Let the punishment fit the crime

14 January 2005

Christian Curtil

Act n° 2004-204 (the “Act”) which become law in France on 9 March 2004 has radically reformed French criminal procedural law. Most notably, the Act has introduced the concept of plea-bargaining into French law and has also introduced some alternatives to the traditional methods of punishment.

“Plea-bargaining” enables the prosecution to propose a punishment of up to six months imprisonment for a crime which is admitted by the perpetrator. The admission must be made in the presence of a lawyer within ten days of the prosecution’s proposal for punishment. The punishment will then be enforced by a judge without there being any need for a criminal trial.

More controversially, the Act has introduced the concept of mediation into the criminal arena. It is hoped that mediation in this context will be able to bring the perpetrator and the victim of the crime together and help them to reach a sensible compromise that will both compensate the victim and re-establish contact between the perpetrator and the victim. The types of disputes which may be suitable for this type of mediation are, for example, disputes between neighbours and or in cases of harassment.

The Act has also introduced the concept of a “criminal transaction” which essentially enables the prosecutor to try and cut a deal with the perpetrator of the crime to determine what his punishment will be, e.g. a fine, community service, the withdrawal of the perpetrator’s driving licence. If the perpetrator of the crime chooses to accept the punishment proposed by the prosecutor then the punishment will be enforced by the court.

It is possible for the criminal to appeal against punishments imposed on these bases but this is likely to be rare because the punishments are generally less severe than those which might be imposed if the criminal were to be dealt with by the court in the traditional manner.

While the Act is naturally meant for petty offences in relation with, for instance the highway code or the possession of narcotics, which need no formal investigation, it indeed applies to most white collar crimes such as fraud, the making of a forged document or breach of trust. Therefore, managers may well prefer to admit the offence and be sentenced with a plea-bargained punishment rather than face a criminal investigation which may last for years followed by a public trial.

Moreover, given that by law the prosecution is to propose a punishment of up to half the sentence a court may be expected to inflict, there is little to lose in accepting to negotiate a good deal which, in the end, can always be turned down.