalistes) met to set up a movement to press for reform of the French cour d'assises. Although there was widespread agreement that thought should be given to the introduction of reasoned verdicts in assize court cases, it was noticeable that there was less mistrust respecting the sentencing phase of the trial than the deliberations of the courts on guilt. One leading figure, Me Leclerc, even argued that French law could à la limite’ revert to pre-1932 procedures and allow the magistrates to deliberate alone on sentence, only requiring them to give reasons for the sentence handed down: see Le Monde, 5 July 1994, p 18. Paradoxically, in January 1995, in debating amendments to the Criminal Justice (Scotland) Bill, Lord McCluskey did for a while propose that Scots jurors should be involved in some degree in sentencing in cases where the judge contemplates imposing a sentence in excess of three years. Ultimately, he withdrew his amendment: (1995) 145 NLJ 43.

75. See generally Boré La Cassation en Matière Pénale (1985, Paris).

76. In the absence of any error in the conduct of a jury trial, the English Court of Appeal can be prevailed upon to consider whether it has a lurking doubt that the verdict is unsafe or unsatisfactory within the terms of section 2(1)(a) of the Criminal Appeal Act 1968. But such cases are very rare: eg. Cooper (1969) 1 QB 267. Whether they become more common following the Divisional Court's decision in R v Secretary of State for the Home Department, ex p Hickey (1994) The Times, 2 December remains to be seen. Whether they become more common following the Divisional Court's decision in R v Secretary of State for the Home Department, ex p Hickey remains to be seen, (1995) 1 All ER (forthcoming).

77. As recently as October 1992 an amendment to the Code of Penal Procedure was proposed, introducing a ‘cour d'appel criminel’. The proposal was dropped, however, when the Minister of Justice indicated that he considered the measure premature. In 1979, a similar unsuccessful attempt had been made to change the law; and in 1982 M. Braunschweig, having published a report recommending a system of appeals, ultimately settled for a more relaxed régime for review of verdicts in criminal cases.

78. See, eg, Code of Penal Procedure, art 485.

79. Code of Penal procedure, art 353 states: ‘Before the tribunal retires to deliberate, the presiding magistrate shall read out the following direction, a copy of which shall also be displayed in large print in the most conspicuous position in the retiring-room: “The law does not require the judges to give the reasons which persuaded them, and it does not lay down rules governing the sufficiency and weight of the evidence; it requires them to ponder intently, in silence, and to ask, in all sincerity of conscience, what impression has been conveyed by the evidence adduced against the accused and by the defences presented by the accused. The law requires the judges only to answer this one question, which embodies the sum total of their duties: Do you have that inner conviction?”’.

80. Vincent, Montanier & Varinard La Justice et ses Institutions (1982, Paris) para 302.

81. Lombard, op cit, p 289, note 42.

82. See, eg, Ranouil ‘L'intime Conviction’ in Martinage & Royer (eds), Les Destinées du Jury Criminel (1991, Hellemmes) pp 85ff. The presumption of innocence in French law has since been afforced by art 6(2) of the European Convention on Human Rights, title V of a Law of 4 January 1993, JCP 1993 III 65891 modifying the Code of Penal Procedure, and a Law of 24 August 1993 which adds a new art 9–1 to the Civil Code protecting the individual's right to respect of his presumption of innocence. See generally P Auvret ‘Le Droit au Respect de la Présomption d'innocence’ JCP 1994 I 3802.

83. We outlined this system of proof in ‘Comparative Law and English Law's Character Evidence Rules’ (1993) 13 OJLS p 596.

84. See Torture and the Law of Proof Europe and England in the Ancien Régime (1977, Chicago) esp chap 3.

85. This point was made by avocat général Houpert at the Criminal Bar Association meeting in July 1994: Le Monde, 5 July 1994, p 18. See text accompanying notes 13 and 27 above.

86. On France's attitude to a law of evidence, see Munday ‘Comparative Law and English Law's Character Evidence Rules’ (1993) 13 OJLS 589, esp at pp 595–6. See also Nijboer ‘Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective’ 41 Am J Comp Law 299 (1993).

87. J-M Rouart Omar, La Cconstruction d'un Coupable (1994 Paris: ed de Fallois); J Vergès Omar m'a tuer (1994, Paris: Lafon).

88. The lawyer's remarks were to the effect that the court had displayed racialism in its verdict, evoking echoes of the trial of a certain French Jewish army officer a century ago.

89. The statement may not display a perfect understanding of the English law of evidence, combining as it does a blend of character evidence rules and the principle of orality. What is significant is that reference should be made to the law of evidence at all.

90. See more generally ‘Comparative Law and English Law's Character Evidence Rules’ (1993) 13 OJLS 589.

91. When an avocat-général spoke in Paris, the advocates taunted ‘Debout! Debout!’ (Stand up!), a play on words referring to the fact that in France the prosecutor is a member of the judiciary, la magistrature debout.

92. ‘Jury Trial, Continental Style’ (1993) 13 LS 204.

93. The incomprehension is similar at the judicial level when judges accustomed to sitting collegially are required to sit alone: see Artaud's comments in ‘Le Magistrat Colonial’ (1910) Penant quoted in Judge Dandjial ‘La Procédure Criminelle en Afrique Equatoriale Francaise Depuis 1947’ in Martinage & Royer (eds) Les destinées du jury criminel (1991, Hellemmes) p 245. See generally Baudouin ‘La Collégialité est-elle une Garantie de la Sûreté des Jugements?’ Rev trim dr civ 1992, 532.

94. The process, known as la correctionnalisation, is described in Munday, op cit pp 213–4.

95. Weber, op cit. Certainly, one should not run away with the idea that French defendants with records are never acquitted. Almost contemporaneously with the verdict rendered in the Omar Raddad case, Robert Guinet, who had a history of previous offending, was acquitted of abducting a young girl by a jury in the Landes.

96. Le Figaro, 1 February 1993 (Catherine Delsol).

97. Eg, Garçon in (1899) Revue Pénitentiare at p 1196.

98. Crim R, 25 May 1992, Bull Crim 1992, No 209, p 579; JCP 1992. IV 2815. The argument has been put most vigorously in Crim R, 5 January 1994, Bull Crim No 9, p 16 where counsel contended that the presiding judge's decision to introduce into evidence proprio motu evidence of a defendant's previous conviction not only indicated that the magistrate had a preconceived opinion of the defendant's guilt contrary to art 328 of the Code of Penal procedure but also violated the defendant's right to a fair trial under art 6 of the European Convention on Human Rights and Fundamental Freedoms.

99. ‘Le ‘Criminal Evidence Act’ de 1898 et le Serment des Accusés en Angleterre’, Revue Politique et Parlementaire, November 1898, p 355.

100. Le Rôle d'accusé (1948, Paris) p 18.

101. Ne Jugez Pas (1968, Paris) pp 70–1.

102. See Munday ‘Réflexions Historiques et Comparatives’, op cit, note 3, pp 497–500.