Adversarialism Article

Legal Studies, Vol. 31 No. 4, December 2011, pp.
519546
DOI: 10.1111/j.1748-121X.2011.00201.x
From adversarialism to managerialism:

criminal justice in transition
lest_201
519..546
Jenny McEwan*
Professor of Criminal Law, Exeter University
The criminal justice system of England and Wales has been subject to a series of essentially ad hoc reforms that depart to a significant degree from its adversarial heritage and
represent a threat to fair trial rights under Art 6 of the European Convention on Human
Rights. Far from moving closer to the European inquisitorial model, as has been suggested by some commentators, criminal procedure is becoming increasingly dominated by
managerialist concerns. Intolerance to litigant control is motivated by the desire to
increase efficiency and reduce cost, although the replacement of party autonomy in terms
of control over the conduct of the case by state power over process corresponds to some
degree to the descriptions, in the work of Mirjan Damaka, of the system favoured by
activist states. However, the financial crisis facing the new government means that the
situation is unlikely to be alleviated should the extent of government activity be reduced.
INTRODUCTION
The purpose of this paper is to suggest that the movement of the criminal justice
system in England and Wales away from its adversarial tradition, a development that
has been to some degree recognised in academic literature, has very different implications from those commonly ascribed to it. There has been considerable discussion
of convergence,1 given the commonality of rights under the European Convention
(EC) and the attempts by several traditionally inquisitorial jurisdictions in Europe,
not necessarily successfully, to incorporate traditionally adversarial elements into
their criminal justice systems. For European countries to share a common, hybrid
model bringing rules of evidence closer together would allow greater cooperation
*
J.A.McEwan@exeter.ac.uk
I am extremely grateful both to Professor John Jackson for his generous help with a draft of this
paper, and to the anonymous reviewers who also made constructive comments. Responsibility
for its shortcomings is mine alone.
1. JD Jackson The effect of human rights on criminal evidentiary processes: towards
convergence, divergence or realignment? (2005) 68 MLR 737; J Jackson Transnational faces
of justice: two attempts to build common standards beyond national boundaries in
J Jackson, M Langer and P Tiller (eds) Crime Procedure and Evidence in a Comparative and
International Context: Essays in Honour of Mirjan Damaka (Oxford: Hart Publishing, 2005);
M Delmas-Marty Towards a European model of the criminal trial in M Delmas-Marty and
M Summers (eds) The Criminal Process and Human Rights: Towards a European Consciousness (London, Dordrecht: Martinus Nijhoff, 1995) p 197. Scepticism in J Hodgson French
Criminal Justice: a Comparative Account of the Investigation and Prosecution of Crime in
France (Oxford: Hart Publishing, 2005); P Legrand European legal systems are not converging (1996) 45 1CLQ 52; SJ Summers Fair Trials: the European Criminal Procedure Tradition
and the European Court of Human Rights (Oxford: Hart Publishing, 2007).
2011 The Author. Legal Studies 2011 The Society of Legal Scholars. Published by Blackwell Publishing, 9600
Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
520
Legal Studies, Vol. 31 No. 4
across Europe in bringing offenders to trial and sharing evidence between jurisdictions. And, were civil and common law jurisdictions indeed to develop new, similar,
models of criminal procedure with common goals, that might suggest convergence
also in their political ideologies and economic structures. The argument here,
however, is that while this country is altering its criminal justice system in fundamental ways, the direction is not towards civil law models, but towards one completely different from either the civil or common law traditions. The new priority is
one of efficiency.
Those jurisdictions associated with the inquisitorial model are similarly dispensing with some of their own traditional features to replace them, not so much according to adversarial ideals, but in order to prioritise economy and expedition. Thus
convergence is not towards a centre ground between the two kinds of system, but
possibly towards a new model sharing elements inimical to both. Similarly, rather
than occupying a position along the continuum between the Crime Control and Due
Process models of criminal justice, as Herbert Packers analysis would suggest,2 a
new value choice may reflect the view that both models are too costly. In an era
where criminal processes must be viewed as much through the lenses of cooperation
and management as from the perspective of the battle premise on which both
Packers models are founded, his classic linear representation must be replaced by
a triangular one; for either Crime Control or Due Process requirements may be
diluted according to managerialist ends, as may inquisitorial or adversarial characteristics. Since the nature of legal processes has been said to be linked to the political structures and philosophies of the states in which they operate,3 these
developments suggest that there are many societies currently in a state of significant
political transition.
Adversarial proceedings involve a dispute between two sides. They should be in
theory in a position of equality before an adjudicator whose role is passive and neutral
in terms of the preparation of the case and presentation of the (predominantly oral)
evidence; the judges task is to keep the parties to the rules.4 Fairness is achieved by
allowing parties control of their own case in terms of selection of evidence and of the
issues with the trial as the battleground on which the issue of the defendants guilt is
resolved. Since the process is one of conflict resolution, the parties may engage in
deals without much interference from the court. There are obvious merits in a criminal
justice system that distances the accused from the state, however well intentioned its
official agencies may be; in the USA the historically antigovernmental consensus5
demands such a distancing. In contrast, inquisitorial systems, where facts are adduced
exclusively by agents of the state, attempt to ensure fairness through a hierarchical
officialdom designed to provide supervision and review by each layer of the system of
the one beneath. The criminal trial is effectively an audit of earlier work, and therefore
2. HL Packer The Limits of the Criminal Sanction (Stanford: Stanford University Press,
1968); J Griffiths Ideology in criminal procedures: or a third model of the criminal process
(1970) 79 YLJ 359.
3. MR Damaka The Faces of Justice and State Authority (New Haven: Yale University
Press, 1986), and in a different context, N Lacey The Prisoners Dilemma: Political Economy
and Punishment in Contemporary Democracies Hamlyn Lectures (Cambridge: Cambridge
University Press, 2007).
4. MR Damaka Evidence Law Adrift (New Haven: Yale University Press, 1997).
5. P Huntington, Paradigms of American politics: beyond the one, the two and the many
(1974) 89 Pol Sci Q 1 20.
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From adversarialism to managerialism: criminal justice in transition
521
is no more important than the pre-trial processes.6 Mounting costs in civil law jurisdictions, however, mean that these traditional protections are under threat.7
According to Damaka, it is not only a matter of the attitude of the citizenry to its
government that causes adversarial procedures to become established. The more
governments are driven by ideology to intervene in the lives of their citizens to realise
the collective notion of the good (activist government), the more as a matter of
anthropological fact they tend to evolve systems of justice concerned with the fulfilment of state programmes and policies. The state will therefore play a key role in the
criminal justice process. In contrast, reactivist states, which favour self-management,
prefer a horizontal structure consisting of a series of relatively disconnected agencies
(coordinate officialdom) such as prosecutors and courts, which are largely autonomous. Evolution from one system to the other, on this view, would reflect a changing
perception of the proper role of government. Damaka argues that activist states are
intolerant of litigant freedom; increasing government activity in pursuit of public
welfare can make litigation seem a burden on society. In such a climate, adversarial
values are challenged; criminal and civil litigation may be perceived as a local issue
pertaining to the individual litigant rather than essential protections to the rights and
freedoms of every member of society. In Damakas view, bureaucrats dislike dayin-court trials since results are relatively unpredictable. More fundamentally, he
argues that party control of litigation presents a problem to the activist state, which
regards the processes of proof as a means of eliciting facts of importance for the
implementation of state policies, and has no time for two clashing versions of events.
The reactive state, in contrast, has no mechanism for preparing quantities of documents, and so prefers the parties to do the work. The result is a conflict-solving model
of criminal justice.8
European states, however, currently share a common problem irrespective of their
procedural and political structures. Many administrations lack the resources to deal
with the number of cases coming into their criminal justice systems. In this country,
the problem is partly due to the number of new criminal offences,9 including breach
of Anti-Social Behaviour Orders (ASBOs)10 created by successive Labour governments, and the constant stream of reform to criminal procedures and sentencing
powers.11 Civilian jurisdictions also have indulged in over-criminalisation,12 making it
difficult and expensive to operate procedural controls such as hierarchical supervision.
Tough on crime rhetoric propels governments towards incurring considerable
6. Damaka, above n 3.
7. See eg Hodgson, above n 1.
9. No definitive figure appears possible. Nick Clegg MP estimated in 2001 that 3000 had
been enacted over the previous 10 years: speech to Liberal Democrat Party Conference,
September 2001. See J Spencer The Drafting of Criminal Legislation: Need it be so Impenetrable? Judicial Studies Board 12th Annual Lecture (2008), available at http://clients.
mediaondemand.net/judicialstudiesboard/annualLecture2008.
10. Made under Crime and Disorder Act 1998, s 1: Anti-Social Behaviour Act 2003, ss 2529.
These may be abolished by the coalition government: A Travis Asbos on the way out, suggests
Theresa May Guardian 28 July 2010.
11. Causing the Lord Chief Justice to plead for mercy: Lord Judge CJ Review of the Administration of Justice in the Courts (London: TSO, 2010).
12. See eg L Marafioti, Italian criminal procedure: a system caught between two traditions
in Jackson, Langer and Tiller (eds), above n 1, p 94.
2011 The Author
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expense.13 Strategies for dealing with this might include either disappearing individuals from the system altogether or speeding them through it, keeping costs to a
minimum. In criminal cases, this involves the emergence of an administration-centred
management ethos engaged in inventing new ways to process large numbers of
criminals or suspected criminals at minimal cost,14 although another impetus was an
ideological preference for the methods of manufacturing industry and the discipline of
the market.15 Thus the traditional autonomy and discretions of the professionals
working in the police and Crown Prosecution Service (CPS)16 and also the courts17
may conflict with various performance targets set by managers.18 Similarly, affording
those accused of crimes free choice in relation to how matters proceed may conflict
with the goals of caseload reduction and speed.
Would it matter if our criminal processes ceased to be adversarial, and became
instead speedy and cheap to run? Some writers believe adversarialism to be an empty
label; they make an empirical case that the dichotomy between adversarial and
inquisitorial procedures is inaccurate, primarily because no individual jurisdiction
precisely displays all the features associated with one or the other system in Damakas classic model.19 In that sense, all systems are already hybrids, each incorporating different elements from a wide-ranging menu of procedures; in the absence of
a pure example, the distinction is meaningless, or at least, misleading. In reply, it has
been said that, nevertheless, an ideal inquisitorial or adversarial system offers a
useful conceptual tool for analysis and description.20 Should that be the sole purpose
13. See the Rt Hon Kenneth Clarke MP (Justice Secretary) Speech, Centre for Crime and
Justice Studies, London, 30 June 2010 available at http://www.channel4.com/news/articles/uk/
prisons+in+the+uk+are+a+costly+and+ineffectual+failure+according+to+justice+secretary+
ken+clarke/3696277.
14. I Brownlee New Labour new penology? Punitive rhetoric and the limits of managerialism in criminal justice policy (1998) 25 JLS 313: L Bridges Towards a culture of complacency: criminal justice under new Labour (2010) 79 Criminal Justice Matters 22.
15. RB Denhardt The Pursuit of Significance: Strategies for Managerial Success in Public
Organizations (Belmont CA: Wadsworth, 1993); A Freibert Managerialism in Australian
criminal justice: RIP for KPIs? (2005) 31 Monash L Rev 12; A Sanders, R Young and M Burton
Criminal Justice (Oxford: Oxford University Press, 4th edn, 2010).
16. M Drakeford and M Vanstone Beyond Offending Behaviour (Aldershot: Arena, 1997).
17. Brownlee, above n 14; National Audit Office Administration of the Crown Court (London:
TSO, 2009); and across the common law world: B Mahoney Changing Times in Trial Courts
(Williamsburg Virginia: National Center for State Courts, 1988); R Sackville From access to
justice to managing justice: the transformation of the judicial role (2002) 12 Journal of Judicial
Administration 5.
18. E McLaughlin and J Muncie The criminal justice system: new Labours new partnerships in J Clarke, S Gewirtz and E McLaughlin (eds) New Managerialism, New Welfare?
(London: Sage, 2000) p 171; E Cape Adversarialism lite: developments in criminal procedure
and evidence under Labour (2010) 79 Criminal Justice Matters 25; Home Office Departmental
Report CCM 7396, 2008. The new Home Secretary has promised to scrap police targets,
S ONeill More power to the people, less red tape in new deal for the police The Times 20 May
2010.
19. Eg M Cappeletti and BG Garth Civil Procedure: XVI International Encyclopaedia of
Comparative Law (Tbingen: JCB Mohr, 1996) pp 3132; a rather different objection in
Summers, above n 1.
20. O Chase American exceptionalism and comparative procedure (2002) 50 American
Journal of Comparative Law 277; S Field Fair trials and procedural tradition in Europe (2009)
20 OJLS 365; P Roberts Faces of justice adrift? Damakas comparative method and the future
2011 The Author
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of the categorisations, it matters little whether systems become more or less adversarial; they would simply be operated within a different overall culture and should be
interpreted in a different way. And it does indeed seem that each of the two traditions
operates as a powerful cultural lens. In the International Criminal Court (ICC) and the
International Criminal Tribunal for the former Yugoslavia (ICTY), attempts to merge
two different legal approaches have had disquieting results.21 Civil lawyers regard the
confirmation hearing at ICC as analogous to instruction in civil systems, whereas
common lawyers consider it a kind of filter to ensure only really significant cases go
to trial. Some of the judges do not understand the significance of a plea of not guilty.
Yet this tool for analysis can inspire great passion. In jurisdictions such as Italy22 and
Russia,23 which have attempted to graft adversarial elements on to inquisitorial structures, lawyers mounted fierce resistance, not simply because of reluctance to learn
new tricks. There is a deeply felt ideological objection to the notion that the outcome
of a criminal trial is a matter for the parties to decide to their own satisfaction. The
inquisitorial/adversarial dichotomy seems to reflect some deeply rooted views about
the proper function of criminal proceedings in terms of the relative importance of
ascertaining the true facts as opposed to using party control over process as a protection against state power.
Change therefore will matter, if the adversarial features we are losing reflect an
ideology containing important values, and if those values are not effectively protected
by the system that is emerging to replace it. The essential principles of legality and due
process are not, of course, exclusive to adversarial proceedings; the right to a fair
hearing under Art 6 of the European Convention on Human Rights (ECHR) must be
respected by all signatory states. It may not be sacrificed in the name of expediency;
derogations must be justified by weighty considerations.24 The inclusion by the
European Court of Human Rights (ECtHR) of the right to an adversarial trial as a fair
trial right under Art 6 of the Convention may give the appearance of convergence, but
their interpretation of the right does not afford control over proceedings. Adversarial
trial in this context means merely that all evidence must be produced in the presence
of the accused at a public hearing with a view to adversarial argument.25 Hence loss
of control over the conduct of the case does not in itself inevitably threaten fair trial
rights, but replacement of an adversarial system with a managerial one that lacks the
protection for such rights employed by inquisitorial systems does threaten fundamental due process values. The emergence of a managerialist system of criminal justice
of common law evidence in Jackson, Langer and Tiller (eds), above n 1, p 295; Cappeletti and
Garth, above n 19; Summers, above n 1.
21. K Ambos International criminal procedure: adversarial, inquisitorial or mixed?
(2003) 3 International Criminal Law Review 1; M Langer The rise of managerial judging in
international criminal law (2005) Am J Comp L 835.
22. WT Pizzi and M Montagna The battle to establish an adversarial trial system in Italy
(2003) 25 Michigan Journal of International Law 429; G Illuminati The frustrated turn to
adversarial procedure in Italy (Italian criminal procedure code of 1988) (2005) 4 Washington
University Global Studies Law Review 567; Marafioti, above n 12.
23. S Pomorski Modern Russian criminal procedure: the adversarial principle and guilty
plea (2006) 17 Criminal Law Forum 129; PA Jordan Defending Rights in Russia: Lawyers, the
State and Legal Reform in the Post-Soviet Era (Vancouver: University of British Columbia
Press, 2005).
24. Lanz v Austria App No 24430/94 ECtHR Judgment, 31 January 2002 [52]; cf Ramanauskas v Lithuania App No 74420/01 ECtHR Judgment, 5 February 2008.
25. Eg Brandstetter v Austria (1993) 15 EHRR 378; see Jackson, above n 1.
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has not been accompanied by profound consideration of the values that underpinned
traditional structures in England and Wales. Rather, it has evolved through the combined effects of a series of independent ad hoc measures that fundamentally change
pre-trial processes and trial procedures.26 The absence of any normative underpinning
to these developments poses three problems. One is that adversarialism is more than
an empty label or aid to the interpretation of judicial systems; it has at its core an
unshakeable commitment to the fundamental importance of protecting the parties by
allowing them, rather than the state, to direct proceedings. The second is that managerialism is indifferent to the fair trial rights protected by both traditional models in
their different ways. Third, the pursuit of managerialist goals affects the ability of both
sides in a criminal case to direct its outcome. This may restrict the ability of prosecutors to bring a criminal to account, with a negative effect on crime control.
ACCURACY, DEFENDANT AUTONOMY AND PARTY AUTONOMY
Civilian and common law models of criminal procedure share a commitment towards
accuracy of verdict. Adversarial traditionalists claim that to ask parties who are highly
partial and highly motivated to dig for the facts is the most effective way to ensure that
nothing is missed,27 and that partisan manipulation of evidentiary materials, assuming
equality of arms, is the most effective way to place an independent tribunal of fact in
a position to determine the truth an assumption at best unproven and at worst highly
implausible.28 Civil law jurisdictions see the criminal process as a truth-finding
exercise29 conducted by the state; the policy goals of activist governments are more
likely to be achieved where verdicts are accurate. Neither system claims perfection in
relation to establishing the truth, but accuracy is not the only objective of any trial. Art
6 sets out a number of due process principles30 apparently designed to offer protection
to accused persons against the might of the state. Additionally, process values such as
ensuring that the state does not stoop to obtaining evidence by illegal methods will
trump the pursuit of the truth in both inquisitorial and adversarial proceedings.31 So
the goal of accuracy can give way to perceptions of fairness in terms of the way the
forces of government have behaved; that may lead to an undeserved acquittal, but not
the conviction of an innocent person. Not even the most unreconstructed utilitarian
would seriously argue that a system of criminal justice might tolerate procedures
26. See the warning, in relation to the Runciman Commissions recommendations for reform,
of the effects of an absence of normative framework, S Field and P Thomas Justice
and efficacy? The royal commission on criminal justice (1994) 21 Journal of Law and
Society 1.
27. Sir P Devlin The Judge (Oxford: Oxford University Press, 1979) p 61; JH Wigmore
Evidence in Trials at Common Law (Boston MA: Little Brown and Co, 4th edn, 1974) V sect
1367.
28. N Jrg, S Field and C Brants Are inquisitorial and adversarial systems converging? in
C Harding et al (eds) Criminal Justice in Europe: a Comparative Study (Oxford: Clarendon,
2002) p 41.
29. B Schnemann Zur reform der hauptverhandlung im strafprozeb (1978) 125 Goltdammers Archiv fr Strafrecht 161.
30. Signatory states must provide a public hearing before an independent impartial tribunal
within a reasonable time; accused persons must have reasonable time and resources to prepare
their defence, and access to legal representation.
2011 The Author
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whose design presents a clear risk of innocent defendants being convicted, for
instance, to serve as a deterrent to others; the fear of being used as an example in that
way is likely to undermine confidence and could lead to social breakdown.
System integrity and commitment to the truth are, then, values shared by both
adversarial and inquisitorial criminal proceedings. Adversarialism is identified by the
significance it attaches to freedom to act and therefore bargain. Party autonomy in the
sense of case ownership must be distinguished from defendant autonomy, a fair trial
right under the EC, which means that defendants are entitled to respect as individuals
and to participate in their own defence.32 To its proponents, the adversary system [is]
the best system for protecting individual dignity and autonomy.33 According to
Damaka, the reactive state inevitably accepts a dispute resolution model,34 as in the
adversarial concept of the guilty plea; if the crime charged is admitted, or a plea to a
lesser charge accepted, the case is closed. Plea bargaining is the ultimate expression of
party autonomy, even potentially overriding system commitment to the truth. Indeed,
the dispute resolution model is anathema to the many continental lawyers who believe
that punishment for violation of the criminal law is not a matter for agreement
between prosecution and defence.35 It could be concluded therefore, that the key
ideological difference between the two systems is that party control overrides commitment to the truth in the common law systems, whereas in civil law systems the
reverse is the case. However, the gap between caseloads and resources is forcing the
guilty plea upon many European countries,36 not so much in recognition of
the philosophical importance of party autonomy but as a by-product of their drive to
manage their criminal processes more cost-effectively.
Bargains involving plea and sentence are not the most significant instance of
protection of accused persons through the exercise of party autonomy. Not every
bargain brings benefit. Party ownership of the case, on the other hand, involves the
ability to amass evidence and choose witnesses for oneself, as opposed to having to
petition the court to do it, and to challenge opponents evidence by means of confrontation and cross-examination. The correspondingly limited judicial role reflects
historical distrust of public officials and the complementary demand for safeguards
against abuse37. However, emphasis on party autonomy does not necessarily reflect
suspicion that state officials may be partial. Their own efficiency depends heavily on
the adequacy of the resources provided to them and the information that they receive.
According to Langbein, the adversarial trial developed from the late seventeenth
32. I am indebted to Professor Jackson for the point. See J Jackson Autonomy and Accuracy
in the Development of Fair Trial Rights University College Dublin Working Papers in Law,
Criminology and Socio-Legal Studies Res Paper No 09/2009, available at http://
papers.ssrn.com/sol3/papers.cfm?abstract_id=1407968; also Summers, above n 1.
33. EE Sward Values, ideology and the evolution of the adversary system (1989) 64 Indiana
Law Journal 301 at 302.
35. RJ Allen and GN Alexakis Utility and truth in the scholarship of Mirjan Damaka in
Jackson, Langer and Tiller (eds), above n 1, p 329; T Weigend The decay of the inquisitorial
ideal: plea-bargaining invades German criminal procedure in ibid, p 39.
36. M Langer From legal transplants to legal translations: the globalization of pleabargaining and the Americanization thesis in criminal procedure (2004) 45 Harvard Int LJ 1;
Weigend, above n 35; Marafioti, above n 12; SC Thaman The two faces of justice in the
post-Soviet legal sphere: adversarial procedure, jury trial, plea-bargaining and the inquisitorial
legacy in Jackson, Langer and Tiller (eds), above n 1, p 99.
37. MJ Damaska Two models of criminal procedure (1973) 121 U Penn L R 506 at 583.
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century in England as the best way of protecting defendants from ill-informed

judges.38 And while we may be confident that matters have improved a great deal
since, it remains the case that giving control of procedures to the parties reduces the
prospect of corruption or intimidation. The chief justification of adversarial proceedings, then, is their ability to protect individual rights and freedoms.39 In experimental
studies by Thibaut and Walker40 and Lind and Tyler,41 participants, including volunteers from France and Germany,42 demonstrated a clear preference for procedures
designed to the adversarial model. Neither system demonstrated superiority as an
instrument of investigation. It seems that adversarial procedures were favoured for the
apparently greater emphasis placed upon values such as autonomy, dignity and
respect. Criminal trials have a significance beyond the identification of offenders and
the selection of measures to ensure that they do not damage society again. The
adversarial tradition takes account of the difficulty of ensuring fairness between
participants when one is the state itself. Criminal cases are unlike civil ones in that in
the former it is always the defendant who has most to lose.
It does not follow that accused persons may pursue their own interests without
restraint; that would risk trials of inordinate length and complexity. Procedural devices
such as pleadings prevent proceedings running on outrageously.43 There are longstanding rules that cut debate short, sometimes abruptly. An example is that a witnesss answer to a question put in cross-examination on a matter relating to his or her
credibility may not be challenged by contradictory evidence,44 even where the crossexaminer has evidence that could easily disprove the witnesss denial. And it has
become necessary to impose constraints on the behaviour of lawyers operating within
adversarial proceedings, in terms of tactical game playing at the expense of revealing
the truth, and in terms of treatment of witnesses and victims. This rebalancing is
discussed below. Adaptations of the traditional Anglo-American model that preserve
the most crucial elements of party autonomy, while both protecting the apparently
competing interests of other participants and promoting efficiency, are perfectly possible. It is not clear, however, that the way our system of criminal justice is developing
does preserve that essential adversarial feature. Rights to autonomy of any kind mean
nothing unless those who exercise them have sufficient information and understanding
of their situation to exercise their choices in their own best interests. Accused persons
must have full disclosure of the case against them and any pertinent legal advice
38. JL Langbein The Origins of Adversary Criminal Trial (Oxford: Oxford University Press,
2003).
39. D Luban The adversary system excuse in D Luban (ed) The Good Lawyer: Lawyers
Roles and Lawyers Ethics (Totowa NJ: Rowan and Allanheld, 1984) p 83; M Freedman
Lawyers Ethics in an Adversarial System (Indianapolis IN: Bobbs-Merill, 1975);
J Spigelman The new public management and the courts (2001) 75 Aus Law Journal 748;
R Burns The Death of the American Trial (Chicago: University of Chicago Press, 2009); DK
Brown The decline of defense counsel and the rise of accuracy in criminal adjudication (2005)
93 California Law Review 1585 at 1590.
40. J Thibaut and L Walker Procedural Justice (Hillside NJ: Erlbaum, 1875).
41. EA Lind and TR Tyler The Social Psychology of Procedural Justice (London: Plenum,
1988).
42. Thibaut and Walker, above n 40; J Thibaut and L Walker A theory of procedure (1978)
66 California Law Review 541.
44. Harris v Tippett (1811) 2 Camp 637. There are exceptions to the rule.
2011 The Author
527
before they make decisions that will significantly affect their future. Should those
features be absent, the appearance of defendant autonomy is an illusion, and control
over the case non-existent.
ADVERSARIALISM IN AN AGE OF DIMINISHING RESOURCE

Over the last ten years or so, there has been concern at the number of cracked trials,45
the length of complex trials, and delays and repeated adjournments at magistrates
court level.46 A perceived need to impose restrictions upon parties to criminal proceedings has become the focus of considerable judicial concern and activity:
The defendant is entitled to a fair trial . . . It is not however a concomitant of
the entitlement to a fair trial that either or both sides are further entitled to take as
much time as they like . . . Resources are limited . . . It follows that the sensible use
of time requires judicial management and control.47
Like civil processes in England following the Woolf Report,48 criminal proceedings
have developed new powers for judges and increasingly emphasised the value of early
settlement.49 Although there are indications that judicial neutrality should be maintained,50 judges are now required to intervene proactively in the management of
criminal cases before and during trial, to encourage agreement where possible and to
ensure that trials begin promptly, are as narrowly focused as possible, and do not last
longer than necessary. Judges were themselves the prime movers in this, developing
radical new principles even before the new Criminal Procedure Rules Committee
(CrimPRC)51 first produced the Criminal Procedure Rules (CrimPR) in 2005.52 Sir
Robin Aulds Review53 approved the judicial approach, which was in turn influential
in the content of the CrimPR.
45. Where a plea of guilty is entered only at the last minute before the trial is due to
commence, disrupting court lists as other trials have to be brought forward.
46. Sir R Auld Review of the Criminal Courts of England and Wales: Report (London: TSO,
2001) pp 481487, available at http://www.criminal-courts-review.org.uk/ccr-00.htm; Lord
Chancellor and Attorney-General Secretary of State for Home Department Justice for All Cm
5563, 2002; in Scotland, Lord Bonomy Improving Practice: The 2002 Review of the Practices
and Procedures of the High Court of Justiciary (Edinburgh: Scottish Executive, 2002), available
at http://www.scotland.gov.uk/Publications/2002/12/15847/14122.
47. Jisl [2004] EWCA Crim 696; [2004] All ER (D) 31 (April) 114 at [114] per Judge LJ: cf
Chaaban [2003] EWCA Crim. 1012; [2003] All ER (D) 355.
48. Lord Woolf MR Access to Justice Final Report (London: Department of Constitutional
Affairs, 1996), available at http://www.dca.gov.uk/civil/final/contents.htm.
49. H Genn Judging Civil Justice Hamlyn Lectures 2008 (Cambridge: Cambridge University
Press, 2010).
50. Should refrain from excessive intervention Cordingley [2007] EWCA Crim 2174, Cole
[2008] EWCA Crim 3234, Copsey [2008] EWCA Crim 2043. But see D [2007] EWCA Crim
2485 at [41]; Berry [2010] EWCA Crim 313.
51. Established Courts Act 2003, s 72(1). The principles were first developed in decisions
such as Chaaban, above n 47 and Jisl above n 47; See RL Denyer The changing role of the
judge in the criminal process (2010) 14 E & P 96.
52. The Criminal Procedure Rules 2005, SI 2005/384; the 2005 Rules are replaced by the
(chiefly consolidating) Criminal Procedure Rules 2010, SI 2010/60.
53. Auld, above n 46.
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There was considerable support within the legal profession54 for the creation of the
CrimPRC, but it is not clear that it sprang from an appreciation of the impetus for
culture change. Discussion55 of the merits of devising a set of rules tended to concentrate on the need for simplification and codification of existing criminal procedure
rules, then contained primarily in a diverse collection of practice directions. Lady
Scotland informed the House of Lords that the object was to codify criminal procedure
rules via one rule-making body, so that the Rules would be more accessible and more
consistent. However, perhaps more significantly, she added: We hope that will underpin the goal of greater integration in the criminal justice system,56 a remark she was
not required to explain. The resulting quiet revolution,57 in fact has profound implications beyond the purely practical, and affecting the balance of power between the
parties and the Bench.
JUDICIAL CASE MANAGEMENT: THE SEA CHANGE58

The new interventionist judge has emerged partly in reaction to the failure of trial
lawyers to comply with statutory defence disclosure requirements. Under the Criminal
Procedure and Investigations Act, a defence case statement must set out, inter alia, the
nature of the accuseds defence, indicate the matters of fact on which they take issue
with the prosecution and why, particulars of any other factual matters on which they
intend to rely, any point of law they wish to take, and any authority on which they
intend to rely for that purpose.59 Although the Court of Appeal has now declared war60
on defence case statements containing only generalities such as The accusation is
denied,61 trial judges seem reluctant to discipline the defence through measures, such
as the drawing of adverse inferences,62 which penalise the defendant.63 An exasperated
Moses LJ, however, went so far as to suggest that a trial judge may be entitled to
disallow any defence not disclosed at the proper time at the Plea and Case Manage54. Including the Law Society, the General Council of the Bar and the Criminal Bar Association: The Courts Bill [HL] House of Commons Library, Research Paper 03/52 (2003).
55. Eg J Spencer The case for a code of criminal procedure [2000] Crim LR 519; Home
Office Criminal Justice: the Way Ahead Cm 5074, 2001 and the White Paper Justice for All,
above n 46.
56. Hansard HL Deb, vol 644, col 645, 1 Feb 2003.
57. Lord Woolf CJ writing in The Times 8 April 2005.
58. R (on the application of the DPP ) v Chorley Justices [2006] EWHC 1795 per Thomas LJ
at [25].
59. Criminal Procedure and Investigations Act 1996, s 6, as amended by Criminal Justice Act
2003, s 33 and Criminal Justice and Immigration Act 2008, s 60. Magistrates also are now
required to ensure defence cooperation: Protocol on Criminal Case Management in the Magistrates Court, available at http://www.justice.gov.uk/criminal/procrules_fin/contents/index/
docs/magistrates-court-trial-preparation-form-notes-for-guidance-august-2010.pdf.
60. Writtle v DPP [2009] EWHC 236; R v Bryant [2005] EWCA Crim 2079; RL Denyer The
defence statement [2009] Crim LR 340.
61. J Plotnikoff and R Woolfson A Fair Balance?; Evaluation of the Operation of Disclosure Law RDS Occasional Paper No 76 (London: Home Office, 2001); HMPSI Disclosure:
Report of the Follow-Up Review of the Duties of Disclosure of Unused Material Undertaken by
the Crown Prosecution Service (London: HMPSI, 2009); Denyer, above n 60.
62. Criminal Procedure and Investigations Act 1996, s 11.
63. Unless disclosure was very very late indeed: Denyer, above n 60, at 343.
2011 The Author
529
ment Hearing (PCMH).64 It was entirely predictable that advocates raised in a culture
of keeping their powder dry would resist a transparent system designed to facilitate
agreement on the issues before the case is heard.65 Indeed, the Rules aim to change that
culture. Where issues are identified in advance, it is easier to gauge the likely length
of the trial and avoid adjournments while legal points are disputed. It may assist also
with accuracy of verdict. Conducting trials with precision is one way of getting to the
truth more often.66
Judges and justices clerks have a duty to manage litigation, enforce the CrimPR67
and ensure that case management directions are complied with.68 They should set
timetables requiring prosecution and defence to cooperate and exchange information
pre-trial so that key issues can be identified, and if non-contentious, agreed.69 At
PCMHs, judges will expect a defence case statement to have been served on the
prosecution. They must shoulder responsibility for and rectify court failings such as
late, cracked70 adjourned or prolonged trials, and duly exercise strict controls over
litigants handling of their own cases. However, case management goes further than
merely ensuring at the PCMH that the parties are prepared for the trial; judges have
been upheld by the Court of Appeal in requiring written submissions rather than oral
argument,71 and in limiting cross-examination and preventing the defence from calling
certain witnesses. This was good trial management.72 They may challenge the
number of witnesses to be called and the length of time allocated to their examination.73 Judges who believe themselves neutral umpires may be uncomfortable with
their new role.74
The parties, meanwhile, have a duty to prepare and conduct criminal cases in
accordance with the overriding objective.75 They must each nominate case progression officers who should liaise with each other and with the courts case progression
officer.76 They must also comply with the CrimPR, practice directions, directions
64. In S and L [2009] EWCA Crim 85: comment, Ormerod, R v S and L [2009] Crim LR 723
at 724726. Contrast Tinnion v Reading Crown Court [2009] EWHC (Admin) 2930 where it
was held that the appropriate recourse where an alibi notice has not been served is to make
adverse comment and allow adverse inferences to be drawn, rather than deny the accused the
defence.
65. See eg arguments of A Hall Where do the advocates stand when the goalposts are
moved? (2010) 14 E & P 107.
66. NZLC Criminal Pre-Trial Processes: Justice Through Efficiency Report 89 (Wellington:
Ministry of Justice and New Zealand Law Commission, 2005) at [192].
67. CrimPR r 3.2(1).
68. R v Kyham [2008] EWCA Crim 1612 at [152] per Judge LJ.
69. CrimPR r 3.2(2).
70. Where a plea of guilty is entered only at the last minute before the trial is due to
commence, throwing lists into chaos, as other trials have to be brought forward. Lord Judge CJ,
above n 11.
71. K and Others [2006] EWCA Crim 835.
72. Lee [2007] EWCA Crim 764 at [28] per Thomas LJ.
73. Ibid.
74. In parallel developments, Department of Justice of Canada Guiding Principles for Effective Case Management (2009), available at http://canada.justice.gc.ca/eng/esc-cde/eff/p2.html;
M Langer The rise of managerial judging in international criminal law (2005) Am J Comp L
835. But see Judge LJ, Evidence to the Select Committee on Constitutional Affairs, 22 June
2004.
75. CrimPR r 1.2(1)(a).
76. CrimPR r 3. 4(1)(a).
2011 The Author
530
made by the court,77 and at once inform the court and all parties of any significant
failure (whether or not that participant is responsible for that failure) to take any
procedural step required by these Rules, any practice direction or any direction of the
court.78 Thus counsel must inform the court of breaches by their own client, redefining the advocate-client relationship. Lawyers must reconcile their obligations to the
court with those owed to their clients and engage with each other to the extent
necessary to prepare the case for the case management process. They may not further
their clients interests by taking advantage of errors made by their opponents79 or by
using tactical manoeuvres.80 The new ethos requires the court, prosecution and defendant (and defendants representative if any) to promote the efficient and expeditious
disposition of the case. The overriding objective, with which all participants in a
criminal case must comply, demands that criminal cases be dealt with justly.81 The
Rules consider an element of justice to be dealing with the case efficiently and
expeditiously.82 Thus even the defendant, represented or otherwise, must accept that
efficiency is part of justice. The aphorism justice delayed is justice denied is frequently offered to explain the advantages of this approach to the defence, and indeed
many defendants will benefit from costs and timescales being kept within reasonable
limits. Also, the CrimPR recognise that the needs of efficiency must be balanced
against other time-honoured principles; also incorporated into the definition of
justice are the goals of acquitting the innocent and convicting the guilty;83 recognising the rights of a defendant, particularly those under Art 6 of the ECHR (and thus
the presumption of innocence);84 and dealing with the case in ways that take into
account, inter alia, the gravity of the offence alleged, and the severity of the consequences for the defendant.85 Against this, all participants must take account also of the
severity of the consequences for others affected,86 the needs of other cases87 and the
interests of witnesses, victims and jurors.88
Although it has been claimed that the CrimPR uphold a robust adversarial process,89 the inevitable consequence of these changes, together with the ever-increasing
rigour of defence disclosure requirements, is that elements of party control over the
conduct of the case are transferred to the court. The new emphasis on cooperation
between the parties challenges many of the longstanding convictions and practices of
criminal advocates who are used to entirely partisan activity. For example, the Court
of Appeal in advance of the CrimPR developed the principle that, rather than profit
77. CrimPR r 1.2(1)(b).
78. CrimPR r 1.2(1)(c): the duty to grass up.
79. Gleeson [2003] EWCA Crim 3357; R (on the application of the DPP) v Chorley Justices
[2006] EWHC 1795 at [26]. L v DPP [2009] EWHC 238. Hughes v DPP [2003] EWHC 2470;
Khatibi v DPP [2004] EWHC (Admin) 83.
80. JL v DPP [2009] EWHC 238; Malcolm v DPP [2007] EWHC 363.
81. CrimPR r 1.1(1).
82. CrimPR r 1.1(2)(e).
83. CrimPR r 1.1(2)(a).
84. CrimPR r 1.1(2)(c).
85. CrimPR r 1.1(2)(g).
86. Ibid.
87. CrimPR r 1.1(2)(g).
88. CrimPR r 1.1(2)(d).
89. Lord Phillips CJ The Objectives and Content of the First Criminal Procedure Rules March
2005, available at http://www.justice.gov.uk/criminal/procrules_fin/contents/frontmatter/
foreword.htm.
2011 The Author
531
from legal errors in the prosecution case, the defence are obliged to flag them up
before the trial begins. In the past defence lawyers would simply have sat back and, at
the trial, waited until close of the prosecution case to end the matter with a successful
submission of No Case to Answer. Adopting such a tactic now will simply mean that
the prosecution will be granted an adjournment to rectify the mistake.90 Arguably, the
effect of CrimPR r 3.10(h), which requires each party to indicate at the PCMH
whether he intends to raise any point of law that could affect the conduct of the trial
or appeal entrenches this decision. The new ethos of cooperation demands a significant culture change; advocates brought up within adversarial traditions that regard the
independent criminal advocate as a prober, an analyser, a scrapper, a man with a
strange devotion to his client91 are unlikely to abandon their combative approach to
defence work while they can see no advantage to their client in doing so. In order for
the new regime not to be resented and resisted, they must agree that restrictions on
their freedom of action are justified in terms not only of efficacy but also of fairness.
Nevertheless, the recharacterisation of criminal trials demanded by the combination of interventionist judges with new responsibilities for the parties seems to have
generated little debate. This is not altogether surprising. The nature of procedural
reform is generally a matter of profound indifference not only to laymen but also to
most of the legal profession. Rules of legal procedure are usually regarded as neither
the focus of philosophical debate nor as set in stone;92 they must adapt to current
problems and perceived impracticalities. However, legal procedural rules are the
foundation on which legality rests. They are rarely just a matter of bureaucracy for
participants in the system they are also central to the notion of a fair trial.93 Sound
procedure maximises the likelihood of a correct outcome. Major changes can have
profound effect on the substantive law. Victorian reform of procedure opened the
courts to the non-privileged: the effect on the common law was far greater than the
effect of the political revolutions of France and the United States on the law of those
countries.94 If proof were needed of the impact that restructuring procedures can have,
our experience of the impact on civil litigation of the introduction of the Civil
Procedure Rules following the Woolf Report provides it.95
There is no valid reason to object in principle to reform designed to promote the
efficient use of court time. Even in the USA, with its traditional national hostility to
Big Government and bureaucracy,96 caseflow management has been accepted
for years.97 In the criminal context, reasonable time limits are supported by the
90. Gleeson, above n 79.
91. D Mellinkoff The Conscience of a Lawyer (St Paul MN: Thompson West, 1973) p 270.
92. Spencer, above n 55.
93. Legal Action Group The Auld Review of the Criminal Courts: Response of the Legal
Action Group (London: LAG, 2002), available at http://www.lag.org.uk/Templates/
Internal.asp?NodeID=91619.
94. HP Glenn Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford
University Press, 2007) p 242.
95. Lord Justice Jackson Civil Litigation Costs Review, Preliminary Report (Judicial Office,
2009); Lord Justice Jackson Civil Litigation Costs Review, Final Report (London: TSO, 2009).
96. P Huntington Paradigms of American politics: beyond the one, the two and the many
(1974) 89 Pol Sci Q 1 20.
97. In relation to criminal trials, see Brown, above n 39; BJ Ostrom and RA Hanson Efficiency
Timelines and Quality: A New Perspective from Nine State Criminal Trial Courts (Williamsburg, VA: National Center for Trial Courts, 1999). But California has the most highly developed
system with draconian defence disclosure requirements under Proposition 115 (1990). Other
2011 The Author
532
American Bar98 and are in Damakas view consistent with adversarialism;99 as noted
above, adversarial trials have long operated restrictions on evidence for pragmatic
reasons. Nevertheless there is considerable concern about the defence disclosure
requirements introduced in recent years. Although pre-trial disclosure has been rationalised in the language of managerialism rather than the language of legal theory or
doctrine,100 it is difficult to defend, on any theory, the idea that one side should be able
to take the other by surprise to the extent that the accuracy of the verdict is substantially undermined. Accuracy is one of the objectives of the adversarial trial. The
defence would have to be disclosed at the trial stage and so pre-trial disclosure is
unobjectionable where it simply moves the timeframe of argument forward. This in
turn increases the likelihood of early resolution of the dispute or the accuracy of the
verdict, should the charge be contested.101 The requirements must be reasonable,
however. Time limits do pose logistical headaches for defence lawyers who must, in
order to consider their defence, absorb the information in CPS documents, have
managed to secure meetings with their client, and have contacted likely witnesses.
Pressure of time may not be conducive to a spirit of cooperation, particularly if the
prosecution documents are incomplete and/or late.
More contentiously, defence disclosure confronts lawyers with some challenging
questions of professional ethics in terms of the competing interests of court and client,
conflicting loyalties unknown in traditional adversarial settings. The Rules are said to
respect legal professional privilege:
The overriding objective . . . must not be read as detracting from a defendants right to silence or from the confidentiality properly attaching to what passes
between a lawyer and his client. Such rights in any event are guaranteed by the
Human Rights Act 1998.102
Yet, to many lawyers, the obligation to disclose their defence amounts to a breach of
legal professional privilege. The statement quoted is, however, accurate in that this
derogation from the confidentiality principle derives not from the Rules, but from
examples of case management in the common law world include the diverse systems across
Australia: Australian Government and Australian Institute of Criminology Criminal Trial
Delays in Australia: Trial Listing Outcomes, Research and Public Policy Series No 74 (Canberra: Australian Institute of Criminology, 2007); in New Zealand, W Searle et al Status
Hearings Evaluation: a New Zealand Study of Pre-Trial Hearings in Criminal Cases (Wellington: Minstry of Justice and New Zealand Law Commission, 2004); NZLC Criminal PreTrial Processes: Justice Through Efficiency Report 89 (Wellington: Minstry of Justice and New
Zealand Law Commission, 2005).
98. American Bar Association Criminal Justice Standards: Speedy Trial and Timely Resolution of Criminal Cases (Washington DC: ABA, 3rd edn, 2006); American Bar Association
Principles for Juries and Jury Trials Stephan Landsman reporter (St Paul MN: Thompson West,
2005).
99. Damaka, above n 2 and 3.
100. C Moisidis Criminal Discovery: From Truth to Proof and Back Again (Sydney: Sydney
Institute of Criminology, 2008).
102. Lord Phillips, above n 89; The Law Society recommends defence advocates to consider
whether compliance with CrimPR in any particular case would jeopardise human rights or legal
professional privilege: Law Society Criminal Procedure Rules: Impact on Solicitors Duties
to the Client (2008), available at http://www.lawsociety.org.uk/documents/downloads/
practicenote_criminalprocedurerules.pdf.
2011 The Author
533
statutory provisions. Indeed, only Parliament may legislate in derogation of legal

professional privilege, and then only because of some greater public interest.103 The
defence disclosure requirements have the potential to inhibit the provision of legal
advice in criminal cases. It would be no surprise to find lawyers informing the court
that they have been instructed by their clients not to comply. Should a client do so,
their lawyer would normally feel obliged by those instructions to defy the court. It is
also possible that lawyers who consider a specific disclosure to undermine legal
professional privilege will resist it on the ground of a potential conflict with the right
to legal representation protected in Art 6.
The problem of professional privilege is likely to come into greater prominence as,
despite objections from the legal profession, a provision that has languished unimplemented for several years has suddenly been brought into force. Section 34 Criminal
Justice Act 2003104 requires the defence to provide at the pre-trial stage a notice
disclosing full identification details of the witnesses they intend to call. The chief
reason for the implementation of the section appears to be the alleged impracticality
of investigating witnesses for such matters as criminal record during the trial.105 The
Court of Appeal had considered that such a requirement would indubitably undermine
litigation privilege, which relates to communications made at the stage when litigation
is pending or contemplated. Litigation privilege is based on the idea that legal
proceedings take the form of a contest in which each of the opposing parties assembles
his own body of evidence and uses it to defeat the other.106 Laws LJ explained the
risks attached to early identification of defence witnesses: if the case does not remain
confidential as it is being prepared, witnesses could be discouraged from cooperating;
there is the risk that false points could be taken, the truth could be distorted, witnesses
manipulated.107 To allay fears in relation to the involvement of the police with potential defence witnesses, the implementation of s 34 was accompanied by a Code of
Practice that provides that no such interview can take place without a witnesss
consent. Also, the witness may have their own legal representative present, although
they may not necessarily receive legal aid funding for that. The defendants solicitor
attends only with the witnesss consent.108 Such interviews will be rare, and reserved
for the most serious cases.109 Often, the police will know of the witnesses in any event,
and if not, will not have the resources to interview them. However, there may be many
potential defence witnesses who will be disturbed by even a slight risk of a police
103. Three Rivers District Council v Governor and Company of the Bank of England (No 6)
[2005] 1 AC 610; see R Pattenden and L Skinns, Choice, privacy and publicly funded legal
advice at police stations [2010] 73 MLR 349.
104. Amending Criminal Procedure and Investigations Act 1996, s 6C; Criminal Justice Act
2003 (Commencement no 24 and Transitional Provisions) Order 2010, SI 2010/1183 brought
the section and its associated provisions into force in England and Wales from 1 May 2010.
105. Ministry of Justice, Explanatory Memorandum to the Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations
2010 [7.3].
106. R (on the application of Kelly) v Warley Magistrates Court (the Law Society intervening)
[2007] EWHC 1836, Laws LJ at [18] quoting Lord Rodgers of Earlsferry in Three Rivers DC
v Bank of England (No 3) [2004] UKHL 48, 52.
107. Ibid, Laws LJ [22].
108. Code of Practice for Interviews of Witnesses Notified by Accused order 2010, available at
http://www.opsi.gov.uk/acts/acts1996/related/ukpgacop_19960025_en.pdf.
109. Lord Bach, House of Lords Grand Committee, 18 March 2010; A Edwards Defence
witness notices Law Gazette 6 May 2010.
2011 The Author
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interview before trial;110 should their names not be disclosed, however, those who do
testify may find themselves cross-examined as to the reason for the non-disclosure.
The enhanced opportunity to scrutinise witnesses criminal records scarcely seems
sufficient justification for this derogation of the Art 6(3) right to consult a lawyer in
private a substantive as well as a procedural right.111 The risk of collusion was held
insufficient in Lanz v Austria.112
It could be argued that in the new cooperative climate there is no longer a reason
to protect a defendants litigation privilege, although it is claimed that the CrimPR
uphold the adversarial tradition: The presumption of innocence and a robust adversarial process are essential features of English legal tradition and of the defendants
right to a fair trial.113 Yet a redistribution of power within the process might indicate
a significant move either towards a truth-seeking inquisitorial model or to a managerial one in which the court intervenes actively to promote efficiency but is not
responsible for searching out the truth. In the managerial model, expedition becomes
a particularly important goal; power shifts from the parties to the judges, who may
compel collaboration in order that cases can be processed as quickly as possible.114
According to Langer, it is less problematic (although not entirely unproblematic) to
switch from adversarial to managerial procedures than it is to introduce inquisitorial
arrangements from an adversarial base. That would require deep changes to institutional structures as well as to culture, since inquisitorial systems require review of the
activities of all state representatives as the case progresses through the hierarchy.115
Such processes have not been introduced in England and Wales.
The transfer of power to the court represented by a move to a case management
model preserves due process only for as long as judges remain informed and objective.
While it is nowhere suggested that judges in this country are anything else, it is the
prospect of fairness being entirely dependent on judicial skill, resources and integrity
that alarms some defence advocates as they contemplate the decline of their ability to
run their case in their own way.116
REBALANCING THE CRIMINAL JUSTICE SYSTEM

Although, in documents couched in heavily managerialist language, the political view
has been expressed that the criminal process is in need of re-balancing in favour of
110. General Council of the Bar/Criminal Bar Association, Consultation Paper Response:
Notification of Defence Witness Provisions 2010: Lord Thomas of Gresford, Official Report,
16/6/2003; cols 570571.
111. Lord Thomas of Gresford predicted referrals to European Court of Human Rights, House
of Lords Grand Committee, 18 March 2010. Fear of facts laid before counsel being disclosed
to clients detriment undermines the right to legal advice: R (on the application of Morgan
Grenfell & Co Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563, per Lord
Hoffmann [7]. See also R v McE [2009] UKHL 15; Pattenden and Skinns, above n 103.
112. Lanz v Austria App No 24430/94 ECtHR Judgment 31 January 2002.
113. Lord Phillips, above n 89.
114. Langer, above n 74. The phrase managerial judge first coined in J Resnik, Managerial
judges (1982) L Rev 374.
115. Langer, ibid.
116. Eg Hall, above n 65.
2011 The Author
535
victims and witnesses,117 some of the pressure to protect them is firmly rights-based.118
EU legislation requires a Member State to take measures to minimise the effect of any
communication difficulties that might impact upon victims ability to participate in
criminal trials.119 Few would argue against measures designed to facilitate the participation of victims as witnesses in an adversarial trial, assuming no diminution of
defendant rights. Thus concerns that child defendants could be at a disadvantage when
juvenile witnesses availed themselves of special measures in order to testify against
them120 have been addressed.121 Nevertheless, the efforts made to facilitate victim
participation in criminal procedures do not make the victim a party in the case in the
style of continental systems.
One way to protect non-party participants, whether victims or other witnesses,
from the rigours of the adversarial trial is to challenge the oral tradition represented
by the rule against hearsay. The relaxation of the exclusionary rule represented by
the wide range of exceptions provided by the Criminal Justice Act 2003122 could be
argued to be equally as consistent with a move to a managerial model as it is
suggestive of an adoption of European modes of proof. It is much quicker to read
testimony than to listen to it, and much easier to schedule trials if it is not essential
that witnesses are available. And it is certainly striking that it is European judges,123
so reliant themselves on the dossier, who are most alarmed by the diminishing
reliance on oral evidence in criminal trials in this country, taking the view that the
defence right to challenge is undermined where the prosecution rely on a written
witness statement that is decisive to the verdict and was made in circumstances
where the defence were not represented. The statutory hearsay exceptions depend
on the unavailability of the witness rather than the reliability of the evidence in the
particular case. In inquisitorial jurisdictions, the defence have the opportunity to
question witnesses at the instruction stage.124 It was the absence of such an opportunity that troubled the ECtHR. In Horncastle both the Court of Appeal125 and the
Supreme Court126 seemed untroubled by the ECtHRs misgivings, employing arguments that to some degree mirrored the Crime Control justifications offered by
legislators during Parliamentary debates.127 Although it is the case that hearsay
117. Eg Home Office, above n 55; Lord Chancellor and Attorney-General Secretary of State for
Home Department, above n 48.
118. The ECtHR emphasises their rights to liberty and to security, and to privacy, Arts 5 and 8
respectively: Doorson v Netherlands (1996) 22 EHRR 330.
119. To an extent comparable with the measures of this type which it takes in respect of the
defendant: European Framework Decision on the Standing of Victims in Criminal Proceedings
2001, 2001/220/JHA Art 5.
120. R (on the application of D) v Camberwell Green Youth Court [2005] 1 All ER 999.
121. Police and Criminal Justice Act 2006, s 47; Coroners and Criminal Justice Act 2009,
s 104.
122. ss 114118.
123. Al-Khawaja and Tahery v UK [2009] ECHR 26766/05 in the European Court of Human
Rights.
124. Hodgson, above n 1.
125. Horncastle et al [2009] EWCA Crim 964; [2009] All ER 183.
126. [2009] UKSC 14; [2010] 2 WLR 47. The case was heard in July 2009 by the House of
Lords. See M Requa (2010) 14 E & P 208.
127. I Jones A political judgment? Reconciling hearsay and the right to challenge (2010) 14
E & P 232.
2011 The Author
536
exceptions are available to the defence as well as the prosecution, witnesses

unavailable through fear (the most widely-used hearsay exception)128 are more
likely to testify for the prosecution. Also, the wider admissibility of evidence
of the defendants bad character is almost entirely for the advantage of the
prosecution.129
A further development in the attempt to protect witnesses is the jury-less trial. In
relation to complex fraud trials, it has been successfully resisted,130 but a provision
relating to interference with jurors131 is in force. The Court of Appeal upheld a
decision to proceed without a jury in a notorious robbery trial where there was a
significant danger of jury tampering, but it was noted with alarm by some defence
lawyers that the subsequent trial conducted by Treacy J took considerably less time
than had the earlier, failed, trials before various juries.132 This precipitated concern
that such trials will become increasingly common.133 However, the Court of Appeal
has stressed more recently that judge-only trials are a last resort, noting that jury
protection over the duration of shorter trials may be more manageable.134
Although not an essential characteristic of adversarialism, the jury trial is the natural
corollary of the distrust of officialdom that inspires it.135 In the USA the idea that
jurors follow their consciences reflects the view of seventeenth century egalitarians
who emigrated there that the trial was as much an assessment of just deserts as it
was a search for the truth in the case in hand.136 Both jury trial and party autonomy
are manifestations of the same principle, namely that the individual defendant must
be protected against the power of a prosecuting state. In the Diplock judge-only
trials in Northern Ireland and jury-less Special Criminal Court of Southern Ireland,
adversarial character is diluted somewhat but party control has remained.137
128. I Dennis The Law of Evidence (London: Sweet and Maxwell, 4th edn, 2010) ch 17.13.
129. Criminal Justice Act 2003, s 101; the competing rights of co-defendants are dealt with in
s 101(1)(e).
130. Criminal Justice Act 2003, ss 4350. Separate legislation was required to bring these
provisions into force. In order to secure House of Lords agreement, the government undertook
that it would not be implemented without further consultation. The House of Lords blocked the
Fraud Trials (Without a Jury) Bill 2006.
131. Criminal Justice Act 2003, s 44.
132. Twomey, Blake, Cameron and Hibberd [2009] EWCA Crim 1035; [2010] Crim LR 82,
overruling Calvert-Smith J, who had thought a moderately-priced package of protective measures would neutralise the risk to the jury.
133. A Fresco and F Gibb Lawyers fear more trials without jury after guilty verdict in robbery
The Times 1 April 2010. Although the Lord Chief Justice declared that the prosecution must
prove the need to protect the jury, here the prosecution burden appeared to be satisfied simply
by a claim that protection would be very expensive: Twomey, Blake, Cameron and Hibberd,
above n 132.
134. J, S and M [2010] EWCA 1755.
135. MR Damaska Evidentiary barriers to conviction and two models of criminal procedure:
a comparative study (1973) 121 U Penn LR 506 at 564; As has been pointed out, the link often
leads to a circular argument: P Roberts, above n 20, although see Langer, above n 74.
136. T Green Verdict According to Conscience (Chicago IL: Chicago University Press, 1988)
p 149.
137. J Jackson and S Doran Judge Without Jury: Diplock Trials in the Adversary System
(Oxford: Oxford University Press, 1995); F Davis The History and Development of the Special
Criminal Court 19222005 (Dublin: Four Courts Press, 2007).
2011 The Author
537
THE DIMINISHING IMPORTANCE OF THE TRIAL

Transferring some aspects of control over the conduct of criminal cases from the
parties to the courts is only one of a number of responses being used to reduce the
pressure on resources. Recent initiatives that aim to divert suspects from formal
criminal justice procedures have led to the fear that trials are being sidelined to the
detriment of suspected criminals. In the USA such developments have led to a
burgeoning academic literature in which trials are described as dead, disappearing
or vanishing.138 In this country, to the alarm of the Magistrates Association, magistrates courts, silent and empty for lack of business,139 find themselves facing new
rounds of closures.140 The criminal trial has not disappeared altogether, however. The
Crown Court caseload, far from decreasing, has significantly increased,141 but that
tendency might have been more acute had it not been for the range of measures
employed to divert defendants from a fought contest. Indeed, Kritzer observes that the
number of guilty pleas considered for sentencing in the Crown Court rose sharply
between 1974 and 2002, but then fell back.142 He offers no explanation of the recent
reduction, but a combination of diversionary measures and discontinuances might
hold the key.
More alleged criminals are dealt with out of court than in it.143 Half of all cases
brought to justice, including up to 40,000 cases of assault, are dealt with by
cautions144 or out of court penalties.145 Public alarm, at least as far as expressed
138. MS Galanter The vanishing trial: an examination of trials and related matters in federal
and state courts (2004) 1 Journal of Empirical Legal Studies 459; R Burns The Death of the
American Trial (Chicago: University of Chicago Press, 2009); Hon PE Higginbotham The
Disappearing Trial and Why We Should Care (Santa Monica CA: Rand Corporation, 2004),
available at http://www.rand.org/publications/randreview/issues/summer2004/28.html.
139. Ministry of Justice Judicial and Court Statistics 2007 (London: Ministry of Justice, 2008);
R Morgan Summary Justice: Fast but Fair? (London: Centre for Crime and Justice Studies,
2008). Some of their caseload may simply have been transferred to the District Judge, seen as
quicker and more efficient; J Hoskins What is happening to our magistrates? we must sound the
alarm The Times 8 April 2010.
140. F Gibb Will Clarkes cuts threaten the way local justice works? The Times 1 July 2010;
T Whitehead Senior judge warns dozens of courts should not be closed Daily Telegraph 21
October 2010.
141. 10% in 2009: Lord Judge CJ, above n 11. Workload predicted to rise until 2011: National
Audit Office Administration of the Crown Court (London: TSO, 2009).
142. HM Kritzer Disappearing trials? A comparative perspective (2004) 1 Journal of Empirical Legal Studies 735.
143. L Bridges, above n 14.
144. Conditional cautions for adults under Criminal Justice Act 2003, ss 2227 were extended
to young offenders by Criminal Justice and Immigration Act 2008, s 48. The variety of
conditions was extended by the Criminal Justice Act 2003 (Conditional Cautions: Financial
Penalties) Order 2009, SI 2009/2773. An offender may now be fined and cautioned simultaneously. The use of cautions for standard list offences for young males increased from 6% in
1971 to 20% in 2006: Statistics Division, Ministry of Justice Conviction Histories of Offenders
Between the Ages of 10 and 52, England and Wales (London: Ministry of Justice, 2010)
available at http://www.justice.gov.uk/criminal-histories-bulletin.pdf pp 4 and 5.
145. Penalty Notices for Disorder (FPNs) introduced for traffic offences from 1988 then for
antisocial behaviour, Criminal Justice and Police Act 2001, s 1. Theft and criminal damage were
added to the list: Criminal Justice and Police Act 2001 (Amendment) and Police Reform Act
2002 (Modification) Order 2004, SI 2004/2540.
2011 The Author
538
by politicians and press, was focused rather on the number of serious offences,
particularly assaults with a weapon, being dealt with in a manner perceived as
over-lenient.146 Diversion on this scale and of such serious offences was not foreseen;
although the legislation went through conventional processes, it is unlikely that
Parliamentarians anticipated the zeal and enthusiasm with which the new measures
have been employed by prosecutors and police. Fixed penalty notices (FPNs) were
introduced in statutes that concerned offences against public order, but theft and
criminal damage were added to the list by secondary legislation, apparently with no
point of ultra vires being raised.147 Thousands have subsequently been issued in
relation to shoplifting.148 Should a suspect refuse to accept a caution or challenge the
issue of an FPN, a conventional prosecution is likely to follow where it seems that the
evidence is strong enough and the elements of the crime are present. However, there
may well be cases where no challenge is made, but both police officer and suspect
have wrongly assumed that the elements of the charge were made out. It will be a rare
suspect, given that the FPN does not constitute a conviction for criminal record
purposes, that will have the time, resources, determination and information to seek
advice and consequently refuse to pay and demand a trial. Thus, both the guiltdetermining function of the court and the decision on appropriate punishment are in
these not-so-minor cases effectively transferred to the executive. The lack of accountability poses a threat to due process.149
Unlike fines consequent on conviction, fixed penalties are not linked to the ability
to pay. Where they are not paid, magistrates are fixed with the task of collection,
frequently being puzzled as to how to dispose of the case where the offender patently
lacks the means to pay the penalties (frequently numerous) collected, and aware that
there was no finding or admission of guilt preceding the issuing of the notice.150 And,
although the House of Lords has held that a private prosecution could not be brought
for an offence for which a caution still existed,151 it appears that the Crown may
prosecute for the same event someone who has already paid their fine or complied
with the terms of their caution, as long as the prosecution is for an offence of a
separate legal definition. Allegations that such a decision constituted abuse of process
146. F Gibb Caution for assault will one day be followed by murder The Times 9 November 2009; A Travis Jack Straw orders review of police cautions for violent offences The
Guardian 9 November 2009.
147. Criminal Justice and Police Act 2001 (Amendment) and Police Reform Act 2002 (Modification) Order 2004, SI 2004 no 2540. See A Edwards Do the defence matter? (2010) 14 E &
P 119.
148. Edwards, ibid.
149. Cindy Barnet, Chairman Magistrates Association, Letter, The Times 8 November 2005; F
Gibb Do not widen out-of-court penalties, magistrates tell Jack Straw The Times 5 May 2005;
Home Office Penalty Notices for Disorder Statistics 2004 RDS Findings no 257 (London:
Home Office, 2004); A Ashworth and L Zedner Defending the criminal law: reflections on the
changing character of crime, procedure and sanctions (2008) Crim Law and Philos 21;
Edwards, above n 147; Magistrates Association Evidence to the House of Commons Justice
Committee Ninth Report: The Crown Prosecution Sevice Gatekeeper of the Criminal Justice
System (London: House of Commons, 2009) at [50]; H Siddique Magistrates warn police could
misuse new driving fines The Guardian 18 August 2009; Morgan, above n 139.
150. Edwards, above n 147; G Halligan-Davies and K Spicer Piloting On the Spot Penalties
for Disorder: Final Results from a One Year Pilot Home Office Findings no 257 (London:
Home Office, 2004).
151. Jones v Whalley [2007] 1 AC 63.
2011 The Author
539
have been rejected.152 The prospect of someone being punished twice for the same
behaviour raises the question of whether suspects in fact have a right to a trial to
prevent that from happening; the principle of double jeopardy applies to full trials. It
seems beyond argument that individuals are entitled to an opportunity to offer an
account of themselves before punishment is meted out. Although these suspects are
entitled to demand a trial rather than accept the penalty, it is unlikely they will have
much opportunity to make an informed assessment of whether that would be in their
interests. At the very least, and despite the fact that no conviction ensues where the
penalty is accepted, the opportunity to access legal advice should be provided before
any fine is imposed.
Clearly there are offenders for whom cautions or fixed penalties serve a useful
function in giving them the opportunity to reform, a project that may be more
successful if they are kept out of the penal system. But the importance of formal
structures within the criminal justice system cannot be underestimated. For example,
the new power to attach relatively restrictive conditions, such as curfew, to police bail
and street bail153 pre-charge154 is no incentive to police officers to complete their
inquiries quickly. Yet the procedures to be followed on arrest, review of detention,
charge and court appearance mean that those who find themselves accused of crimes
and thus suddenly at the mercy of a massive state apparatus must at least be presented
for inspection at specified intervals. These contact points are essential to ensure that
suspects are treated humanely, and are aware of the case against them and of the
consequences of any decisions they make. They keep the system fair and reassure the
public that it is fair. There is little respect for the dignity of the individual in a system
that buries its suspected criminals in bureaucratic processes which are not redeemed
to any extent by the kind of hierarchical inspection Damaka observed in the systems
of continental Europe, nor the opportunity to present ones case as required by Art 6.
Another illustration of the modern paradox whereby proliferation of law is accompanied by attempts to reduce levels of adjudication155 is far from oppressive of the
suspect, but suggests that managerial approaches may undermine the purposes of the
system insofar as they could prevent the guilty from receiving their deserts. For
example, the police and Criminal Bar Association have expressed suspicion of undercharging by the CPS in order to meet targets.156 Also, it seems that in some contexts
the gathering of evidence is redefined as bureaucracy; there has been a succession
of initiatives to reduce police administrative loads by reducing the amount of paperwork associated with the prosecution file (or eradicating file overbuild).157 These
have culminated in the Streamlined Guidance issued in relation to summary trials by
the Director of Public Prosecutions.158 In those cases where they believe an arrested
152. Gore and Maher [2009] EWCA Crim 1424; R (on the application of Guest) v DPP [2009]
Crim LR 730. The reasoning was that the prosecutions were not for the identical offence,
although for the same event, for which the fines or cautions had been administered.
153. Police and Criminal Evidence Act 1984, s 30A.
154. Police and Justice Act 2006 s 10, Sch 6.
155. Noted in the civil sphere by Genn, above n 49.
156. House of Commons Committee of Public Accounts Crown Prosecution Service: Effective
Use of Magistrates Courts Hearings HC 982 (London: TSO, 2006) p 12.
157. Surrey Criminal Justice Board Current Initiatives, available at http://lcjb.cjsonline.gov.uk/
Surrey/641.html. See A Mackie, J Burrows and R Tarling Preparing the prosecution case
[1999] Crim LR 460469.
158. First issued in 2007, available at http://www.cps.gov.uk/publications/directors_guidance/
streamlined_process.html.
2011 The Author
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person is likely to plead guilty, the police are required to supply to the CPS a highly
truncated case summary rather than the usual collection of witness statements.
However, there are numerous cases where the admission has been over-optimistically
anticipated and is not in fact forthcoming.159 There, prosecutors find themselves with
insufficient information in the documentation to allow them to conduct the prosecution. The choice is then either to ask the police to do further work on the case, or, less
problematically, to drop it.160 It is inimical to either an adversarial or an inquisitorial
system to regard the gathering of evidence and the taking of statements as unnecessary
distractions, as appears to be the case to some agents of the criminal justice system,161
but may be an indicator of a system that subordinates both due process rights and just
deserts to measures of throughput.162
ENCOURAGING ADMISSIONS OF GUILT
The early admission of guilt or plea of guilty is widely seen as the salvation of a
system under pressure. It is becoming clear that the earlier pleas are entered, the more
courts will reward defendants. The criminal justice system must do all it can to
encourage those who are guilty to plead at the earliest opportunity.163 The Plea and
Case Management Hearing Advocates Questionnaire164 requires counsel to stipulate
whether the defendant has been advised of the sentencing discount for guilty pleas.165
The court will expect this to have been done; some judges express themselves in
robust terms if a defendant has not pleaded in a case they consider hopeless.166 Going
further, the Chair of the Sentencing Council has recently suggested that greater
discount should be given where admissions are made during police interview,167 a
suggestion which may well be implemented despite the concern in some quarters that
it would lead to false confessions.168
Dispute resolution is indeed a feature of adversarialism, as is equality of arms.
The plea bargain is an expression, not of the defendants fair trial right to autonomy,
159. HMCPSI Review of the Performance of CPS London 200910: Pub no CP001.971
(London: HMCPSI, 2010) at 6.61.
160. Ibid, 2.14.
161. Ibid, 3.26.
162. A Freibert Managerialism in Australian criminal justice: RIP for KPIs? (2005) 31
Monash L Rev 12 at 18.
163. The criminal justice system must do all it can to encourage those who are guilty to plead
at the earliest opportunity: Lord Judge CJ, above n 11, at [2.8]; Sir Robin Auld favoured judges
being able to give an advance indication of sentence should the defendant change his plea, Auld,
above n. 46, at 442; Now allowed, in Goodyear [2005] EWCA Crim 888; but only if the defence
asks for such an indication, The court retains an unfettered discretion to refuse to give it or to
postpone giving it; but once given, it is binding on any judge who tries the case.
164. Available
at
http://www.justice.gov.uk/criminal/procrules_fin/contents/practice_
direction/forms_anx_e%20pdf/annex-e-pcmh-april-2010.pdf.
165. Criminal Justice Act 2003, s144 states that in determining sentence a court shall take
account of at what stage of the proceedings the defendant indicated his intention to plead guilty,
and the circumstances in which this indication was given.
166. C Corre The Administration of Justice (University of Sheffield: Unpublished PhD thesis,
2002) describing old-style Plea and Directions Hearings.
167. F Gibb Pleading guilty to the police should be rewarded with a lighter sentence The
Times 3 June 2010, quoting Leveson LJ.
168. S Coates and R Ford Time off for early guilty pleas The Times 24 April 2010.
2011 The Author
541
but of party control of procedure. Nevertheless, since the defendants decision may
have crucial effect on the outcome of the criminal proceedings, negotiations must
accord with fair trial principles. Currently, procedures on arrest are such that they
cannot. The police have no obligation to disclose all the facts in their possession to
arrested suspects or their legal advisors; consequently some suspects inevitably
adopt a policy of reserving their position until they know what the case against them
is. Under the EC, equality of arms is also a fair trial right and means in this context
not equality of resource but that accused persons must have weapons of defence
proportionate to the coercive nature of the process, and thus a reasonable opportunity to present their case in conditions that do not place them at a substantial disadvantage vis--vis the opponent.169 The Conventions fair trial provisions apply to
pre-trial processes including police investigations.170 A system that adopts a policy
of allowing greater sentencing leniency the earlier a plea is entered is therefore at
risk of compromising due process unless full and accurate disclosure is made;
defendants must have at their disposal all relevant information in the hands of the
police,171 and so the problem of non-disclosure on arrest would have to be addressed
before a scheme effectively penalising wait and see suspects could legitimately be
implemented.
Yet, just as the police interview stage of the investigation increases in significance
and formality,172 legal advice on both sides may be flawed or absent. Where an accused
has insufficient information or expertise to make a wise decision, his or her participation in their own defence is a cruel illusion. Rash admissions later withdrawn by a
defendant who elects for trial can be used to discredit them by means of crossexamination on inconsistencies. There will be cases where neither police officers nor
their suspect know the definitions of the offences in question, and the closer relationships between police and prosecutors, following the Glidewell recommendations,173
may be about to be reversed.174 Also, it seems that suspects at police stations are less
able than before to access legal advice; even the privately funded must now first
contact the Duty Solicitor Call Centre. On request a named solicitor will be contacted
on the suspects behalf, but their lawyer then has to call back the police station custody
suite and hope that someone answers the telephone before the client gives up and
embarks on the interview without seeing them.175 In the case of those requiring free
legal advice, the Call Centre will decide whether it is a case for which advice over the
169. Jrg, Field and Brants, above n 28, Kaufman v Belgium (1986) 50 DR 98 at 115; Foucher
v France (1998) 25 EHRR 234 at [34].
170. Teixeira de Castro v Portugal (1998) 28 EHHR 101.
171. Jespers v Belgium (1981) 27 DR 61; Salduz v Turkey [2008] ECHR 1542, endorsed by
Supreme Court in Cadder v HMA [2010] UKSC 43.
172. Edwards, above n 147; J Jackson Silence and proof: extending the boundaries of criminal
proceedings in the United Kingdom (2001) 5 E & P 145.
173. Rt Hon Sir Ian Glidewell Review of the Crown Prosecution Service Cm 3972, 1998 at
9.34.
174. ONeill above n 18.
175. Change effected by the Legal Services Commission Defence Solicitors Call Centre:
Questions and Answers LSC, January 2008, in order to, inter alia, give us better information
about police station work available at http://www.legalservices.gov.uk/criminal/
defence_solicitor_call_centre.asp#changes. See L Bridges and E Cape CDS Direct: Flying
in the Face of the Evidence (London: Centre for Crime and Criminal Justice Studies,
2008).
2011 The Author
542
telephone is deemed sufficient176 and arrange for that, or, otherwise, instruct a duty
solicitor. Problems with such calls being overheard suggest breaches of the ECHR,177
but under current budget constraints it is highly conceivable that the telephone adviceonly category of case will be extended. Yet it is far from clear that cuts to legal aid save
money. It has been argued that absent an independent advisor to point out the strength
of the police case, some suspects maintain denial or silence until they acquire representation and their predicament is explained to them; this may mean a late change of
plea, involving considerable cost and inconvenience to the system.178 Early legal
advice will in clear cases lead to a guilty plea,179 making the non-funding of defence
lawyers at the investigatory stage a false economy. Trials involving defendants in
person generally take longer,180 as even the Ministry of Justice recognises.181 Hence
legal aid provision serves the interests of efficiency and due process simultaneously.
The same rights to full disclosure and legal advice apply to negotiations with the
CPS later on in the investigation process. The US Supreme Court considers that
essential due process safeguards, such as prosecution disclosure, including of exculpatory material, apply to plea bargains as they do to cases that proceed to full trial.182
Should there be pressure to introduce more widespread and formalised pleabargaining in this country, it should be borne in mind that, although there has been
some improvement in the past ten years, the CPS and police are still struggling to
comply in good time with disclosure requirements even by the time of the PCMH. Yet
Government enthusiasm for bargains has prompted the Attorney-General to issue
guidelines for formalised plea discussions in fraud cases; it is not essential that the
defendant be legally represented.183 Yet it would compromise the principle of neutrality were judges perceived as in any way involved with plea bargains,184 and maintaining a distance is easier where the defendant has counsel to advise on the implications
of a guilty plea. The introduction of the means test into Crown Court legal aid
provision185 will inevitably lead to fewer defendants being represented at that level.
With or without a lawyer, the defence may not always be supplied with a full and
accurate account of the information in the hands of the prosecution. Despite the
176. Non-imprisonable and drink/driving offences, unless the police carry out an interview or
identification parade: Unified Contract (Crime), replacing the revised General Criminal Contract. See Bridges and Cape, above n 175. Telephone advice found to be of limited value: A
Sanders et al 24 Hour Duty Solicitors Scheme (London: Lord Chancellors Department, 1989).
177. Pattenden and Skinns, above n 103.
178. Edwards, above n 147.
179. Judge LJ Evidence to the Select Committee on Constitutional Affairs 22 June 2004.
180. Richards J Evidence to the Select Committee on Constitutional Affairs 22 June 2004.
181. Ministry of Justice, Legal Services Commission Crown Court Means Testing CP 27/08
(London: Ministry of Justice, 2008) at [34][35].
182. United States v Ruiz (2002) 536 US 622 although evidence concerning informants was
treated differently.
183. Attorney-Generals Guidelines on Plea Discussion in Cases of Serious or Complex Fraud
(2009) available at http://www.attorneygeneral.gov.uk/Publications/Documents/AG%27s%
20Guidelines%20on%20Plea%20Discussions%20in%20Cases%20of%20Serious%20or%20
Complex%20Fraud.pdf [B.4]; [C.1] Any bargain comprising an agreed sentence is contrary to
principle: R v Dougall 1 June 2010, The Times.
184. Searle et al, above n 97, at [256].
185. Means testing was reintroduced for magistrates courts in 2006 by the Criminal Defence
Service Act 2006 which also enabled means testing for defendants in Crown Courts. The scheme
for trials on indictment was piloted and then implemented nationally during 2010, https://
survey.legalservices.gov.uk/consult.ti/CrownCourtMeansTestingSurvey/consultationHome.
2011 The Author
543
pressure on its Crown Prosecutors, the CPS is reducing the number of lawyers it
employs.186 File review has more and more become the province of paralegals and
caseworkers187 particularly because to date more Crown Prosecutors are involved at
the police station188 or in court as Crown Advocates.189 Problems with late or incomplete prosecution disclosure bedevil cases at all levels;190 the House of Commons
Justice Committee has warned that the expansion of plea bargaining could have
significant consequences and that issues such as what safeguards need to be in place
for defendant, victim and the public need careful consideration.191
CONCLUSION
Adversarial systems are not well designed to take into account the interests of nonparties such as victims and potential future victims, nor of the taxpayer who pays for
the criminal process. Many other countries are therefore considering the wisdom of
retaining all the features of their adversarial inheritance; reforms in the pursuit not
only of the admission of reliable and relevant evidence and the humane treatment of
witnesses, but more recently also of efficiency and reduced cost, are being considered
and implemented all over the world.192 Convergence theory interprets this as
movement towards civilian-style proceedings. Were this to coincide with increased
However, regulations restricting an acquitted defendant?s recoverable costs to legal aid paymentrates were held to be ultra vires the enabling statute: Queen on application on behalf of Law
Society of England and Wales v Lord Chancellor [2010] EWHC 1406.
186. In 2006, about 2800 lawyers: Evidence of Richard Foster, Chief Executive CPS, to House
of Commons Committee of Public Accounts; Crown Prosecution Service: Effective Use of
Magistrates Courts Hearings HC 982 Q 21 (London: TSO, 2006). By 2010 numbers dropped
to around 24,340, Crown Prosecution Service website www.cps.gov.uk/about.facts.html.
187. HMCPSI, above n 159.
188. Director of Public Prosecutors Guidance to Police Officers and Crown Prosecutors
(London: Crown Prosecution Service, 2007): in accordance with the Glidewell Report recommendations, above n 175. Now see ONeill, above n 18.
189. HMCPSI, above n 159, at 12.3; As at September 2008 the 977.6 (FTE) CPS Higher Court
Advocates had presented just under 80,000 Crown Court hearings: House of Commons Justice
Committee, Ninth Report: The Crown Prosecution Sevice Gatekeeper of the Criminal Justice
System (London: House of Commons, 2009) at [71].
190. P Plowden Case management and the criminal procedure rules [2005] NLJ 416; R Ede
and E Shepherd Active Defence (London: Law Society, 2nd edn, 2000); HMCPSI, Thematic
Review of the Duties of Disclosure of Unused Material Undertaken by the CPS 2008; HMPSI
Disclosure: Report of the Follow-Up Review of the Duties of Disclosure of Unused Material
Undertaken by the Crown Prosecution Service 2009; HMCPSI Abandoned Prosecutions: an
Audit of CPS Performance Relating to the Handling of Discharged Committals (London:
HMCPSI, 2010).
191. House of Commons Justice Committee, above n 189, at [45].
192. Case management is being introduced in various common law jurisditions, eg Australian
Government, Australian Institute of Criminology, Criminal Trial Delays in Australia: Trial
Listing Outcomes Research and Public Policy Series no 74 (Canberra: Australian Institute of
Criminology, 2007); W Soden Perspectives on the changing role of the judiciary in coordinating criminal justice in D Biles and S McKillop (eds) Co-Ordination: Proceedings of a
Conference held 1921 April 1993, Conference Proceedings no 24 (Canberra: Australian
Institute of Criminology, 1994); Y Danandurand Addressing Inefficiencie in the Criminal
2011 The Author
544
state activism, it would appear to support Damakas dual model theory. Apparently
supporting his thesis, the decline of adversarialism in Britain coincided with considerable expansion of the reach of government activity under Labour, but this increase
in centralisation is apparently about to be reversed.193 Thus, if any decrease in adversarialism in criminal processes were attributable to the development of Big Government under New Labour, we might expect, on the basis of the Damaka thesis, that the
pendulum would now swing back towards the adversarial paradigm. What seems more
likely, however, is that the managerialist persuasion of criminal processes in this
county will continue, and possibly strengthen, because of the drain on resources that
party autonomy entails. The coalition government is currently investigating the possibility of closing many more courts, as well as possible avenues for reducing legal aid
provision.194
Managerialism differs from adversarialism in that it dislikes party control over the
criminal process. Hence at the trial, as Langer observes, power is accordingly transferred to the court. The result is inconsistent with a civilian model in that there is still
a contest between two competing parties.195 Much remains missing from the picture he
provides; new rules and practices within pre-trial processes may far more significantly
drive a move to managerialism than can reform of trial procedures. Taking an overview of the diverse reforms in England and Wales, including the transfer of power
from parties to the court effected by the CrimPR, the impression created is of
considerable power loss, as far as the parties are concerned, but a distinct lack of
clarity as to where it now lies. The essential structure remains coordinate rather than
hierarchical. Indeed, there are signs that some criminal justice agencies have themselves lost a measure of control over the disposition of cases, as they pursue goals and
targets set by the executive196 which may have little to do with protection of the public
through control of crime. In this system, monitoring is done not by more senior
criminal justice professionals, but by managers. The police and CPS publish business
plans and are subject to performance targets,197 adhering to a stream of Public Service
Agreements, and Home Office policy documents. In consequence, the hard-pressed
CPS is acknowledged to be reeling under the number of initiatives.198 Judges also are
being assessed in terms of case completion rates and adjournment rates.199 The
primary objective of supervision, then, is to promote efficiency, not to protect the
rights of suspects. Where safeguards have been designed around an adversarial trial
contest and structural pressures are still largely adversarial, [the proposed reforms]
Justice Process International Centre for Criminal Law Reform and Criminal Justice Policy,
(British Columbia Justice Efficiencies Project, 2009); Searle et al, above n 97.
193. F Elliott Its your country, well put you in charge of your own destiny, Cameron
declares The Times 14 April 2010; see J Kirby The Reality Gap: an Analysis of the Failure of
Big Government (London: Centre for Policy Studies, 2009).
194. Clarke, above n 13.
195. Langer, above n 74.
196. Brownlee, above n 14.
197. McLaughlin and Muncie, above n 18; Cape, above n 18; Home Office Departmental
Report 2008 CCM 7396, 2008. The new Home Secretary has promised to scrap police targets,
ONeill, above n 188.
198. HMCPSI, above n 159, at 3.22.
199. National Audit Office, above n 141; and across the common law world: B Mahoney
Changing Times in Trial Courts (Williamsburg VA: National Centre for State Courts, 1988); R
Sackville From access to justice to managing justice: the transformation of the judicial role
(2002) 12 Journal of Judicial Administration 524.
2011 The Author
545
marginalize traditional safeguarding procedures without putting anything in their

place.200 Accountability lies only indirectly to Parliament through the scrutiny of
inspectors reports; these deal with generalities and practices, not individual cases.
Control, therefore, seems not to be lodged with the court except insofar as it deals with
the cases not sifted out at an earlier stage, and seeks to enforce its own objectives.
These include protection of truth and fairness, but also incorporate efficiency into
justice. It appears that the emerging new power is essentially bureaucratic, or, in the
words of H Arendt, rule by nobody.201
Just as some inquisitorial jurisdictions are embracing expedition at the expense of
some of their traditional characteristics, in this country control through management
is a response primarily to economic factors rather than to the ideology that drives an
activist state. The result may be similar, in that hostility to party control is inevitable.
And the defenders of adversarialism are politically weak. Langbein links the ascendancy of adversarialism in criminal proceedings in England and Wales202 to the
emergence of a strong defence Bar, but the independent criminal Bar is now in
competition with Solicitor Advocates,203 who may be instructed in-house, and Crown
Advocates, employed by the Crown Prosecution Service.204 Some predict further
undermining of the independence of the Bar, should the proposed Big Bang in legal
services205 materialise; this is in some doubt following the change of government.206 In
the absence of a vigorous defence, a suspect relies heavily on both the objectivity and
the efficiency of state agencies. Managerialist and bureaucratic models, like inquisitorial proceedings, depend heavily on these agents keeping accurate records, a goal yet
to be achieved. Efficient electronic case management systems are planned, but it
seems that paperwork is still in disarray in some areas207 and prosecution files may still
be getting lost, particularly if cases move at short notice between courts.208 An
inefficient administration cannot command the support of those caught up in it if they
are given insufficient opportunity to correct errors. Inadequate funding of the criminal
justice bureaucracies contributes to inaccuracy and increases costs. If a lack of
accountability is accompanied by a reduction in the power directly to challenge, as the
defendant loses opportunities for informed involvement, the system becomes, rather
than rebalanced, massively imbalanced in favour of the State.
If accused persons are no longer to have the ability to exercise effective control
over their own case, that form of protection against the most awesome display of state
power vis--vis the individual209 must be replaced by another. The general public are
unlikely to pay much heed to a criminal justice system where they doubt its fairness.
200. Field and Thomas, above n 26, at 14.
201. H Arendt On Violence (New York: Harcourt, Brace and World, 1970) p 81.
202. JL Langbein The Origins of Adversary Criminal Trial (Oxford: Oxford University Press,
2003); but see review by D Dwyer (2003) 66 MLR 940.
203. Courts and Legal Services Act 1990, s 27; rights of audience if qualify as Solicitor
Advocate.
204. House of Commons Justice Committee, above n 189, at [61].
205. Under Legal Services Act 2007.
206. J Ames Is Tesco law heading for the long grass? The Times 3 June 2010.
207. Mainly a consequence of the number of initiatives. HMCPSI, above n 159.
208. House of Commons Committee of Public Accounts; Crown Prosecution Service: Effective
Use of Magistrates Courts Hearings HC 982 Q 21 (London: TSO, 2006) Evidence of Richard
Foster, Chief Executive CPS, Q14.
209. T Weigend Why have a trial when you can have a bargain? in A Duff et al Trial on Trial
vol 2 (Hart Publishing, 2006) pp 207 and 219.
2011 The Author
546
More fundamentally, no society may allow due process rights to be diminished or lost;
fair trial rights must be respected whether or not we depart from our adversarial
tradition. It cannot be denied that adherence to due process values is expensive and
slows the system down. However, criminal justice in every aspect is often used as a
broad index of how civilized or progressive or indeed truly democratic a country
is.210 Democracy itself springs from a perception of the citizen as an autonomous
being entitled to a voice within the political apparatus of the state. It follows that
citizens must be heard within any procedural criminal apparatus that seeks to impose
sanctions upon them. Respect for the right to participate demands that our criminal
justice system recognise how difficult it is to hear one individual voice where the state
can speak so loud.
210. Lacey, above n 3, quoting Winston Churchill HC 25 July 1920: The mood and temper of
the public in regard to the treatment of crime and criminals is one of the most unfailing tests of
the civilisation of any country.
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Adversarialism Article

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Legal Studies, Vol. 31 No. 4, December 2011, pp.

From adversarialism to managerialism:

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

century in England as the best way of protecting defendants from ill-informed

From adversarialism to managerialism: criminal justice in transition

ADVERSARIALISM IN AN AGE OF DIMINISHING RESOURCE

Legal Studies, Vol. 31 No. 4

JUDICIAL CASE MANAGEMENT: THE SEA CHANGE58

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

statutory provisions. Indeed, only Parliament may legislate in derogation of legal

Legal Studies, Vol. 31 No. 4

REBALANCING THE CRIMINAL JUSTICE SYSTEM

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

exceptions are available to the defence as well as the prosecution, witnesses

From adversarialism to managerialism: criminal justice in transition

THE DIMINISHING IMPORTANCE OF THE TRIAL

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

Legal Studies, Vol. 31 No. 4

From adversarialism to managerialism: criminal justice in transition

marginalize traditional safeguarding procedures without putting anything in their

Legal Studies, Vol. 31 No. 4

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