adversarialism article

From adversarialism to managerialism:criminal justice in transitionlest_201 519..546Jenny McEwan*Professor of Criminal Law, Exeter University

The criminal justice system of England and Wales has been subject to a series of essen-tially ad hoc reforms that depart to a significant degree from its adversarial heritage andrepresent a threat to fair trial rights under Art 6 of the European Convention on HumanRights. Far from moving closer to the European inquisitorial model, as has been sug-gested by some commentators, criminal procedure is becoming increasingly dominated bymanagerialist concerns. Intolerance to litigant control is motivated by the desire toincrease efficiency and reduce cost, although the replacement of party autonomy in termsof control over the conduct of the case by state power over process corresponds to somedegree to the descriptions, in the work of Mirjan Damaka, of the system favoured byactivist states. However, the financial crisis facing the new government means that thesituation 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 justicesystem in England and Wales away from its adversarial tradition, a development thathas been to some degree recognised in academic literature, has very different impli-cations from those commonly ascribed to it. There has been considerable discussionof 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 intotheir criminal justice systems. For European countries to share a common, hybridmodel bringing rules of evidence closer together would allow greater cooperation

* [email protected] am extremely grateful both to Professor John Jackson for his generous help with a draft of thispaper, and to the anonymous reviewers who also made constructive comments. Responsibilityfor its shortcomings is mine alone.1. JD Jackson The effect of human rights on criminal evidentiary processes: towardsconvergence, divergence or realignment? (2005) 68 MLR 737; J Jackson Transnational facesof justice: two attempts to build common standards beyond national boundaries inJ Jackson, M Langer and P Tiller (eds) Crime Procedure and Evidence in a Comparative andInternational 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 andM Summers (eds) The Criminal Process and Human Rights: Towards a European Conscious-ness (London, Dordrecht: Martinus Nijhoff, 1995) p 197. Scepticism in J Hodgson FrenchCriminal Justice: a Comparative Account of the Investigation and Prosecution of Crime inFrance (Oxford: Hart Publishing, 2005); P Legrand European legal systems are not converg-ing (1996) 45 1CLQ 52; SJ Summers Fair Trials: the European Criminal Procedure Traditionand the European Court of Human Rights (Oxford: Hart Publishing, 2007).

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across Europe in bringing offenders to trial and sharing evidence between jurisdic-tions. And, were civil and common law jurisdictions indeed to develop new, similar,models of criminal procedure with common goals, that might suggest convergencealso in their political ideologies and economic structures. The argument here,however, is that while this country is altering its criminal justice system in funda-mental ways, the direction is not towards civil law models, but towards one com-pletely different from either the civil or common law traditions. The new priority isone of efficiency.

Those jurisdictions associated with the inquisitorial model are similarly dispens-ing with some of their own traditional features to replace them, not so much accord-ing to adversarial ideals, but in order to prioritise economy and expedition. Thusconvergence is not towards a centre ground between the two kinds of system, butpossibly towards a new model sharing elements inimical to both. Similarly, ratherthan occupying a position along the continuum between the Crime Control and DueProcess models of criminal justice, as Herbert Packers analysis would suggest,2 anew value choice may reflect the view that both models are too costly. In an erawhere criminal processes must be viewed as much through the lenses of cooperationand management as from the perspective of the battle premise on which bothPackers models are founded, his classic linear representation must be replaced bya triangular one; for either Crime Control or Due Process requirements may bediluted according to managerialist ends, as may inquisitorial or adversarial charac-teristics. Since the nature of legal processes has been said to be linked to the politi-cal structures and philosophies of the states in which they operate,3 thesedevelopments suggest that there are many societies currently in a state of significantpolitical transition.

Adversarial proceedings involve a dispute between two sides. They should be intheory in a position of equality before an adjudicator whose role is passive and neutralin 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 byallowing parties control of their own case in terms of selection of evidence and of theissues with the trial as the battleground on which the issue of the defendants guilt isresolved. Since the process is one of conflict resolution, the parties may engage indeals without much interference from the court. There are obvious merits in a criminaljustice system that distances the accused from the state, however well intentioned itsofficial agencies may be; in the USA the historically antigovernmental consensus5demands such a distancing. In contrast, inquisitorial systems, where facts are adducedexclusively by agents of the state, attempt to ensure fairness through a hierarchicalofficialdom designed to provide supervision and review by each layer of the system ofthe 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 UniversityPress, 1986), and in a different context, N Lacey The Prisoners Dilemma: Political Economyand Punishment in Contemporary Democracies Hamlyn Lectures (Cambridge: CambridgeUniversity 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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is no more important than the pre-trial processes.6 Mounting costs in civil law juris-dictions, 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 itsgovernment that causes adversarial procedures to become established. The moregovernments are driven by ideology to intervene in the lives of their citizens to realisethe collective notion of the good (activist government), the more as a matter ofanthropological fact they tend to evolve systems of justice concerned with the fulfil-ment of state programmes and policies. The state will therefore play a key role in thecriminal 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 autono-mous. Evolution from one system to the other, on this view, would reflect a changingperception of the proper role of government. Damaka argues that activist states areintolerant of litigant freedom; increasing government activity in pursuit of publicwelfare can make litigation seem a burden on society. In such a climate, adversarialvalues are challenged; criminal and civil litigation may be perceived as a local issuepertaining to the individual litigant rather than essential protections to the rights andfreedoms of every member of society. In Damakas view, bureaucrats dislike day-in-court trials since results are relatively unpredictable. More fundamentally, heargues that party control of litigation presents a problem to the activist state, whichregards the processes of proof as a means of eliciting facts of importance for theimplementation 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 docu-ments, and so prefers the parties to do the work. The result is a conflict-solving modelof criminal justice.8

European states, however, currently share a common problem irrespective of theirprocedural and political structures. Many administrations lack the resources to dealwith 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 breachof Anti-Social Behaviour Orders (ASBOs)10 created by successive Labour govern-ments, and the constant stream of reform to criminal procedures and sentencingpowers.11 Civilian jurisdictions also have indulged in over-criminalisation,12 making itdifficult 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 1.8. Damaka, above n 3.9. No definitive figure appears possible. Nick Clegg MP estimated in 2001 that 3000 hadbeen 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 Impen-etrable? 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, suggestsTheresa May Guardian 28 July 2010.11. Causing the Lord Chief Justice to plead for mercy: Lord Judge CJ Review of the Admin-istration of Justice in the Courts (London: TSO, 2010).12. See eg L Marafioti, Italian criminal procedure: a system caught between two traditionsin Jackson, Langer and Tiller (eds), above n 1, p 94.

From adversarialism to managerialism: criminal justice in transition 521


expense.13 Strategies for dealing with this might include either disappearing indi-viduals from the system altogether or speeding them through it, keeping costs to aminimum. In criminal cases, this involves the emergence of an administration-centredmanagement ethos engaged in inventing new ways to process large numbers ofcriminals or suspected criminals at minimal cost,14 although another impetus was anideological preference for the methods of manufacturing industry and the discipline ofthe market.15 Thus the traditional autonomy and discretions of the professionalsworking in the police and Crown Prosecution Service (CPS)16 and also the courts17may conflict with various performance targets set by managers.18 Similarly, affordingthose accused of crimes free choice in relation to how matters proceed may conflictwith the goals of caseload reduction and speed.

Would it matter if our criminal processes ceased to be adversarial, and becameinstead speedy and cheap to run? Some writers believe adversarialism to be an emptylabel; they make an empirical case that the dichotomy between adversarial andinquisitorial procedures is inaccurate, primarily because no individual jurisdictionprecisely displays all the features associated with one or the other system in Dam-akas classic model.19 In that sense, all systems are already hybrids, each incorpo-rating different elements from a wide-ranging menu of procedures; in the absence ofa pure example, the distinction is meaningless, or at least, misleading. In reply, it hasbeen said that, nevertheless, an ideal inquisitorial or adversarial system offers auseful 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 andJustice 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 manageri-alism in criminal justice policy (1998) 25 JLS 313: L Bridges Towards a culture of compla-cency: criminal justice under new Labour (2010) 79 Criminal Justice Matters 22.15. RB Denhardt The Pursuit of Significance: Strategies for Managerial Success in PublicOrganizations (Belmont CA: Wadsworth, 1993); A Freibert Managerialism in Australiancriminal justice: RIP for KPIs? (2005) 31 Monash L Rev 12; A Sanders, RYoung and M BurtonCriminal 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 tojustice to managing justice: the transformation of the judicial role (2002) 12 Journal of JudicialAdministration 5.18. E McLaughlin and J Muncie The criminal justice system: new Labours new partner-ships 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 procedureand evidence under Labour (2010) 79 Criminal Justice Matters 25; Home Office DepartmentalReport 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 May2010.19. Eg M Cappeletti and BG Garth Civil Procedure: XVI International Encyclopaedia ofComparative Law (Tbingen: JCB Mohr, 1996) pp 3132; a rather different objection inSummers, above n 1.20. O Chase American exceptionalism and comparative procedure (2002) 50 AmericanJournal 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



of the categorisations, it matters little whether systems become more or less adver-sarial; they would simply be operated within a different overall culture and should beinterpreted in a different way. And it does indeed seem that each of the two traditionsoperates as a powerful cultural lens. In the International Criminal Court (ICC) and theInternational Criminal Tribunal for the former Yugoslavia (ICTY), attempts to mergetwo different legal approaches have had disquieting results.21 Civil lawyers regard theconfirmation hearing at ICC as analogous to instruction in civil systems, whereascommon lawyers consider it a kind of filter to ensure only really significant cases goto 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 andRussia,23 which have attempted to graft adversarial elements on to inquisitorial struc-tures, lawyers mounted fierce resistance, not simply because of reluctance to learnnew tricks. There is a deeply felt ideological objection to the notion that the outcomeof a criminal trial is a matter for the parties to decide to their own satisfaction. Theinquisitorial/adversarial dichotomy seems to reflect some deeply rooted views aboutthe proper function of criminal proceedings in terms of the relative importance ofascertaining the true facts as opposed to using party control over process as a protec-tion against state power.

Change therefore will matter, if the adversarial features we are losing reflect anideology containing important values, and if those values are not effectively protectedby the system that is emerging to replace it. The essential principles of legality and dueprocess are not, of course, exclusive to adversarial proceedings; the right to a fairhearing under Art 6 of the European Convention on Human Rights (ECHR) must berespected 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 theEuropean Court of Human Rights (ECtHR) of the right to an adversarial trial as a fairtrial right under Art 6 of the Convention may give the appearance of convergence, buttheir interpretation of the right does not afford control over proceedings. Adversarialtrial in this context means merely that all evidence must be produced in the presenceof the accused at a public hearing with a view to adversarial argument.25 Hence lossof control over the conduct of the case does not in itself inevitably threaten fair trialrights, but replacement of an adversarial system with a managerial one that lacks theprotection for such rights employed by inquisitorial systems does threaten fundamen-tal 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 andGarth, 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 ininternational 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 toadversarial procedure in Italy (Italian criminal procedure code of 1988) (2005) 4 WashingtonUniversity Global Studies Law Review 567; Marafioti, above n 12.23. S Pomorski Modern Russian criminal procedure: the adversarial principle and guiltyplea (2006) 17 Criminal Law Forum 129; PA Jordan Defending Rights in Russia: Lawyers, theState and Legal Reform in the Post-Soviet Era (Vancouver: University of British ColumbiaPress, 2005).24. Lanz v Austria App No 24430/94 ECtHR Judgment, 31 January 2002 [52]; cf Ramanaus-kas 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.



has not been accompanied by profound consideration of the values that underpinnedtraditional structures in England and Wales. Rather, it has evolved through the com-bined effects of a series of independent ad hoc measures that fundamentally changepre-trial processes and trial procedures.26 The absence of any normative underpinningto these developments poses three problems. One is that adversarialism is more thanan empty label or aid to the interpretation of judicial systems; it has at its core anunshakeable commitment to the fundamental importance of protecting the parties byallowing them, rather than the state, to direct proceedings. The second is that mana-gerialism is indifferent to the fair trial rights protected by both traditional models intheir different ways. Third, the pursuit of managerialist goals affects the ability of bothsides in a criminal case to direct its outcome. This may restrict the ability of prosecu-tors 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 towardsaccuracy of verdict. Adversarial traditionalists claim that to ask parties who are highlypartial and highly motivated to dig for the facts is the most effective way to ensure thatnothing is missed,27 and that partisan manipulation of evidentiary materials, assumingequality of arms, is the most effective way to place an independent tribunal of fact ina position to determine the truth an assumption at best unproven and at worst highlyimplausible.28 Civil law jurisdictions see the criminal process as a truth-findingexercise29 conducted by the state; the policy goals of activist governments are morelikely to be achieved where verdicts are accurate. Neither system claims perfection inrelation to establishing the truth, but accuracy is not the only objective of any trial. Art6 sets out a number of due process principles30 apparently designed to offer protectionto accused persons against the might of the state. Additionally, process values such asensuring that the state does not stoop to obtaining evidence by illegal methods willtrump the pursuit of the truth in both inquisitorial and adversarial proceedings.31 Sothe goal of accuracy can give way to perceptions of fairness in terms of the way theforces of government have behaved; that may lead to an undeserved acquittal, but notthe conviction of an innocent person. Not even the most unreconstructed utilitarianwould 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 Justiceand efficacy? The royal commission on criminal justice (1994) 21 Journal of Law andSociety 1.27. Sir P Devlin The Judge (Oxford: Oxford University Press, 1979) p 61; JH WigmoreEvidence in Trials at Common Law (Boston MA: Little Brown and Co, 4th edn, 1974) V sect1367.28. N Jrg, S Field and C Brants Are inquisitorial and adversarial systems converging? inC 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 Goltdam-mers Archiv fr Strafrecht 161.30. Signatory states must provide a public hearing before an independent impartial tribunalwithin a reasonable time; accused persons must have reasonable time and resources to preparetheir defence, and access to legal representation.31. Damaka, above n 3.



whose design presents a clear risk of innocent defendants being convicted, forinstance, to serve as a deterrent to others; the fear of being used as an example in thatway is likely to undermine confidence and could lead to social breakdown.

System integrity and commitment to the truth are, then, values shared by bothadversarial and inquisitorial criminal proceedings. Adversarialism is identified by thesignificance it attaches to freedom to act and therefore bargain. Party autonomy in thesense of case ownership must be distinguished from defendant autonomy, a fair trialright under the EC, which means that defendants are entitled to respect as individualsand 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 toDamaka, the reactive state inevitably accepts a dispute resolution model,34 as in theadversarial concept of the guilty plea; if the crime charged is admitted, or a plea to alesser charge accepted, the case is closed. Plea bargaining is the ultimate expression ofparty autonomy, even potentially overriding system commitment to the truth. Indeed,the dispute resolution model is anathema to the many continental lawyers who believethat punishment for violation of the criminal law is not a matter for agreementbetween prosecution and defence.35 It could be concluded therefore, that the keyideological difference between the two systems is that party control overrides com-mitment to the truth in the common law systems, whereas in civil law systems thereverse is the case. However, the gap between caseloads and resources is forcing theguilty plea upon many European countries,36 not so much in recognition ofthe philosophical importance of party autonomy but as a by-product of their drive tomanage their criminal processes more cost-effectively.

Bargains involving plea and sentence are not the most significant instance ofprotection of accused persons through the exercise of party autonomy. Not everybargain brings benefit. Party ownership of the case, on the other hand, involves theability to amass evidence and choose witnesses for oneself, as opposed to having topetition the court to do it, and to challenge opponents evidence by means of con-frontation and cross-examination. The correspondingly limited judicial role reflectshistorical distrust of public officials and the complementary demand for safeguardsagainst abuse37. However, emphasis on party autonomy does not necessarily reflectsuspicion that state officials may be partial. Their own efficiency depends heavily onthe 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 Accuracyin 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 IndianaLaw Journal 301 at 302.34. Damaka, above n 3.35. RJ Allen and GN Alexakis Utility and truth in the scholarship of Mirjan Damaka inJackson, Langer and Tiller (eds), above n 1, p 329; T Weigend The decay of the inquisitorialideal: plea-bargaining invades German criminal procedure in ibid, p 39.36. M Langer From legal transplants to legal translations: the globalization of plea-bargaining 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 thepost-Soviet legal sphere: adversarial procedure, jury trial, plea-bargaining and the inquisitoriallegacy 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.



century in England as the best way of protecting defendants from ill-informedjudges.38 And while we may be confident that matters have improved a great dealsince, it remains the case that giving control of procedures to the parties reduces theprospect of corruption or intimidation. The chief justification of adversarial proceed-ings, then, is their ability to protect individual rights and freedoms.39 In experimentalstudies by Thibaut and Walker40 and Lind and Tyler,41 participants, including volun-teers from France and Germany,42 demonstrated a clear preference for proceduresdesigned to the adversarial model. Neither system demonstrated superiority as aninstrument of investigation. It seems that adversarial procedures were favoured for theapparently greater emphasis placed upon values such as autonomy, dignity andrespect. Criminal trials have a significance beyond the identification of offenders andthe selection of measures to ensure that they do not damage society again. Theadversarial tradition takes account of the difficulty of ensuring fairness betweenparticipants when one is the state itself. Criminal cases are unlike civil ones in that inthe former it is always the defendant who has most to lose.

It does not follow that accused persons may pursue their own interests withoutrestraint; that would risk trials of inordinate length and complexity. Procedural devicessuch as pleadings prevent proceedings running on outrageously.43 There are long-standing rules that cut debate short, sometimes abruptly. An example is that a wit-nesss answer to a question put in cross-examination on a matter relating to his or hercredibility may not be challenged by contradictory evidence,44 even where the cross-examiner has evidence that could easily disprove the witnesss denial. And it hasbecome necessary to impose constraints on the behaviour of lawyers operating withinadversarial proceedings, in terms of tactical game playing at the expense of revealingthe truth, and in terms of treatment of witnesses and victims. This rebalancing isdiscussed below. Adaptations of the traditional Anglo-American model that preservethe most crucial elements of party autonomy, while both protecting the apparentlycompeting interests of other participants and promoting efficiency, are perfectly pos-sible. It is not clear, however, that the way our system of criminal justice is developingdoes preserve that essential adversarial feature. Rights to autonomy of any kind meannothing unless those who exercise them have sufficient information and understandingof their situation to exercise their choices in their own best interests. Accused personsmust 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: LawyersRoles and Lawyers Ethics (Totowa NJ: Rowan and Allanheld, 1984) p 83; M FreedmanLawyers 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); DKBrown 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 541.43. Damaka, above n 3.44. Harris v Tippett (1811) 2 Camp 637. There are exceptions to the rule.



before they make decisions that will significantly affect their future. Should thosefeatures be absent, the appearance of defendant autonomy is an illusion, and controlover 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,45the length of complex trials, and delays and repeated adjournments at magistratescourt level.46 A perceived need to impose restrictions upon parties to criminal pro-ceedings has become the focus of considerable judicial concern and activity:

The defendant is entitled to a fair trial . . . It is not however a concomitant ofthe entitlement to a fair trial that either or both sides are further entitled to take asmuch time as they like . . . Resources are limited . . . It follows that the sensible useof time requires judicial management and control.47

Like civil processes in England following the Woolf Report,48 criminal proceedingshave developed new powers for judges and increasingly emphasised the value of earlysettlement.49 Although there are indications that judicial neutrality should be main-tained,50 judges are now required to intervene proactively in the management ofcriminal cases before and during trial, to encourage agreement where possible and toensure that trials begin promptly, are as narrowly focused as possible, and do not lastlonger than necessary. Judges were themselves the prime movers in this, developingradical new principles even before the new Criminal Procedure Rules Committee(CrimPRC)51 first produced the Criminal Procedure Rules (CrimPR) in 2005.52 SirRobin Aulds Review53 approved the judicial approach, which was in turn influentialin the content of the CrimPR.

45. Where a plea of guilty is entered only at the last minute before the trial is due tocommence, 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; LordChancellor and Attorney-General Secretary of State for Home Department Justice for All Cm5563, 2002; in Scotland, Lord Bonomy Improving Practice: The 2002 Review of the Practicesand Procedures of the High Court of Justiciary (Edinburgh: Scottish Executive, 2002), availableat 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: cfChaaban [2003] EWCA Crim. 1012; [2003] All ER (D) 355.48. Lord Woolf MR Access to Justice Final Report (London: Department of ConstitutionalAffairs, 1996), available at http://www.dca.gov.uk/civil/final/contents.htm.49. H Genn Judging Civil Justice Hamlyn Lectures 2008 (Cambridge: Cambridge UniversityPress, 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 Crim2485 at [41]; Berry [2010] EWCA Crim 313.51. Established Courts Act 2003, s 72(1). The principles were first developed in decisionssuch as Chaaban, above n 47 and Jisl above n 47; See RL Denyer The changing role of thejudge 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.



There was considerable support within the legal profession54 for the creation of theCrimPRC, but it is not clear that it sprang from an appreciation of the impetus forculture change. Discussion55 of the merits of devising a set of rules tended to concen-trate on the need for simplification and codification of existing criminal procedurerules, then contained primarily in a diverse collection of practice directions. LadyScotland informed the House of Lords that the object was to codify criminal procedurerules via one rule-making body, so that the Rules would be more accessible and moreconsistent. However, perhaps more significantly, she added: We hope that will under-pin the goal of greater integration in the criminal justice system,56 a remark she wasnot required to explain. The resulting quiet revolution,57 in fact has profound impli-cations beyond the purely practical, and affecting the balance of power between theparties and the Bench.

JUDICIAL CASE MANAGEMENT: THE SEA CHANGE58

The new interventionist judge has emerged partly in reaction to the failure of triallawyers to comply with statutory defence disclosure requirements. Under the CriminalProcedure and Investigations Act, a defence case statement must set out, inter alia, thenature of the accuseds defence, indicate the matters of fact on which they take issuewith the prosecution and why, particulars of any other factual matters on which theyintend to rely, any point of law they wish to take, and any authority on which theyintend to rely for that purpose.59 Although the Court of Appeal has now declared war60on defence case statements containing only generalities such as The accusation isdenied,61 trial judges seem reluctant to discipline the defence through measures, suchas the drawing of adverse inferences,62 which penalise the defendant.63 An exasperatedMoses LJ, however, went so far as to suggest that a trial judge may be entitled todisallow any defence not disclosed at the proper time at the Plea and Case Manage-

54. Including the Law Society, the General Council of the Bar and the Criminal Bar Asso-ciation: 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; HomeOffice 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 LJat [25].59. Criminal Procedure and Investigations Act 1996, s 6, as amended by Criminal Justice Act2003, s 33 and Criminal Justice and Immigration Act 2008, s 60. Magistrates also are nowrequired to ensure defence cooperation: Protocol on Criminal Case Management in the Mag-istrates 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 Thedefence statement [2009] Crim LR 340.61. J Plotnikoff and R Woolfson A Fair Balance?; Evaluation of the Operation of Disclo-sure 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 bythe 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.



ment Hearing (PCMH).64 It was entirely predictable that advocates raised in a cultureof keeping their powder dry would resist a transparent system designed to facilitateagreement on the issues before the case is heard.65 Indeed, the Rules aim to change thatculture. Where issues are identified in advance, it is easier to gauge the likely lengthof the trial and avoid adjournments while legal points are disputed. It may assist alsowith accuracy of verdict. Conducting trials with precision is one way of getting to thetruth more often.66

Judges and justices clerks have a duty to manage litigation, enforce the CrimPR67and ensure that case management directions are complied with.68 They should settimetables requiring prosecution and defence to cooperate and exchange informationpre-trial so that key issues can be identified, and if non-contentious, agreed.69 AtPCMHs, judges will expect a defence case statement to have been served on theprosecution. They must shoulder responsibility for and rectify court failings such aslate, cracked70 adjourned or prolonged trials, and duly exercise strict controls overlitigants handling of their own cases. However, case management goes further thanmerely ensuring at the PCMH that the parties are prepared for the trial; judges havebeen upheld by the Court of Appeal in requiring written submissions rather than oralargument,71 and in limiting cross-examination and preventing the defence from callingcertain witnesses. This was good trial management.72 They may challenge thenumber of witnesses to be called and the length of time allocated to their examina-tion.73 Judges who believe themselves neutral umpires may be uncomfortable withtheir new role.74

The parties, meanwhile, have a duty to prepare and conduct criminal cases inaccordance with the overriding objective.75 They must each nominate case progres-sion officers who should liaise with each other and with the courts case progressionofficer.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 723at 724726. Contrast Tinnion v Reading Crown Court [2009] EWHC (Admin) 2930 where itwas held that the appropriate recourse where an alibi notice has not been served is to makeadverse comment and allow adverse inferences to be drawn, rather than deny the accused thedefence.65. See eg arguments of A Hall Where do the advocates stand when the goalposts aremoved? (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 tocommence, 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 Effec-tive 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 L835. But see Judge LJ, Evidence to the Select Committee on Constitutional Affairs, 22 June2004.75. CrimPR r 1.2(1)(a).76. CrimPR r 3. 4(1)(a).



made by the court,77 and at once inform the court and all parties of any significantfailure (whether or not that participant is responsible for that failure) to take anyprocedural step required by these Rules, any practice direction or any direction of thecourt.78 Thus counsel must inform the court of breaches by their own client, redefin-ing the advocate-client relationship. Lawyers must reconcile their obligations to thecourt with those owed to their clients and engage with each other to the extentnecessary to prepare the case for the case management process. They may not furthertheir clients interests by taking advantage of errors made by their opponents79 or byusing tactical manoeuvres.80 The new ethos requires the court, prosecution and defen-dant (and defendants representative if any) to promote the efficient and expeditiousdisposition of the case. The overriding objective, with which all participants in acriminal case must comply, demands that criminal cases be dealt with justly.81 TheRules consider an element of justice to be dealing with the case efficiently andexpeditiously.82 Thus even the defendant, represented or otherwise, must accept thatefficiency is part of justice. The aphorism justice delayed is justice denied is fre-quently offered to explain the advantages of this approach to the defence, and indeedmany defendants will benefit from costs and timescales being kept within reasonablelimits. Also, the CrimPR recognise that the needs of efficiency must be balancedagainst other time-honoured principles; also incorporated into the definition ofjustice are the goals of acquitting the innocent and convicting the guilty;83 recogn-ising the rights of a defendant, particularly those under Art 6 of the ECHR (and thusthe presumption of innocence);84 and dealing with the case in ways that take intoaccount, inter alia, the gravity of the offence alleged, and the severity of the conse-quences for the defendant.85 Against this, all participants must take account also of theseverity of the consequences for others affected,86 the needs of other cases87 and theinterests of witnesses, victims and jurors.88

Although it has been claimed that the CrimPR uphold a robust adversarial pro-cess,89 the inevitable consequence of these changes, together with the ever-increasingrigour of defence disclosure requirements, is that elements of party control over theconduct of the case are transferred to the court. The new emphasis on cooperationbetween the parties challenges many of the longstanding convictions and practices ofcriminal advocates who are used to entirely partisan activity. For example, the Courtof 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 March2005, available at http://www.justice.gov.uk/criminal/procrules_fin/contents/frontmatter/foreword.htm.



from legal errors in the prosecution case, the defence are obliged to flag them upbefore the trial begins. In the past defence lawyers would simply have sat back and, atthe trial, waited until close of the prosecution case to end the matter with a successfulsubmission of No Case to Answer. Adopting such a tactic now will simply mean thatthe prosecution will be granted an adjournment to rectify the mistake.90 Arguably, theeffect of CrimPR r 3.10(h), which requires each party to indicate at the PCMHwhether he intends to raise any point of law that could affect the conduct of the trialor appeal entrenches this decision. The new ethos of cooperation demands a signifi-cant culture change; advocates brought up within adversarial traditions that regard theindependent criminal advocate as a prober, an analyser, a scrapper, a man with astrange devotion to his client91 are unlikely to abandon their combative approach todefence work while they can see no advantage to their client in doing so. In order forthe new regime not to be resented and resisted, they must agree that restrictions ontheir freedom of action are justified in terms not only of efficacy but also of fairness.

Nevertheless, the recharacterisation of criminal trials demanded by the combina-tion of interventionist judges with new responsibilities for the parties seems to havegenerated little debate. This is not altogether surprising. The nature of proceduralreform is generally a matter of profound indifference not only to laymen but also tomost of the legal profession. Rules of legal procedure are usually regarded as neitherthe focus of philosophical debate nor as set in stone;92 they must adapt to currentproblems and perceived impracticalities. However, legal procedural rules are thefoundation on which legality rests. They are rarely just a matter of bureaucracy forparticipants in the system they are also central to the notion of a fair trial.93 Soundprocedure maximises the likelihood of a correct outcome. Major changes can haveprofound effect on the substantive law. Victorian reform of procedure opened thecourts to the non-privileged: the effect on the common law was far greater than theeffect of the political revolutions of France and the United States on the law of thosecountries.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 CivilProcedure Rules following the Woolf Report provides it.95

There is no valid reason to object in principle to reform designed to promote theefficient use of court time. Even in the USA, with its traditional national hostility toBig Government and bureaucracy,96 caseflow management has been acceptedfor 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 LegalAction 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: OxfordUniversity 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 EfficiencyTimelines and Quality: A New Perspective from Nine State Criminal Trial Courts (Williams-burg, VA: National Center for Trial Courts, 1999). But California has the most highly developedsystem with draconian defence disclosure requirements under Proposition 115 (1990). Other



American Bar98 and are in Damakas view consistent with adversarialism;99 as notedabove, adversarial trials have long operated restrictions on evidence for pragmaticreasons. Nevertheless there is considerable concern about the defence disclosurerequirements introduced in recent years. Although pre-trial disclosure has been ratio-nalised in the language of managerialism rather than the language of legal theory ordoctrine,100 it is difficult to defend, on any theory, the idea that one side should be ableto take the other by surprise to the extent that the accuracy of the verdict is substan-tially undermined. Accuracy is one of the objectives of the adversarial trial. Thedefence would have to be disclosed at the trial stage and so pre-trial disclosure isunobjectionable where it simply moves the timeframe of argument forward. This inturn increases the likelihood of early resolution of the dispute or the accuracy of theverdict, should the charge be contested.101 The requirements must be reasonable,however. Time limits do pose logistical headaches for defence lawyers who must, inorder to consider their defence, absorb the information in CPS documents, havemanaged 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 theprosecution documents are incomplete and/or late.

More contentiously, defence disclosure confronts lawyers with some challengingquestions of professional ethics in terms of the competing interests of court and client,conflicting loyalties unknown in traditional adversarial settings. The Rules are said torespect legal professional privilege:

The overriding objective . . . must not be read as detracting from a defen-dants right to silence or from the confidentiality properly attaching to what passesbetween a lawyer and his client. Such rights in any event are guaranteed by theHuman Rights Act 1998.102

Yet, to many lawyers, the obligation to disclose their defence amounts to a breach oflegal professional privilege. The statement quoted is, however, accurate in that thisderogation from the confidentiality principle derives not from the Rules, but from

examples of case management in the common law world include the diverse systems acrossAustralia: Australian Government and Australian Institute of Criminology Criminal TrialDelays in Australia: Trial Listing Outcomes, Research and Public Policy Series No 74 (Can-berra: Australian Institute of Criminology, 2007); in New Zealand, W Searle et al StatusHearings Evaluation: a New Zealand Study of Pre-Trial Hearings in Criminal Cases (Well-ington: Minstry of Justice and New Zealand Law Commission, 2004); NZLC Criminal Pre-Trial Processes: Justice Through Efficiency Report 89 (Wellington: Minstry of Justice and NewZealand Law Commission, 2005).98. American Bar Association Criminal Justice Standards: Speedy Trial and Timely Resolu-tion of Criminal Cases (Washington DC: ABA, 3rd edn, 2006); American Bar AssociationPrinciples 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: SydneyInstitute of Criminology, 2008).101. Damaka, above n 3.102. Lord Phillips, above n 89; The Law Society recommends defence advocates to considerwhether compliance with CrimPR in any particular case would jeopardise human rights or legalprofessional privilege: Law Society Criminal Procedure Rules: Impact on Solicitors Dutiesto the Client (2008), available at http://www.lawsociety.org.uk/documents/downloads/practicenote_criminalprocedurerules.pdf.



statutory provisions. Indeed, only Parliament may legislate in derogation of legalprofessional privilege, and then only because of some greater public interest.103 Thedefence disclosure requirements have the potential to inhibit the provision of legaladvice in criminal cases. It would be no surprise to find lawyers informing the courtthat 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 isalso possible that lawyers who consider a specific disclosure to undermine legalprofessional privilege will resist it on the ground of a potential conflict with the rightto 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 unimple-mented for several years has suddenly been brought into force. Section 34 CriminalJustice Act 2003104 requires the defence to provide at the pre-trial stage a noticedisclosing full identification details of the witnesses they intend to call. The chiefreason for the implementation of the section appears to be the alleged impracticalityof investigating witnesses for such matters as criminal record during the trial.105 TheCourt of Appeal had considered that such a requirement would indubitably underminelitigation privilege, which relates to communications made at the stage when litigationis pending or contemplated. Litigation privilege is based on the idea that legalproceedings take the form of a contest in which each of the opposing parties assembleshis own body of evidence and uses it to defeat the other.106 Laws LJ explained therisks attached to early identification of defence witnesses: if the case does not remainconfidential 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, witnessesmanipulated.107 To allay fears in relation to the involvement of the police with poten-tial defence witnesses, the implementation of s 34 was accompanied by a Code ofPractice that provides that no such interview can take place without a witnesssconsent. Also, the witness may have their own legal representative present, althoughthey may not necessarily receive legal aid funding for that. The defendants solicitorattends only with the witnesss consent.108 Such interviews will be rare, and reservedfor 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 manypotential 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 legaladvice at police stations [2010] 73 MLR 349.104. Amending Criminal Procedure and Investigations Act 1996, s 6C; Criminal Justice Act2003 (Commencement no 24 and Transitional Provisions) Order 2010, SI 2010/1183 broughtthe 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 Investiga-tions Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations2010 [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 DCv 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 athttp://www.opsi.gov.uk/acts/acts1996/related/ukpgacop_19960025_en.pdf.109. Lord Bach, House of Lords Grand Committee, 18 March 2010; A Edwards Defencewitness notices Law Gazette 6 May 2010.



interview before trial;110 should their names not be disclosed, however, those who dotestify may find themselves cross-examined as to the reason for the non-disclosure.The enhanced opportunity to scrutinise witnesses criminal records scarcely seemssufficient justification for this derogation of the Art 6(3) right to consult a lawyer inprivate a substantive as well as a procedural right.111 The risk of collusion was heldinsufficient in Lanz v Austria.112

It could be argued that in the new cooperative climate there is no longer a reasonto protect a defendants litigation privilege, although it is claimed that the CrimPRuphold the adversarial tradition: The presumption of innocence and a robust adver-sarial process are essential features of English legal tradition and of the defendantsright to a fair trial.113 Yet a redistribution of power within the process might indicatea significant move either towards a truth-seeking inquisitorial model or to a manage-rial one in which the court intervenes actively to promote efficiency but is notresponsible for searching out the truth. In the managerial model, expedition becomesa particularly important goal; power shifts from the parties to the judges, who maycompel collaboration in order that cases can be processed as quickly as possible.114According to Langer, it is less problematic (although not entirely unproblematic) toswitch from adversarial to managerial procedures than it is to introduce inquisitorialarrangements from an adversarial base. That would require deep changes to institu-tional structures as well as to culture, since inquisitorial systems require review of theactivities of all state representatives as the case progresses through the hierarchy.115Such processes have not been introduced in England and Wales.

The transfer of power to the court represented by a move to a case managementmodel 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 theprospect of fairness being entirely dependent on judicial skill, resources and integritythat alarms some defence advocates as they contemplate the decline of their ability torun their case in their own way.116

REBALANCING THE CRIMINAL JUSTICE SYSTEM

Although, in documents couched in heavily managerialist language, the political viewhas 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, Houseof Lords Grand Committee, 18 March 2010. Fear of facts laid before counsel being disclosedto clients detriment undermines the right to legal advice: R (on the application of MorganGrenfell & Co Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563, per LordHoffmann [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, Managerialjudges (1982) L Rev 374.115. Langer, ibid.116. Eg Hall, above n 65.



victims and witnesses,117 some of the pressure to protect them is firmly rights-based.118EU legislation requires a Member State to take measures to minimise the effect of anycommunication difficulties that might impact upon victims ability to participate incriminal trials.119 Few would argue against measures designed to facilitate the partici-pation of victims as witnesses in an adversarial trial, assuming no diminution ofdefendant rights. Thus concerns that child defendants could be at a disadvantage whenjuvenile witnesses availed themselves of special measures in order to testify againstthem120 have been addressed.121 Nevertheless, the efforts made to facilitate victimparticipation in criminal procedures do not make the victim a party in the case in thestyle 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 representedby the rule against hearsay. The relaxation of the exclusionary rule represented bythe wide range of exceptions provided by the Criminal Justice Act 2003122 could beargued to be equally as consistent with a move to a managerial model as it issuggestive of an adoption of European modes of proof. It is much quicker to readtestimony than to listen to it, and much easier to schedule trials if it is not essentialthat witnesses are available. And it is certainly striking that it is European judges,123so reliant themselves on the dossier, who are most alarmed by the diminishingreliance on oral evidence in criminal trials in this country, taking the view that thedefence right to challenge is undermined where the prosecution rely on a writtenwitness statement that is decisive to the verdict and was made in circumstanceswhere the defence were not represented. The statutory hearsay exceptions dependon the unavailability of the witness rather than the reliability of the evidence in theparticular case. In inquisitorial jurisdictions, the defence have the opportunity toquestion witnesses at the instruction stage.124 It was the absence of such an oppor-tunity that troubled the ECtHR. In Horncastle both the Court of Appeal125 and theSupreme Court126 seemed untroubled by the ECtHRs misgivings, employing argu-ments that to some degree mirrored the Crime Control justifications offered bylegislators 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 forHome Department, above n 48.118. The ECtHR emphasises their rights to liberty and to security, and to privacy, Arts 5 and 8respectively: Doorson v Netherlands (1996) 22 EHRR 330.119. To an extent comparable with the measures of this type which it takes in respect of thedefendant: European Framework Decision on the Standing of Victims in Criminal Proceedings2001, 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 HumanRights.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 ofLords. See M Requa (2010) 14 E & P 208.127. I Jones A political judgment? Reconciling hearsay and the right to challenge (2010) 14E & P 232.



exceptions are available to the defence as well as the prosecution, witnessesunavailable through fear (the most widely-used hearsay exception)128 are morelikely to testify for the prosecution. Also, the wider admissibility of evidenceof the defendants bad character is almost entirely for the advantage of theprosecution.129

A further development in the attempt to protect witnesses is the jury-less trial. Inrelation to complex fraud trials, it has been successfully resisted,130 but a provisionrelating to interference with jurors131 is in force. The Court of Appeal upheld adecision to proceed without a jury in a notorious robbery trial where there was asignificant danger of jury tampering, but it was noted with alarm by some defencelawyers that the subsequent trial conducted by Treacy J took considerably less timethan had the earlier, failed, trials before various juries.132 This precipitated concernthat such trials will become increasingly common.133 However, the Court of Appealhas stressed more recently that judge-only trials are a last resort, noting that juryprotection over the duration of shorter trials may be more manageable.134Although not an essential characteristic of adversarialism, the jury trial is the naturalcorollary of the distrust of officialdom that inspires it.135 In the USA the idea thatjurors follow their consciences reflects the view of seventeenth century egalitarianswho emigrated there that the trial was as much an assessment of just deserts as itwas a search for the truth in the case in hand.136 Both jury trial and party autonomyare manifestations of the same principle, namely that the individual defendant mustbe protected against the power of a prosecuting state. In the Diplock judge-onlytrials 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 ins 101(1)(e).130. Criminal Justice Act 2003, ss 4350. Separate legislation was required to bring theseprovisions into force. In order to secure House of Lords agreement, the government undertookthat it would not be implemented without further consultation. The House of Lords blocked theFraud 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 mea-sures would neutralise the risk to the jury.133. A Fresco and F Gibb Lawyers fear more trials without jury after guilty verdict in robberyThe Times 1 April 2010. Although the Lord Chief Justice declared that the prosecution mustprove the need to protect the jury, here the prosecution burden appeared to be satisfied simplyby 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 oftenleads 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 SpecialCriminal Court 19222005 (Dublin: Four Courts Press, 2007).



THE DIMINISHING IMPORTANCE OF THE TRIAL

Transferring some aspects of control over the conduct of criminal cases from theparties to the courts is only one of a number of responses being used to reduce thepressure on resources. Recent initiatives that aim to divert suspects from formalcriminal justice procedures have led to the fear that trials are being sidelined to thedetriment of suspected criminals. In the USA such developments have led to aburgeoning academic literature in which trials are described as dead, disappearingor vanishing.138 In this country, to the alarm of the Magistrates Association, mag-istrates courts, silent and empty for lack of business,139 find themselves facing newrounds of closures.140 The criminal trial has not disappeared altogether, however. TheCrown Court caseload, far from decreasing, has significantly increased,141 but thattendency might have been more acute had it not been for the range of measuresemployed to divert defendants from a fought contest. Indeed, Kritzer observes that thenumber of guilty pleas considered for sentencing in the Crown Court rose sharplybetween 1974 and 2002, but then fell back.142 He offers no explanation of the recentreduction, but a combination of diversionary measures and discontinuances mighthold the key.

More alleged criminals are dealt with out of court than in it.143 Half of all casesbrought to justice, including up to 40,000 cases of assault, are dealt with bycautions144 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 federaland state courts (2004) 1 Journal of Empirical Legal Studies 459; R Burns The Death of theAmerican Trial (Chicago: University of Chicago Press, 2009); Hon PE Higginbotham TheDisappearing 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 asquicker and more efficient; J Hoskins What is happening to our magistrates? we must sound thealarm 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 21October 2010.141. 10% in 2009: Lord Judge CJ, above n 11. Workload predicted to rise until 2011: NationalAudit Office Administration of the Crown Court (London: TSO, 2009).142. HM Kritzer Disappearing trials? A comparative perspective (2004) 1 Journal of Empiri-cal Legal Studies 735.143. L Bridges, above n 14.144. Conditional cautions for adults under Criminal Justice Act 2003, ss 2227 were extendedto young offenders by Criminal Justice and Immigration Act 2008, s 48. The variety ofconditions was extended by the Criminal Justice Act 2003 (Conditional Cautions: FinancialPenalties) Order 2009, SI 2009/2773. An offender may now be fined and cautioned simulta-neously. The use of cautions for standard list offences for young males increased from 6% in1971 to 20% in 2006: Statistics Division, Ministry of Justice Conviction Histories of OffendersBetween 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 forantisocial behaviour, Criminal Justice and Police Act 2001, s 1. Theft and criminal damage wereadded to the list: Criminal Justice and Police Act 2001 (Amendment) and Police Reform Act2002 (Modification) Order 2004, SI 2004/2540.



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 asover-lenient.146 Diversion on this scale and of such serious offences was not foreseen;although the legislation went through conventional processes, it is unlikely thatParliamentarians anticipated the zeal and enthusiasm with which the new measureshave been employed by prosecutors and police. Fixed penalty notices (FPNs) wereintroduced in statutes that concerned offences against public order, but theft andcriminal damage were added to the list by secondary legislation, apparently with nopoint of ultra vires being raised.147 Thousands have subsequently been issued inrelation to shoplifting.148 Should a suspect refuse to accept a caution or challenge theissue of an FPN, a conventional prosecution is likely to follow where it seems that theevidence is strong enough and the elements of the crime are present. However, theremay well be cases where no challenge is made, but both police officer and suspecthave wrongly assumed that the elements of the charge were made out. It will be a raresuspect, given that the FPN does not constitute a conviction for criminal recordpurposes, that will have the time, resources, determination and information to seekadvice and consequently refuse to pay and demand a trial. Thus, both the guilt-determining function of the court and the decision on appropriate punishment are inthese not-so-minor cases effectively transferred to the executive. The lack of account-ability poses a threat to due process.149

Unlike fines consequent on conviction, fixed penalties are not linked to the abilityto 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 patentlylacks the means to pay the penalties (frequently numerous) collected, and aware thatthere 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 broughtfor an offence for which a caution still existed,151 it appears that the Crown mayprosecute for the same event someone who has already paid their fine or compliedwith the terms of their caution, as long as the prosecution is for an offence of aseparate 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 Novem-ber 2009; A Travis Jack Straw orders review of police cautions for violent offences TheGuardian 9 November 2009.147. Criminal Justice and Police Act 2001 (Amendment) and Police Reform Act 2002 (Modi-fication) 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; FGibb 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 thechanging character of crime, procedure and sanctions (2008) Crim Law and Philos 21;Edwards, above n 147; Magistrates Association Evidence to the House of Commons JusticeCommittee Ninth Report: The Crown Prosecution Sevice Gatekeeper of the Criminal JusticeSystem (London: House of Commons, 2009) at [50]; H Siddique Magistrates warn police couldmisuse 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 Penaltiesfor 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.



have been rejected.152 The prospect of someone being punished twice for the samebehaviour raises the question of whether suspects in fact have a right to a trial toprevent that from happening; the principle of double jeopardy applies to full trials. Itseems beyond argument that individuals are entitled to an opportunity to offer anaccount of themselves before punishment is meted out. Although these suspects areentitled to demand a trial rather than accept the penalty, it is unlikely they will havemuch opportunity to make an informed assessment of whether that would be in theirinterests. At the very least, and despite the fact that no conviction ensues where thepenalty is accepted, the opportunity to access legal advice should be provided beforeany fine is imposed.

Clearly there are offenders for whom cautions or fixed penalties serve a usefulfunction in giving them the opportunity to reform, a project that may be moresuccessful if they are kept out of the penal system. But the importance of formalstructures within the criminal justice system cannot be underestimated. For example,the new power to attach relatively restrictive conditions, such as curfew, to police bailand street bail153 pre-charge154 is no incentive to police officers to complete theirinquiries quickly. Yet the procedures to be followed on arrest, review of detention,charge and court appearance mean that those who find themselves accused of crimesand thus suddenly at the mercy of a massive state apparatus must at least be presentedfor inspection at specified intervals. These contact points are essential to ensure thatsuspects are treated humanely, and are aware of the case against them and of theconsequences of any decisions they make. They keep the system fair and reassure thepublic that it is fair. There is little respect for the dignity of the individual in a systemthat buries its suspected criminals in bureaucratic processes which are not redeemedto any extent by the kind of hierarchical inspection Damaka observed in the systemsof 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 accom-panied by attempts to reduce levels of adjudication155 is far from oppressive of thesuspect, but suggests that managerial approaches may undermine the purposes of thesystem insofar as they could prevent the guilty from receiving their deserts. Forexample, the police and Criminal Bar Association have expressed suspicion of under-charging by the CPS in order to meet targets.156 Also, it seems that in some contextsthe gathering of evidence is redefined as bureaucracy; there has been a successionof initiatives to reduce police administrative loads by reducing the amount of paper-work associated with the prosecution file (or eradicating file overbuild).157 Thesehave culminated in the Streamlined Guidance issued in relation to summary trials bythe 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: EffectiveUse 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.



person is likely to plead guilty, the police are required to supply to the CPS a highlytruncated case summary rather than the usual collection of witness statements.However, there are numerous cases where the admission has been over-optimisticallyanticipated and is not in fact forthcoming.159 There, prosecutors find themselves withinsufficient information in the documentation to allow them to conduct the prosecu-tion. The choice is then either to ask the police to do further work on the case, or, lessproblematically, to drop it.160 It is inimical to either an adversarial or an inquisitorialsystem to regard the gathering of evidence and the taking of statements as unnecessarydistractions, as appears to be the case to some agents of the criminal justice system,161but may be an indicator of a system that subordinates both due process rights and justdeserts 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 asystem under pressure. It is becoming clear that the earlier pleas are entered, the morecourts will reward defendants. The criminal justice system must do all it can toencourage those who are guilty to plead at the earliest opportunity.163 The Plea andCase Management Hearing Advocates Questionnaire164 requires counsel to stipulatewhether the defendant has been advised of the sentencing discount for guilty pleas.165The court will expect this to have been done; some judges express themselves inrobust terms if a defendant has not pleaded in a case they consider hopeless.166 Goingfurther, the Chair of the Sentencing Council has recently suggested that greaterdiscount should be given where admissions are made during police interview,167 asuggestion which may well be implemented despite the concern in some quarters thatit 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) 31Monash L Rev 12 at 18.163. The criminal justice system must do all it can to encourage those who are guilty to pleadat the earliest opportunity: Lord Judge CJ, above n 11, at [2.8]; Sir Robin Auld favoured judgesbeing 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 defenceasks for such an indication, The court retains an unfettered discretion to refuse to give it or topostpone 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 takeaccount 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 TheTimes 3 June 2010, quoting Leveson LJ.168. S Coates and R Ford Time off for early guilty pleas The Times 24 April 2010.



but of party control of procedure. Nevertheless, since the defendants decision mayhave crucial effect on the outcome of the criminal proceedings, negotiations mustaccord with fair trial principles. Currently, procedures on arrest are such that theycannot. The police have no obligation to disclose all the facts in their possession toarrested suspects or their legal advisors; consequently some suspects inevitablyadopt a policy of reserving their position until they know what the case against themis. Under the EC, equality of arms is also a fair trial right and means in this contextnot equality of resource but that accused persons must have weapons of defenceproportionate to the coercive nature of the process, and thus a reasonable opportu-nity to present their case in conditions that do not place them at a substantial dis-advantage vis--vis the opponent.169 The Conventions fair trial provisions apply topre-trial processes including police investigations.170 A system that adopts a policyof allowing greater sentencing leniency the earlier a plea is entered is therefore atrisk of compromising due process unless full and accurate disclosure is made;defendants must have at their disposal all relevant information in the hands of thepolice,171 and so the problem of non-disclosure on arrest would have to be addressedbefore a scheme effectively penalising wait and see suspects could legitimately beimplemented.

Yet, just as the police interview stage of the investigation increases in significanceand formality,172 legal advice on both sides may be flawed or absent. Where an accusedhas insufficient information or expertise to make a wise decision, his or her partici-pation in their own defence is a cruel illusion. Rash admissions later withdrawn by adefendant who elects for trial can be used to discredit them by means of cross-examination on inconsistencies. There will be cases where neither police officers northeir suspect know the definitions of the offences in question, and the closer relation-ships between police and prosecutors, following the Glidewell recommendations,173may be about to be reversed.174 Also, it seems that suspects at police stations are lessable than before to access legal advice; even the privately funded must now firstcontact the Duty Solicitor Call Centre. On request a named solicitor will be contactedon the suspects behalf, but their lawyer then has to call back the police station custodysuite and hope that someone answers the telephone before the client gives up andembarks on the interview without seeing them.175 In the case of those requiring freelegal 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; Foucherv 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 bySupreme Court in Cadder v HMA [2010] UKSC 43.172. Edwards, above n 147; J Jackson Silence and proof: extending the boundaries of criminalproceedings in the United Kingdom (2001) 5 E & P 145.173. Rt Hon Sir Ian Glidewell Review of the Crown Prosecution Service Cm 3972, 1998 at9.34.174. 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 informationabout 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: Flyingin the Face of the Evidence (London: Centre for Crime and Criminal Justice Studies,2008).



telephone is deemed sufficient176 and arrange for that, or, otherwise, instruct a dutysolicitor. Problems with such calls being overheard suggest breaches of the ECHR,177but under current budget constraints it is highly conceivable that the telephone advice-only category of case will be extended.Yet it is far from clear that cuts to legal aid savemoney. It has been argued that absent an independent advisor to point out the strengthof the police case, some suspects maintain denial or silence until they acquire repre-sentation and their predicament is explained to them; this may mean a late change ofplea, involving considerable cost and inconvenience to the system.178 Early legaladvice will in clear cases lead to a guilty plea,179 making the non-funding of defencelawyers at the investigatory stage a false economy. Trials involving defendants inperson generally take longer,180 as even the Ministry of Justice recognises.181 Hencelegal aid provision serves the interests of efficiency and due process simultaneously.

The same rights to full disclosure and legal advice apply to negotiations with theCPS later on in the investigation process. The US Supreme Court considers thatessenti

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