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Pre-trial Detention in 20th
and 21st Century Common Law and Civil Law Systems
Edited by Marion
Charret-Del Bove & Fabrice Mourlon
Newcastle
upon Tyne: Cambridge Scholars Publishing, 2014 Hardcover. 247 pages. ISBN 978-1443859912. £44.99
Reviewed
by Anne Brunon-Ernst Université
Paris 2-Panthéon-Assas
In the volume, Pre-trial Detention in 20th and 21st Century Common Law and Civil Law Systems, the editors, Marion Charret-Del Bove and Fabrice Mourlon from the Universities of Lyon 3 and Paris 13 respectively, present a compelling study of the principle and practice of pre-trial detention in many legal systems. Pre-trial Detention is a 247-page volume. It contains twelve contributions. The disciplinary approach in those contributions range from a political science perspective to a legal comparative law approach, as well as an essay on translation. As a whole, the volume tackles pre-trial detention both from a theoretical and practical viewpoint. On account of its subject and its focus, the book looks into pre-trial detention defined alternatively as police custody, detention on remand, and temporary detention for illegal immigrants. The discussion revolves around: (1) rights (i.e. the presumption of innocence principle or the rights of the accused, which is allegedly safeguarded through a two-judge control procedure) and their actual implementation; (2) the balance to be struck between the need to protect society from crime and the rights of individuals detained (and other rights such as the right to protest and to rebel); (3) access to a lawyer; and (4) a contribution on the problems of translating laws of exception. The essays are the proceedings of a 2012 conference organised by the Centre de Recherches Interculturelles sur
les Domaines Anglophones et Francophones. The volume here reviewed presents
the advantages and the drawbacks of such publications. Its asset is that specialists
in each field write a contribution on their area of expertise. As in many proceedings, one of the drawbacks
is the lack of a strong line of argument on pre-trial detention running through
the book. Indeed the book’s chronology spans from the 1910 revolt in the
Brazilian War Navy to focus more exclusively on contemporary debates in France
and in the United Kingdom in the wake of the 2010 ECtHR rulings in Medvedyev v. France, Brusco v. France, and Moulin v. France, etc. From a
geographical view-point, the book looks into the theory and practice of
pre-trial detention in France, the UK, the US and Brazil, thus justifying the
wide-ranging sub-title: 20th and 21st
Century Common Law and Civil Law Systems. However, notwithstanding the
great quality of the contributions presented, the reviewer notes that the
focus is generally on the UK and France. Overlaps are also
inevitable when publishing proceedings. Indeed two papers for example deal with
the detention centres for illegal immigrants. Even if the focus on the issue is
slightly different in the two papers, repetitions are bound to occur. For all the comments above, Pre-trial Detention remains a
well-informed study of principles and practice of pre-trial detention in France
and the UK mainly. The present reviewer wishes to share selected points of note
found in the essays. In “The Politics of Pre-trial Detention in the United
Kingdom since 2000”, Kenneth O. Morgan stresses the importance of Parliament in
upholding the rights of citizens against government encroachment. In
“Preventative Interventions and the Right to Protest”, Neil Jarman focuses on
preventive police intervention (followed by police custody) which limits the right
to protest. In “Habeas, Hamdan and History”, Roy Carpenter looks
into the Guantanamo Bay legal loophole and shows that a new legal procedure, which
is neither military nor criminal, has come into being. In “Crime and Punishment
in the 20th Century Brazilian War Navy”, Sivila Capanema draws attention to the
racial component in the causes of the Brazilian War Navy rebellions throughout
the 20th century. In “The Right to a Lawyer”, Marie Marty underlines the
convergence of the right to a lawyer in European countries, especially thanks
to ECtHR rulings on the issue. In “Police Custody in England and in France”,
Elizabeth Gibson-Morgan carries the discussion a step further, showing how the
ECtHR acts as a force for reform of police custody. Conversely, in “The
Pre-trial Detention in the French and English Criminal Justice Systems”, Akila
Taleb exposes the inconsistencies of the French prosecution system, showing how
it conflicts with ECHR principles. The next contribution, by Sacha Raoult, on
“The Functional Ambiguities of Pre-trial Detention in France”, presents an
analysis of the reasons why pre-trial detention is ordered by judges (i.e. on account of social
marginality). In “Detention on Remand and the Presumption of Innocence
Principle”, Céline Chassang points out the fallacy of the French double
judicial supervision system. Geraldine Gadbin-George’s contribution in
“Detention Centres in France and the United Kingdom and the Criminalisation of
Migrants” uses the comparative law methodology to highlight the problems of
access to justice in detention centres. She also offers a precise definition of
key terms such as detention in a legal context. In “Immigration Detention in
the UK”, Catherine Puzzo concentrates on the role played by NGOs in the monitoring
of the detention system. In the last contribution entitled “Translating Laws of
Exception”, Georges Fournier comments upon the translation of pre-trial
terminology, exploring the linguistic and contextual problems of a certain
number of definitions in use. Pre-trial
Detention
fills a gap in the landscape of criminal law essays, thanks to its comparative
perspective and the wide range of topics it deals with. Undoubtedly, the reader
will get a deeper understanding of the intricacies, the inconsistencies and
development of different types of pre-trial detention systems. This book is a must-read for all scholars interested in criminal
issues from a comparative perspective.
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