How should we judge the most serious crimes and what role should ordinary citizens play in these decisions? This edited collection traces the very different practices of seven Western European countries. The book emerged as a response to recent, highly contested reforms in France which have limited the role of the jury with the aim of reducing costs and speeding up the processing of serious criminal cases. Prior to 2019, the most serious offences were almost always tried before the Cour d'assises (CA), a court composed of six jurors and three professional judges operating together as a mixed panel that decides on both guilt and sentence. Pilot reforms in 2019 were followed in 2023 by the national roll-out of the Cour criminelle départementale. Operating with similar procedures but composed entirely of five professional judges, it replaced the CA in relation to many serious offences. In his chapter on developments in France, Rousvoal describes this as just the latest stage in the marginalisation of the popular jury.
The significance of this controversy stems from the centrality of the tradition of the CA to France's symbolic image of criminal justice. Its distinctive features—the detailed public oral examination of the most serious and dramatic offences, followed by a joint decision on guilt and sentence by an alliance of citizens and professional judges—are the subject of not only sustained mass media coverage in France but also a staple of popular fiction and documentary. It hears less than 1 per cent of criminal cases, but the iconic status of the CA derives in part from its history. The jury was an institution originally borrowed from the British tradition following the French Revolution but then subsequently adapted. The French model of a CA with a popular jury became associated with Enlightenment thinking and was subsequently re-exported, applied, resisted and adapted elsewhere in Continental Europe by force of example and/or arms.
For the French, the current challenge to the tradition of the CA gives a special urgency to defining what constitutes its distinctiveness, meaning and value. The volume's aim is to examine this by comparing and contrasting practices and developments elsewhere in Europe. This is a classic comparative objective: to learn about oneself by discovering other possible selves. Yet, as Rousvoal comments in his introduction, the work is constructed not so much as a work of comparative law but as a coordinated study of ‘foreign laws’ (14). Thus, the most substantial part of the book consists of chapters by national experts considering how serious offences are dealt with in selected jurisdictions elsewhere in Europe (England and Wales, Belgium, Germany, Switzerland, Italy and Spain). This is preceded by chapters focusing on the experiences of, and debates around, the operation of the CA in France as well as others examining the (limited) influence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union. A final chapter reflects comparatively on the various jurisdictions.
Two key comparative themes emerge. The first is variation and diversity in the forms of citizen participation in criminal adjudication. The current French model of the mixed panel determining both guilt and sentence was introduced in Belgium in 1919 (even before its introduction in France in the Vichy period). However, since 2009, guilt has been determined by the Belgian jury alone, with jurors and professional judges deciding together on sentencing. In Spain, jurors sit with a professional judge acting as court President, but they decide on guilt alone, with the President deciding on sentence. Accordingly, where they exist, juries perform different functions and with different degrees of autonomy. Elsewhere on the Continent, several jurisdictions, inspired by French practice, adopted the popular jury during the Enlightenment but have since renounced it. Instead, they use different forms of lay citizen magistrates who have volunteered or been selected to serve for a significant period and who operate alongside professional judges to determine both guilt and sentence. In Italy, the lay magistrates are in the majority and deal with the most serious offences, but in Germany and Switzerland these courts deal with a variety of more routine offences and lay magistrates are often not in a majority. In the Crown Court in England and Wales, citizen jurors decide on guilt in the most serious cases, leaving professional judges to determine sentence. For less serious offences, lay magistrates decide on both guilt and sentence. Consequently, the picture that emerges is one of an enormous variation that is not likely to be mediated by European influences: Auroy notes in his chapter on the European Union that it does not have jurisdiction in relation to the organisation of criminal courts, while Frinchaboy's chapter on the ECtHR emphasises that its respect for diverse legal traditions and cultures means that it will not call into question the popular jury or the composition of criminal courts more generally.
The other key theme of the volume is the progressive marginalisation of the popular jury. This is most obvious in those jurisdictions like Germany and Switzerland that have abandoned it. In Spain, the jury has never had extensive jurisdiction in relation to serious crime and has been abolished and restored many times since 1820. Distrusted for its ‘surprising’ verdicts, parties often agree to avoid its jurisdiction. In those countries where the jury does theoretically have exclusive jurisdiction in relation to the most serious crimes (England and Wales, France and Belgium), governments concerned about lengthy and costly trials have developed various institutional mechanisms to limit its use. In France, prosecutors minimise the gravity of offences to recategorise them as ones that do not require jury trial. In Belgium, the practice of finding extenuating circumstances to avoid the jury's jurisdiction has the same effect. In England and Wales, institutionalised practice encourages lay magistrates to retain jurisdiction and discourages defendants from exercising their right to trial by jury. As a result, juries deal with less than 1 per cent of cases in both France and England and Wales. Even those countries where real political meaning is ascribed to the jury seem quite comfortable with its practical marginalisation.
But what is the significance of this varied citizen participation in serious criminal cases in Europe? Chetard's final comparative chapter sees it as rooted in a vision of desired collective political and institutional design, rather than in a concept of trial by jury as a fundamental right owed to each citizen and guaranteed by entrenched constitutional norms. It is a form of separation of powers which constrains the potentially arbitrary State: professional judges—who historically were often perceived as too close to monarchical interests—are prevented from deciding on matters of both fact and law. For Chetard, this explains the diversity of the forms of citizen participation: if the underlying drivers are political and institutional then one would expect the principle to manifest itself differently in different legal and political cultures. And if citizen participation is not a matter of fundamental individual rights, one would not expect diverse political and legal cultures to be realigned by international rights mechanisms.
However, this posited dichotomy between the citizen jury as a fundamental individual right and as a political constraint on the arbitrary State does not work as well from an English perspective. Unlike the other jurisdictions studied, England and Wales does not have entrenched constitutional rights: assertions that the right to trial by jury is a fundamental right are exercises in political rhetoric rather than a distinct legal claim. Such claims that the right to trial by one's peers is an historic right of the ‘free-born Englishman’ are indeed an established feature of the political culture, and they are founded precisely on the protection from the arbitrary State that the jury historically afforded political and religious dissenters, as Soubise outlines in her chapter on England and Wales.
This prompts a broader reflection about the distinctions between the French and common-law jury models which are underexplored in this volume. The political significance of the popular jury varies by reference to what it does and the degree of independence it has in doing it. The French model involves a mixed panel of professional judges and lay jurors working together both to determine the guilt of fellow citizens and the appropriate punishment for their actions. It is collaboration in a shared mission to reinforce the mutual expectations implicit in the relationship between the State and its citizens. In the common-law adversarial tradition, the jury does just one thing: it determines guilt. It does not participate in sentencing and thus punishment. Because it acts independently, it stands much more clearly as a barrier between the citizen and the potentially oppressive State, reflecting the stronger distrust of the State that underpins Anglo-American liberalism.
The collection could usefully have explored the contrast between French continental and common-law models of the jury in greater detail, but it remains a fascinating book that seeks to chart and explain the different ways in which citizens participate in the adjudication of serious criminal cases across Western Europe. It deserves to be read by any serious scholar of comparative criminal process.
