Chapter 2 – Methodology
I. Choice of method
The decision to prosecute or not is one of those ‘low visibility decisions in the administration of justice’ as defined by Goldstein.142 Low visibility decisions are
mostly found in the early stages of criminal proceedings, at which point the future trajectory of cases is often determined. They are unlikely to be the subject of reviews, especially if agencies decide not to invoke the law. A classic example of these ‘low
141 Martyn Hammersley and Paul Atkinson, Ethnography: Principles in Practice (2nd ed, Routledge
1995) 1.
142 Joseph Goldstein, ‘Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions
visibility’ decisions is street-level decisions by the police with regards to arrest or stop- and-search. Unlike a judge who has to justify their decision and whose judgment might be published, police officers do not usually have to give detailed reasons for arresting somebody on the street. In particular, if they decide not to arrest someone, there will be no review of their decision.143 Similarly, prosecutorial decisions are rarely subject
to reviews and prosecutors usually do not have to provide detailed reasons for their decisions, in particular if they decide not to prosecute. Even if they do have to justify their decisions, their explanations would not normally be made available to a large audience but would mostly remain confined to internal scrutiny.
The ‘low visibility’ of prosecutorial decisions means that very little information can be found in court cases about how the decision to prosecute was reached and even less information with regards to decisions not to prosecute, since these cases never reach the courts. The only available data relates to high profile cases where prosecution agencies are subject to external scrutiny by the media,144 but very little data is available
on routine cases which constitute the daily workload of prosecutors. As a result, a purely doctrinal approach focused on the analysis of statutes and decisions of higher courts is unlikely to yield many findings with regards to the everyday decision-making process of prosecutors. This is not to say that the current legislation and prosecution policies, as well as disciplinary procedures and external inspectorate bodies’ roles, do not have to be examined. The existing literature also provides an indispensable theoretical frame to the study. Relevant here are not only research monographs and
143 ibid 543.
144 It should be noted that English courts are more and more willing to review public prosecutors’
decisions. In these circumstances, court decisions detailing the decision-making process of prosecutors become available. However, it has been observed that ‘[t]he level of accountability to the court for decisions not to prosecute is likely to remain low’ Mandy Burton, ‘Reviewing Crown Prosecution Service Decisions Not to Prosecute’ [2001] Criminal Law Review 374, 383.
journal articles, but also official reports and journalistic exposés. However, this study is not only concerned with ‘law in the books’, but also with ‘law in action’ as first described by Roscoe Pound at the beginning of the last century. This is essential in order to go further than what has already been said on issues around prosecutorial discretion and accountability and thus produce original research, the central requirement of any PhD endeavour.
In the context of a comparative study, relying solely on expert literature from a foreign jurisdiction can be especially problematic. As explained by Nelken,145 ‘descriptions
of social and legal ideas carry political implications’ and, whilst we might be able to associate experts from our own culture with a given political or policy position, the same will be much more difficult when relying on overseas experts. Even assuming that expert literature is impartial, it will only answer questions relevant to its culture which might not be pertinent to the outside researcher.146 For instance, there is very
little literature in France about the relationship between police and prosecutors because it is not seen as much of an issue as it is in England and Wales.147 There will
also inevitably be problems in translation. Simply translating the French ‘procureur’ for the English ‘prosecutor’ can mask great differences between their roles in each jurisdiction. Similarly, assuming that the French ‘magistrat’ is the same as the English ‘magistrate’ – as attractive as this may sound – can lead to considerable misunderstanding.148 Solely relying on expert literature deprives us of other means of
understanding the culture and thus of being alert to major differences.
145 David Nelken (ed), Contrasting Criminal Justice: Getting from Here to There (Ashgate 2000) 6–7. 146 ibid 8.
147 See Chapter 1.
148 In the legal system of England and Wales, magistrates, also called justices of the peace, are lay
judges, namely people from the local community who hold no legal qualifications. They are not paid, apart from an allowance for loss of earnings, mileage and subsistence. They generally sit in threes and are advised on points of law and procedure by a legally qualified justices’ clerk.
Qualitative empirical research ‘involves an attempted in-depth exploration of legal processes, typically focusing on a modest number of interactions but viewing these from a variety of perspectives and perhaps over time. The strength of this approach lies in its capacity to reflect the complexity of legal processes, and the complexity of the relationship between process and outcome.’149 This is particularly true of
ethnography where the researcher can ‘immerse herself in the field in order to try to identify important and relevant issues, without the total constraint of precoded categories.’150 In a comparative study, this is particularly useful as it can avoid
ethnocentric preconceptions. This open-ended characteristic of ethnographic research neither waives the necessity of preparation before going into the field, nor means that the ethnographer should behave aimlessly in the field, but it implies that the research design should be a reflexive process throughout.
In this study, the completion of an initial literature review allowed me to define ‘foreshadowed problems’,151 rather than specific research questions. The existing
literature has identified three main sources of influence for prosecutors’ decisions in both legal systems: the police, the prosecution services’ hierarchy and the government. It was important to find out how these three main influences played out in practice, what limited their respective impacts on prosecutorial decision-making and whether other factors played a role in prosecutors’ decisions. With this in mind, it was decided to focus on the internal organisation of public prosecution services (team work, bureaucracy, and hierarchical relationships), the implementation of a national
In France, a magistrat is a member of the career-trained judiciary which comprises both the ‘sitting judiciary’ (trial judges and juges d’instruction) and the ‘standing judiciary’ (procureurs).
149 John Baldwin and Gwynn Davis, ‘Empirical Research in Law’ in Mark Tushnet and Peter Cane
(eds), The Oxford Handbook of Legal Studies (Oxford University Press 2005).
150 Hodgson, French Criminal Justice (n 62) 10. 151 Hammersley and Atkinson (n 141) 24.
prosecution policy, in particular its adaptation to local needs, and recent developments in external accountability for prosecutors. Whilst providing some structure to the researcher, these questions were sufficiently open to allow some flexibility in data collection, so that important issues were not ignored because they did not fit into the predefined categories.
Direct observation allowed me to identify factors influencing prosecutorial decisions that I might not have discovered otherwise. Often, in the weeks or months following the start of the fieldwork, what the ethnographer previously took for granted as knowledge about the organisation turns out to be inaccurate. In the process of observing the host organisation, the researcher progressively achieves an inside knowledge of it, which supplants their previous ‘external’ knowledge. Gradually acquiring an understanding of the organisation’s culture, the participant observer achieves a certain objectivity, which is not usually accessible to members of the organisation themselves. Members of the group ‘live inside the culture and tend to see it as simply a reflection of “how the world is”. They are not conscious of the fundamental presuppositions that shape their vision, many of which are distinctive to their culture.’152 Thus, prosecutors themselves remain unaware of some aspects of
their work because they simply consider them as insignificant. Entering an organisation as an outsider, the ethnographer notices important features that members of the group would not consider noteworthy because they take them for granted. Both French and English prosecutors were surprised that I was interested in observing them whilst they answered phone calls from the police. English prosecutors assumed that I must find this very boring, later telling me, when I was observing the work of Crown Advocates in the Crown Court, that this must be much more interesting for me.
Similarly, French prosecutors tried to convince me to attend the Cour d’assises’ hearings,153 rather than sit in the office with them. Whilst observing trials is essential
to understand what is required from the prosecution in the pre-trial phase, the research is principally concerned with the nature of routine day-to-day pre-trial decisions. The methods and resources used to deal with particularly serious offences are often very different from procedures followed for mass offences. For example, the investigations of the most serious offences tried in the French Cour d’assises have to be supervised by a juge d’instruction, not a procureur. The juge d’instruction also ultimately decides whether or not to send the case to trial. Attending Cour d’assises’ hearings would have provided me with little data related to decisions by procureurs, and the focus would not be on the ordinary caseload of the procureur, but on the most serious three per cent of criminal cases.
The status of the ethnographer as an outsider is of particular interest in comparative research. Observing professionals in a foreign country, the researcher is doubly an outsider. This is both an advantage and a disadvantage. On the plus side, they might be able to notice important aspects of the professionals’ work that a native researcher might have dismissed as ‘normal’. As Hammersley and Atkinson explain, ‘[i]n research settings that are more familiar, it can be much more difficult to suspend one’s preconceptions, whether these derive from social science or from everyday knowledge. One reason for this is that what one finds is so obvious’.154 Being a ‘double
outsider’ can also have its downside for the foreign ethnographer, as it might take them
153 In the French legal system, the Cour d’assises is a criminal trial court with jurisdiction to hear cases
involving defendants accused of the most serious offences, crimes in French, and the only one involving a jury of citizens. Under French law, a crime is any criminal act punishable by over 10 years of prison, such as murder and rape. It should be distinguished from contraventions (road-traffic offences, minor assaults), punished by a maximum fine of €3,000 (Art. 131-13 of French criminal Code), and délits
(theft, involuntary manslaughter), punished by a maximum of 10 years imprisonment (Art. 131-4 of the French criminal Code).
longer to understand the culture and thus notice further aspects as significant. The comparative ethnographer is subject to two contradictory imperatives: they must avoid ethnocentric preconceptions through immersion, but beware of ‘going native’.155
Having been living and working in England and Wales for the past seven years, I have some knowledge of the English culture and am aware of the current public affairs in this jurisdiction. However, whilst conducting observational fieldwork in England and Wales, I was in the position of an outsider, having never practised law in this jurisdiction, nor studied English law at university. This meant that I noticed aspects of prosecutors’ work that I might not have seen as significant otherwise. For example, I might not have perceived as remarkable the fact that English prosecutors never meet suspects had I not been a French lawyer, aware that French prosecutors regularly see suspects, in particular to notify them of the charges against them. In order to create this new perspective when observing the work of prosecutors in France, I decided to carry out the English fieldwork first. Having spent time with English prosecutors, some features of French prosecutorial work struck me as interesting whilst I might not have noticed them if I had simply started by observing French prosecutors. For example, I noticed that French procureurs spoke to the police in a much more assertive way than their English counterparts who showed more deference. Nevertheless, being French also proved useful in the conduct of observational fieldwork in France. For instance, I am well aware of the importance of the discourse around ‘equality’ in France. Not only is it written on the pediment of all official buildings, at the centre of the slogan of the French Republic: ‘Liberté, Égalité, Fraternité’, but the concept of equality is also deeply rooted in French society. I therefore considered it particularly
155 The term ‘going native’ refers to the danger for researchers to become too involved in the community
under study, thus losing objectivity and distance. See Karen O’Reilly, Key Concepts in Ethnography
significant when a procureur told me that ‘equality doesn’t exist’, when she explained that their first priority is to resolve a particular case in a manner which is adapted to the seriousness of the offence and the personality of the suspect, not to make sure that their decisions are coherent.
Direct observation and other qualitative methods sometimes come under criticism for lacking scientific rigour on the basis that the data and findings they provide are subjective, merely peculiar perceptions from a few cases that cannot offer solid grounds for accurate scientific analysis.156 Quantitative methods, such as surveys, are
perceived as more scientific, but they are useful only if the research questions can be answered by ways of standardised interrogation. They are therefore wholly unsuited to this study which seeks to understand an organisation and its decision-making processes, as human interactions – within the organisation and between members of the organisation and external agents – cannot be reliably measured through statistics. Quantitative methods also suppose a pre-existing dataset that can be used to answer the research problems, as the large amount of data which would have to be collected to allow for a quantitative analysis is out of reach for a lone researcher. Although both England/Wales and France produce official statistics with regards to their respective criminal justice systems, it would be particularly dangerous to assume that it is possible to compare and contrast them. Take, for example, the discontinuance rate, i.e. cases discontinued by prosecution authorities. Considering that procureurs
discontinue a much higher number of cases than their English counterparts, it could be concluded that they are less hesitant to forsake weak police cases and thus much more independent from the police. However, this would completely ignore the fact
that French police have to report all offences to the procureur, whereas the English and Welsh police officers act as a filter in the first instance, only sending what they consider strong cases to the CPS. Similarly, a comparison of conviction rates could lead to the conclusion that procureurs prosecute less weak cases than English prosecutors, since they have a higher success rate at court. Again, this does not take into account important contextual aspects: apart from the fact that the law of evidence can be stricter in England and Wales than in France, procureurs enjoy a much closer relationship with judges than CPS prosecutors as they belong to the same professional body. Another explanation for the French high conviction rate could therefore be greater professional trust between French judges and procureurs, leading to a more favourable acceptance of the prosecution case than in England and Wales.
In this study, direct observation was completed by interviews towards the end of the observation period in each jurisdiction. Firstly, this allowed for a better-informed definition of interview questions. Secondly, although interviews provide a helpful insight into the opinions of professionals about the enterprise of the criminal justice system, researchers must remain vigilant about taking at face value what participants tell them during interviews. As explained by Hodgson, ‘[c]onsciously or unconsciously, interview subjects may offer up presentational data which does not reflect daily routines and experiences’.157 Presentational data ‘concern those
appearances that informants strive to maintain (or enhance) in the eyes of the fieldworker, outsiders and strangers in general, work colleagues, close and intimate associates, and to varying degrees, themselves.’158 Although it can also arise in
157 Jacqueline Hodgson, ‘Comparing Legal Cultures: The Comparativist as Participant Observer’ in
David Nelken (ed), Contrasting Criminal Justice: Getting from here to there (Ashgate 2000) 142.
158 John Van Maanen, ‘The Fact of Fiction in Organizational Ethnography’ (1979) 24 Administrative
conversations during observational fieldwork, interviews are more likely to produce presentational data because of the greater formality of the setting: interviewees are more cautious as to what they say, especially if the conversation is recorded. When explaining to a French procureur that I only wanted to record the interview to ensure accuracy, she replied that she did not intend to say anything that she could not stand by afterwards anyway. The ethnographer must always cross-check data they collect against previously or newly collected data. This can allow them to detect presentational data and reinterpret it for it to take a new importance: as Van Maanen pointed out, ‘people lie about the things that matter most to them (...) If the ethnographer can uncover the lie, much is revealed about what is deemed crucial by the individual, group, or organization.’159 Having spent a long time observing their
work before interviewing prosecutors allowed me to spot discrepancies between what they told me they were doing and what they actually did. For instance, I interviewed an Associate Prosecutor who assured me that they always had to seek the approval of a lawyer before making any decision, including when they were at court. However, I had spent a long time following Associate Prosecutors to magistrates’ court hearings by the time I interviewed her and I knew that they often made decisions without running it past a lawyer first. Her insistence that the rule was being observed underlined the importance of it being routinely broken for practical reasons.
In-depth interviews are also a great tool to find out what participants believe they are doing and why they are doing it. Interviews with prosecutors were essential to understand their underlying core values and their opinions on their job and status.