Clifford Chance

It has been 34 years since a criminal lawyer was appointed Minister of Justice in France. The announcement on Monday of the make-up of the new French cabinet with Mr. Dupond-Moretti as new Minister of Justice came as a shock to the legal profession as this talented but controversial criminal lawyer, known for his strong criticism against judges and the judicial system, was totally unexpected.

France implemented in depth reforms of civil law with the contractual law reform in 2016 and the reform of the judiciary organization in 2019 but the criminal system has remained largely unchanged, despite the recent innovations introduced by the Sapin II law which set the foundations for a transactional criminal justice and compliance obligations. In his inaugural speech, Mr. Dupond-Moretti clearly indicated that reforming the criminal jurisdictional system was top of his agenda. He outlined three reforms that will be of great interest to white collar crime and corporate investigation lawyers:

• First, he strongly indicated that he would strengthen the French legal privilege ("secret professionnel"). This announcement comes just after the media revealed that the French PNF had secretly obtained, from cell phone operators, the telephone numbers dialled by a dozen French reputed lawyers. Such strengthening should better protect corporate confidential information and clarify the privileged nature of internal investigations.
• Second, he aims at reforming the administrative body which includes both judges and prosecutors, by revising an 1958 order which sets the conditions to access such functions and articulates the role, power and function of judging and prosecuting functions. Even if he did not provide any detail on the orientation of such reform in his inaugural speech, he made it very clear in previous statements that should he be Minister of Justice, he would aim at separating the judging and prosecuting functions and create a specific and independent status for the prosecution, as currently, judges and prosecutors belong to the same ambiguous administrative family of "magistrats".
• Third, he intends to limit the trend towards fast prosecutor-led investigations which only provide for very limited rights of defence and favour instead formal investigations which allow a proper access to the investigation file to the defendants and victims and a real ability to challenge investigative acts. Such a change will of course improve the situation of the persons targeted by investigations and give them more visibility on the potential charges pressed against them and the merits of the case. It may however bear some consequences in the way CJIPs will be negotiated in the future.
  
  It is impossible to tell at this stage what shape such reforms may take but the debate is now open and is likely to have an influence on the white collar crime practice. Judges and prosecutors may not welcome such announcements but the elephant has been let loose in the room!