The adversarial defence lawyer: Myths,disclosure and efficiency—A contemporary analysis of the role in the era of the Criminal Procedure Rules

A brief history of defence disclosure

The disclosure regime is a relatively recent creation and until the mid-1990s disclosure was generally an obligation for the prosecution to discharge, save in instance of alibi and expert evidence. ⁴ The regime of prosecution disclosure was viewed as a mechanism to address the inequality of arms between the prosecution and the defence. As the prosecution was state-funded, they should have to disclose facts of their case to the defence, as there is a clear imbalance of resource between the two. R v Bryant and Dickson ⁵ is commonly regarded as the start of the process in which the courts begin impose a duty on the prosecution to disclose material that may lead to the acquittal of the accused (Corker and Parkinson, 2010: 3). The case established an obligation on the prosecution to make available to the defence witnesses whom the prosecution knew could give material evidence. The rule in Bryant and Dickson was extended further by Dallison v Caffery. ⁶ In Lord Justice Denning’s words:

if he [the prosecutor] knows of a credible witness who can speak [of] material facts which tends to show the prisoner to be innocent, he must either call that witness themselves or make the statement available…it would be highly reprehensible to conceal…the evidence which such a witness can give. ⁷

In 1981, the ‘first attempt by the government, without recourse to statute, to comprehensively improve and overhaul the disclosure system’ ¹⁰ was made. The guidelines created a set of criteria for determining what should and should not be disclosed and established the notion of disclosing ‘unused material’, which was defined as:

witness statements and documents not included in the committal bundle;

In 1986, the Fraud Trials Committee published their report (hereafter, the ‘Roskill Committee’), Lord Roskill chairing the report. The findings of the Committee led to the second major development in the area of defence disclosure. The Committee was established because, it was said, the public no longer believed the legal system was capable of bringing the perpetrators of serious frauds to book (Roskill, 1986: 1 at para. 1). The Committee found that the legal system was too archaic, cumbersome and unreliable. Every stage of the legal process was an ‘open invitation to blatant delay and abuse’ (Roskill, 1986: 1 at para. 1). Owing to this blatant abuse the Committee stated in its summary that radical reform was necessary. Although the terms of reference for the report related to fraud trials, the Committee argued that the changes could ‘be of benefit to a wider range of criminal cases’. ¹² The Committee believed that forcing the defence to outline its case in advance of trial would make the trial both ‘shorter and more efficient’. Furthermore, this would make the trial clearer for the jury, if they were told at the outset what part of the prosecution’s case the defence intended to challenge. Requiring the defence to disclose a case outline would reduce the risk of fabricated defences; the prosecution would be able to investigate in advance any defence claims that required investigation (Roskill, 1986: 103 at para. 6.72). However, the Committee admitted that they had been unable to empirically test the truth of the assertion that the jury’s understanding of the case is impaired where it is not clear at the outset what the case may be.

The Committee considered a number of objections to the proposal. First, it accepted that the main objection was that the proposal was an infringement of a fundamental principle of our criminal law; that the burden of proof rests with the prosecution. A further objection to the proposal was the lack of an effective sanction against a defendant who fails to comply with the provisions. To alleviate any fear that a defence disclosure regime would weaken the burden of the proof, the Commission stated:

The prosecution would still have to prepare their case fully…including making early disclosure of their evidence…we recognise that the burden of proof would be affected if the prosecution were allowed to alter the nature of their case once the defence had been disclosed. To avoid this possibility, any proposal would therefore have to involve the prosecution’s case being ‘fixed’ before the defence could show his hand. If the prosecution sought to change their ground…to overwhelm the case put forward by the defence, the judge might well be justified in intervening to stop the case altogether or, if it were not too late, to ensure that the prosecution adhered to the original case. (Roskill, 1986: 104 at para. 6.75)

The provisions of the 1980s were dramatically enhanced during the mid-1990s, the defence disclosure regime was radically overhauled by the Criminal Procedure and Investigations Act 1996. The provisions compelled the defendant to disclose aspects of his defence for indictable-only cases. ¹⁵ The content of the defence statement was defined by s. 5(6). It is a written statement:

At the time Hannah Quirk suggested the disclosure provisions were unworkable as the provisions were flawed due to three fundamental reasons: (1) the lack of understanding of the role and culture of each of the participants, (2) the inadequate allocation of responsibility and (3) the insufficient sanctions for non-compliance with the rules that can be imposed fairly on defendants. ¹⁶ Defence statements contained often minuscule amounts of information and were generally as vague as possible; they often served as nothing more than a denial of the charge. For example, a defence statement completed by the defence in answer to a charge of handling a stolen motor vehicle, offered the following response: ‘the accused denies that he dishonestly received the vehicle and that he knew or believed that the same was stolen’ (Taylor, 2001: 114, 117). The vagueness of this statement could potentially leave the door open for the defence to spring an ambush defence at trial. ¹⁷ In a study for the RCCJ, which acted as a catalyst for the CPIA, Roger Leng suggested that the threat of ambush defences was ‘the single most powerful factor in the campaign to abolish the right to silence and to require the early disclosure of the defence case’ (1995: 706). Yet, as Leng’s study for the RCCJ suggested, the idea that disclosure was needed to combat ‘ambush defences’ ¹⁸ was misplaced (Taylor, 2001: 114, 117). The price for springing the ambush was that the defence may miss crucial material not being disclosed at the second stage of prosecution disclosure. The statement does not indicate any particular defence that the accused will rely on and therefore leaves the prosecution without any suitable guidance as to what material would be of use to the defence.

Quirk further suggested that the notion of defence disclosure and the idea of rebalancing the system fitted neatly with the philosophy of managerialism (Quirk, 2006: 56) and the early disclosure of the defence case would combat the use of an ‘ambush defence’ ¹⁹ which could frustrate the interests of justice. However, in reality, the defence was not problematic for the courts, Leng’s study for the RCCJ found that ambush defences were raised in 2–5 per cent of trials; all of which ended in the conviction of the defendant (Leng, 1995: 706). Leng also cites the work of Block, Corbett and Peay, who observed 100 trials and did not find one single use of an ambush defence (1995: 706). However, Zander and Henderson’s study found ambush defences were raised in 7–10 per cent of trials and half of these ended in a conviction (Zander and Henderson, 1993: 14–15). Redmayne suggested that the creation of the defence disclosure regime ‘forms part of the shift towards a criminal justice system whose prime concerns are efficiency and managerialism’ (Redmayne, 1997: 93). Ultimately, these encroachments to adversarialism were a continuation of a toxic political atmosphere concerning due process rights of the defendant. It is important to note that this evolution did not occur in a vacuum and a number of other changes to criminal procedure occurred in the 1980s and 1990s. The genesis of change can be traced to the Commission reporting in 1981. The Commission was established in the wake of a number of miscarriages of justice that blighted the criminal justice landscape in the late 1970s (see Home Office, 1977). The Commission rejected any notion that there should be any curtailment of current provision of the right to silence at both the pre-trial and trial stage. In fact, the Commission re-emphasised the importance of the advanced disclosure being made to the accused as ‘it might put strong psychological pressure on some suspects to answer questions without knowing precisely what was…the evidence against them…’ (Home Office, 1977: para. 4.50). In fact, the Commission appeared to enhance the due process rights of the accused and the recommended proposals that established PACE 1984. Quirk suggests that the Act was ‘momentous’ and codified both parties’ rights in relation to stop and search, arrest, detention, questioning and charge (Quirk, 2017: 36).

Then the 1990s saw a succession of successful appeals on the basis of false confessions. ²⁰ These cases ‘exposed a catalogue of wrongdoing in the process of…criminal investigation’ (Quirk, 2017: 40). In response, the government established the Royal Commission on Criminal Justice (RCCJ) to examine potential reforms to the criminal justice process. Quirk suggests that although the Conservative Party of the early 1990s had won a fourth successive General Election, they were in fact, rather unpopular (Quirk, 2017: 43). As such, a governmental notion of ‘law and order’ had begun to counter the rising concerns about crime. The then Home Secretary, Michael Howard, suggested at the 1993 Conservative Party conference that ‘the right to silence will be abolished. The innocent have nothing to fear’ (Travers, 1993: 44). This conflation of guilt and silence was endemic in both the crime control policies and political atmosphere of the time and something that allowed the creation of the defence disclosure regime and breeding ground for the CrimPR.

The rise of the ‘new regime’

Through the Police and Criminal Evidence Act, the late 1980s afford the suspect greater protections in the criminal justice system and the 1990s tried to reign in these protections. This continued into the 21st century which saw the acceleration of the of the managerialist regime. ²¹ In his Review of the Criminal Courts of England and Wales (Auld, 2001, hereafter ‘the Auld Review’), Auld LJ said: ‘…fairness, efficiency and effectiveness of the criminal justice system demand that its procedure should be simple, accessible and, so far as is practicable the same for every type of criminal jurisdiction’ (Auld, 2001: ch. 10, para. 271) He commented that the 1996 Act ‘was not working as Parliament intended and its operation did not command the confidence of criminal practitioners’. ²² Auld also argued that there was a high level of non-compliance by the defence in its duty of completing an adequate defence statement; this non-compliance was a major deficiency in the disclosure provisions and he believed that the current three-stage disclosure process was both ‘logical and fair’ (Auld, 2001: 466, para. 171).

In keeping with the recommendation of the Auld Review, the Criminal Procedure Rules Committee was established ‘to create a single and simply expressed instrument’ (Auld, 2001: 472, para. 184) that codifies criminal procedure. The Rules would govern the practice and procedure to be followed in the Criminal Division of the Court of Appeal, the Crown Court and for criminal proceedings in magistrates’ courts. Furthermore, the Committee is responsible for the development of the necessary procedures to bring about the closer alignment of the criminal courts (Department for Constitutional Affairs, 2010). The Rules were created under the authority of s. 69 of the Courts Act 2003 and the Act explicitly states that they should secure that ‘the criminal justice system is accessible, fair and efficient and the rules are simple and simply expressed’. ²³ Rule 1.1 explicitly states that the overriding objective of the new code is that criminal cases should be dealt with justly. Rule 1.1(2) provides a non-exhaustive list of what ‘justly’ means.

To assist the courts in satisfying the overriding objective, Part III of the CrimPR created the case management provisions, which obligate all actors in the process to help fulfil the overriding objective. Whilst the case management provisions are nothing new to the court, the impact has transformed the role of the judiciary. Prior to the creation of the CrimPR were generally perceived as passive, neutral umpires (see Johnston, 2016a). However, that it is no longer the case, the judiciary is an active participant in proceedings. The shroud of passivity would be shed with the dawn of the new millennium. In Jisl ²⁴ Judge LJ highlighted the importance of having an active and interventionist judge. Talking about the starting point for any criminal case he stated:

The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. 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, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. Resources are limited…time itself is a resource.

What is the ‘adversarial defence lawyer’ and did they ever exist?

Before investigating whether the ‘clever technical lawyer’ is indeed dead it is worth establishing a theoretical conception of what the defence lawyer’s role is. The role can be seen to operate on three interwoven levels: first, he is the mouthpiece of his client; secondly he is an officer of the court; and finally he acts as a zealous protector of the rights of his client (Blake and Ashworth, 2004: 167). Despite being charged with advancing his client’s case, the defence lawyer’s obligation to his client is, at times, tempered by obligations owed to other parties in the criminal justice process; this notion was expressed by Lord Reid in the case of Rondel v Worsley: ²⁸

…Counsel has a duty to fearlessly raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But as an officer of the court concerned with the administration of justice, he has an overriding duty to the court, to the standards of his profession and to the public, which may and often lead to a conflict with his client’s wishes… ²⁹

Newman followed the work of McConville et al. by categorising different titles for different firms. He used the terms ‘radical’ and ‘sausage factory’. A radical firm is a ‘dying breed of lawyers who devote themselves to their clients’ (McConville et al., 1994: 30). The ‘sausage factory’ is an example of an emergent thread that places profits before clients. The sausage factory is the antithesis of the radical firm (McConville et al., 1994: 30). This firm is more associated with the notion of a passive defence. Newman uses the title ‘sausage factory’ because in the food industry the factories are presumed to reduce diverse raw materials into uniform, easy to manage and cheap products. The study was less concerned with how firms work, but with the values, attitudes and perceptions held by the individual lawyers within the firms. This study only examined what the lawyers said—no observations were undertaken in this particular study. There is a distinct disadvantage in only interviewing lawyers, as Newman realised when he uncovered significant differences in formal interviews when compared with observational research. He found that lawyers would espouse the view that they stood for active defence and therefore fitted into the ‘radical’ category but that they appeared to practice something far more passive and akin to the ‘sausage factory’ (Newman, 2013: 147).

Whilst this study should be mindful of participants providing answers they do not necessarily practice, the findings nevertheless hold value, as they present data on how defence lawyers perceive their own role in the modern era of criminal defence work. However, this study suggested that defence lawyers frequently did speak of themselves in terms of being an adversarial protector of defence rights, but these views were often tempered by the competing obligations in the case management era of the modern criminal trial.

However, despite studies suggesting that the adversarial defence lawyer did not exist in practice, the importance of the role, at least in academic literature is clear. Steinberg suggests that the lawyer needs to be zealous as this benefits society—the victim, the judge, the defendant, witnesses, juror or disinterested bystander—because any one of them can switch roles and become a future defendant (Steinberg, 1960). However, as suggested above, the work of McConville et al. suggested that defence lawyers who treated their clients with disdain offered poor-quality services.

The impact of the introduction of case management forms on the work and role of the defence lawyer

The small empirical study was designed to analyse how practising defence lawyers view themselves and their role in criminal process. As this paper established, the theoretical conception suggested that the lawyer was zealously adversarial in their pursuit of advancing the best interest of their client. However, empirical work in the early 1990s and the early part of the new millennium painted the lawyer in a rather disappointing light. They were not in fact adversarial and often viewed their clients with disdain. This study attempted to analyse if the lawyers were adversarial in terms of prioritising the best interest of the client over other competing obligations.

It was clear from the interviews was the fact that the ‘clever, technical lawyer’ was not actually dead. In order to complete their case management obligations, lawyers would frequently take a tactical or technical approach, which provided enough detail to the court but tactically, did not reveal their hand completely:

I will not disclose his defence…the form is completed in minimal detail. But completing the form causes difficulties because we are working from a skeleton. The response is very basic, not very detailed. [011] (Partner, 19 years’ experience)

Active case management and early guilty pleas

This constant drive for efficiency creates tensions for the lawyers. Some lawyers stated that they feel it is difficult to provide adequate legal advice as a plea has to be entered and the case fully managed at the first hearing, irrespective of prosecution disclosure or access to legal advice. The CrimPR dictates that the advocates must assist the court with their Active Case Management responsibilities, ⁴⁴ and the circumvention of the voluntary nature of the Defence Case Statement (via the Case Management Forms) is analogous to the CPIA 1996 provisions.

These requirements are further assisted by the shift in judicial culture. In the Chorley Justices ⁴⁵ case Thomas LJ indicated that if the ‘defendant refuses to identify what the issues are…he can derive no advantage from that or seek…to attempt an ambush at trial. The days of ambushing and taking last minute technical defences are gone’. In order to assist the court with its active case management, both sides have to complete a Case Management Form, which includes, inter alia, the identification of the real issues, and which enables the monitoring and progressing of the case. In 2015 it was found that there was ‘undoubted room for improvement’ (Gross, 2011: 6) in the sphere of case management. Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings (Leveson, 2015) found that all parties needed to work to ‘identify the issues so as to ensure that court time is deployed to maximum effectiveness and efficiency’ (Leveson, 2015: 12). With this Review the goals of efficiency and effectiveness were further consolidated with the genesis of the Better Case Management Initiative (hereafter, ‘BCM’) (Courts and Tribunals Judiciary, 2015a), which links a number of initiatives aimed to increase the efficiency with which cases are processed through the criminal justice system. The overarching aims of BCM are as follows:

robust case management;

On the first anniversary of the initiatives implementation the Judiciary of England and Wales suggested the programme had been a success, with ‘data showing some positive indications, such as a reduction of hearings prior to disposal’ (Courts and Tribunals Judiciary, 2016). To further assist in fulfilling these goals, BCM introduced a new case management initiative, the uniform Early Guilty Plea Scheme. The CPS state that obtaining a guilty plea at the earliest opportunity has ‘huge advantages’ (Crown Prosecution Service, 2016), one being efficiency, as the police, court and prosecution will make economic savings. There is a benefit to a defendant entering an early guilty plea—should they do so, they will be entitled to a sentence discount. ⁴⁶ The concept of the Early Guilty Plea Scheme is not, in itself, an offensive one. Where a case is straightforward, a defendant accepts their guilt and the evidence is substantial and undisputed, it seems justifiable to encourage a guilty plea at the initial stages; so long as the circumstances of the defendant do not negate his free and informed choice. In circumstances where these conditions are not met, the scheme poses problems. The scheme states that the discount are not a reward but an incentive, but this is arguably a matter of semantics rather than substance (see Johnston, 2016b). In reality, a defendant may view the discount as neither a reward for ‘doing the right thing’ nor an incentive to assist those prosecuting them. However, it could be viewed as a temptation to reduce the risk of conviction for an offence the defendant has not committed or an inducement to sacrifice their legitimate fair trial rights. Rights such as the privilege against self-incrimination and the fact it is the duty of the prosecution to discharge the burden of proof.

There is a clear problem between insufficient disclosure and the pressure to enter a plea at the earliest opportunity. Some lawyers interviewed expressed great dismay about entering a plea and disclosing the real issues at the earliest opportunity, whilst not necessarily knowing what evidence was already in the possession of the prosecution. ⁴⁷ Often the lawyers would only be meeting their client on the morning of trial and they sometimes had to complete the Case Management Forms within 20 or 30 minutes of meeting the defendant. A difficulty emerges because of the potential loss of sentence discount for a guilty plea. McEwan states that prosecution evidence is frequently not available at the first instance (McEwan, 2013: 216). In Lawyer 002’s words:

A fundamental problem with these forms is that you are expected to fill them in on the first occasion which is often when you have been given the evidence for the first time and had an opportunity to speak to the client for the first time. You are in court; it is not the appropriate environment so solicitors should be saying ‘I want an adjournment; I don’t want to deal with case management issues today’ but the courts don’t really allow that. So, the solicitor then has to decide—am I going to push ahead anyway notwithstanding and make sure I get it right or am I going to advise the client that I don’t feel in a position to properly represent you today and withdraw from the case. [021] (Solicitor, 12 years’ experience).

Furthermore, any guilty plea should be grounded in sound legal advice based on the weight of evidence the prosecution holds. However, the interviews point out that pre-trial disclosure by the CPS is often inadequate in practice and this poses great difficulty for defence lawyers. All 24 lawyers commented that the prosecution does not adhere to the disclosure regime and is effectively left unchecked. In contrast, when the defence does not adhere to the regime, the defendants and their lawyer are frequently threatened with sanction by the court. This disparity in treatment is rather concerning and has serious consequences. One may legitimately ask why the defence are consistently threatened with the stick and the prosecution are not given the same treatment. At present, there is little regulation of disclosure prior to the first hearing and this lack of regulation is important as it is the only point at which a defendant would be eligible for the maximum discount. The prosecution is only required to disclose Initial Details of the Prosecution Case (IDPC) if the defence requests it (Rule 8.2(2)). The scope of this disclosure is narrow (particularly for defendants brought to court in custody): prosecutors are mandated to share details of circumstances of the offence and the criminal record of the defendant, and little else. This poses a very serious question: how are defence lawyers expected to give sound legal advice as to plea when they are only advising on a partial picture of the evidence?

If entering an early guilty plea falls under ‘robust case management’, it is difficult to see a lawyer being able to adequately advise on plea with such little information. Arguably, the overriding objective could be viewed as a management tool in a system that assumes guilt and wants to process guilty cases. The assumption of guilt is something that is deeply non-adversarial and if the assumption is true, it reduces the due process protections of the adversarial process. Traditional theory holds that the truth emerges where two sides present their own version of events and are pitted against each other on equal terms (Jackson, 1991). However, in the 21st century there is a distinct lack of a level footing. Disclosure was designed to even out the equality of arms between the prosecution and defence. By completing the Case Management Forms, there is an inherent danger of making an incriminating admission which the prosecution could try and use against the defendant. ⁴⁹ Lord Sankey classed the presumption of innocence as the golden thread; it is one that is unbreakable, ⁵⁰ perhaps the pursuit of efficiency has broken this.

Pressure to enter a guilty plea

The disclosure has attempted to make trials more efficient, if each side knows the arguments of the other, there should be a less of a time-consuming battle. However, the process has attempted to become even more swift by reducing the number of cases that get to the trial stage by offering inducements to plead guilty at the earliest possible stage. The Sentencing Council offered guidance that the maximum sentence discount for an early guilty plea would be one-third off the defendant’s sentence (Sentencing Council, 2017: 5). There are, however, stark dangers in being pressured to enter a guilty plea are stark and were demonstrated in the case of R (on the application of the DPP) v Leicester Magistrates’ Court. ⁵¹ The claimant applied for judicial review to re-open his conviction for common assault. The offence had allegedly been committed against a 14-year-old boy, in the care of the defendant as an agency worker in a care home. At his first appearance in court, he intended to enter a not guilty plea on the basis of self-defence. However, he changed this on the first day of his trial. He asserted that his solicitor had pressured them into entering an early guilty plea; he was convicted, and, as a result, was no longer able to find work in the social care sector. Whilst the magistrates’ court can make an order to re-open a conviction when it is in the interests of justice (under s. 142, Magistrates’ Courts Act 1980) it can only be exercised where there has been a mistake or a situation akin to a mistake. A subsequent change of heart or regret at entering a guilty plea will not suffice as a mistake and as such the defendant’s conviction was confirmed. This is arguably a matter of interpretation. One could feasibly argue that ‘regret’ over changing a plea due to inappropriate pressure from lawyers is tantamount to a mistake. Clearly, the defendant’s first inclination was to plead not guilty, but he was persuaded to plead otherwise. In the same way that false confessions are subsequently considered to be mistaken when extracted under police pressure, there seems no logical reason why a ‘change of heart’ about a guilty plea in such circumstances should be considered any differently. In contrast, where a defendant pleads guilty and has a vague or ill-defined ‘regret’ based on nothing more than the desire to avoid conviction, it seems more reasonable to prevent the overturning of convictions.

Newman painted a rather bleak picture of what he witnessed in terms of lawyer-client interactions (Newman, 2013: 30). In fact, most lawyers whom he observed held a presumption of guilt in respect of their clients; the lawyer ‘assumed’ the client would enter a plea of guilty and the lawyer helped facilitate such a plea (Newman, 2013: 112), even when the client wanted to enter a not guilty plea. ⁵² None of the participants interviewed for this study suggested that they would pressurise a client to enter a plea which suited their own needs for quick pleas. However, Leicester Magistrates’ Court ⁵³ suggests that undue pressure may not only come from the judiciary but from the client’s own lawyer.

The Legal Aid cuts and the pressure to plead guilty

As illustrated in the Leicester Magistrates’ Court case above, the pressure to enter an early guilty plea may not only come from the court and the CrimPR but also from the client’s own lawyer. It is well known that the Legal Aid budget has seen a number of drastic cuts over the last 30 years. In short, the fees paid to Legal Aid lawyers have been frozen for decades and successive governments have attempted to reduce the cost of the Legal Aid budget through a number of cuts and reforms. Legal Aid remuneration is so poor that lawyers are criminal lawyers have voted to strike in a protest against low-fees. The Guardian reports that some lawyers are paid as a little as £46.50 for a day in court (Bowcott, 2019). The Criminal Bar Association of England and Wales are looking to raise the minimum fee from £46.50 to £100.00 and to increase the fees for examining evidence released through disclosure. With such low fees available for work, it is hardly surprising that some lawyers might help facilitate an early guilty plea from the client.

Active case management and an early guilty plea stands at odds to the due process nature of the adversarial criminal procedure, coupled with the low fees of defence representation, it is no surprise to see cases dealt with an expediated manner. However, the speed which cases are dealt with sits at odds with traditional adversarial systems, which are focused on the protecting the fair trial rights of the defendant (McEwan, 2011: 520). The goal of active case management and the guilty plea is to undoubtedly increase the efficiency of the criminal process. In Herbert Packer’s Due Process Model (DPM), a central component of the adversary process is the accused’s opportunity to have ‘his day in court’, should he elect to do so and have the evidence against them tested by his defence lawyer (Packer, 1968: 157). The model looks much like an obstacle course with each successive stage designed to present formidable impediments to carrying the accused any further through the process (Packer, 1968: 163). Packer’s opposing model, the Crime Control Model (CCM), is almost managerial in nature. The metaphor used by Packer was a conveyor belt, moving an endless stream of cases smoothly through the system, never stopping. Traditional trial elements such as cross-examination have no real value in this model; facts are more easily established at the police station and the procedures followed need to be uniform. Furthermore, the earlier a case can be disposed of, the better (Packer, 1968: 163). Arguably, the case management and guilty plea system reflects the conveyor belt approach suggested by Packer and encourages the defendant to forgo ‘his day in court’.

Disclosure failings: Inadequate sanctions for the prosecution

The pressure to enter a plea is often given in circumstances where the defence lawyer is not in full possession of the relevant evidence and so timely disclosure by the prosecution would vastly improve the legal advice offered by the defence. However, there is no suitable stick that the court can level at the prosecution, should they fail to disclose evidence in a timely manner.

In contrast, should the defence fail to comply with the disclosure provisions under the CPIA 1996, the court is permitted to make adverse comment and/or to draw adverse inferences. Section 39 CJA 2003 inserted an amended s. 11 into the CPIA 1996. The statutory sanction available to the court for disclosure faults is that of drawing inferences. Should the accused fail to provide the defence statement, ⁵⁴ provides one outside the prescribed time limits, ⁵⁵ fails to give any updated version of the statement required by s. 6B of the CPIA 1996, ⁵⁶ gives the updated statement outside of the prescribed time period ⁵⁷ or sets out inconsistent defences in his statement, then the court will make such comment that appears appropriate, ⁵⁸ or the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned. ⁵⁹

Whilst the inadequacy of judicial sanctions has been well debated. Auld LJ noted the problem of creating an enforcement mechanism for compliance with case management orders or other procedural orders. Auld stated that ‘[He had] anxiously searched here [in England and Wales] and abroad for just and efficient sanctions and incentives to encourage better preparation for trial…we are not alone in this search and that, as to sanctions at any rate, it is largely in vain’ (Auld, 2017: para. 231), It appears clear that the court does have the power to sanction defence failings. Rule 3.5(2) states that should a party fail to comply with a rule of direction, the court may fix, postpone, bring forward, extend, cancel or adjourn a hearing. ⁶⁰ The court has the power to make a costs order ⁶¹ or the court can impose any sanction as may be appropriate. ⁶² The final provision appears to give the court a great deal of latitude in administering and ensuring an effective enforcement mechanism. However, with no statutory weight behind the rules, it is difficult to envisage anything other than the court administering a financial penalty in respect of costs being ordered. This sanction was the one that concerned the majority of lawyers in the study:

The threat of wasted costs hangs over everything. Just very much the fact that if you get something wrong at the early stage and your client says, why can’t that evidence go in and it is because you have cocked up early on, I think the worry that you are going to have to apply for an adjournment and might be refused or an application might be refused does play on my mind actually at the case management stage. [003] (Solicitor, 7 years’ experience).

There are a number of enforcement mechanisms that are available to the court. However, their application is fraught with difficulty. A direction to draw adverse comment for breaching the disclosure provisions only affects the defendant and at times the defence lawyer may have difficulty in obtaining instructions from his/her client. Furthermore, Denyer indicates that courts are unlikely to allow adverse comment for late disclosure unless it was ‘very very late indeed’ (Denyer, 2009: 343). Furthermore, it is not appropriate to draw inferences should the fault lie with the lawyer. Costs orders against the defendant are unlikely: first, owing to his lack of means; secondly, as Auld LJ stated, it is difficult to establish who was at fault. Wasted costs could be imposed on the lawyer, but again the difficulty is found in establishing who was at fault. The courts could refuse to grant an adjournment or allow certain evidence to be adduced. These provisions would surely undermine the overriding objective of dealing with cases justly. However, in terms of issuing wasted costs against the prosecution, the notion is rather unlikely as it will be a case of simply moving money from one public purse to another.

However, the need for an adequate sanction for prosecution failings is stark. The Justice Gap reports that the number of rape prosecutions in England and Wales that has collapsed because of a failure by the prosecution and police to disclose evidence has risen by 70 per cent in the last two years (McRae, 2018). However, no evidence exists regarding what sanctions, if any, the court make against the prosecution, should the case not collapse. Furthermore, should the prosecution fail to comply with its disclosure obligations, the case may not automatically be stayed. In Salt ⁶³ the court suggested that despite the ‘reprehensible conduct of the CPS and police’, the gravity of the charges were so severe that there was a strong public interest in the offences being tried; despite the untimely disclosure, a fair trial was still possible. Further, R v R ⁶⁴ suggests that any untimely disclosure could be remedied by a reduction at the sentencing stage rather than allowing a stay. The approach adopted by the court in both Salt and R suggests that a stay of proceedings will be the absolute last resort and the court will tolerate failures unless they are so untoward that they render the process unfair.

In light of the collapsed Allan case (Metropolitan Police and CPS, 2018), the Metropolitan Police made a series of recommendations in order to counter any future miscarriage of justices. The force suggested it was ‘unfortunate that one prosecutor had the responsibility for this case…’ (Metropolitan Police and CPS, 2018: 6) and suggested that a ‘Disclosure Champion’ should be appointed for ‘Complex Casework’ (Metropolitan Police and CPS, 2018: 7). After an analysis of the available sanctions, it appears there is not one ‘fix-all’ sanction that the court can apply and therein lies the difficulty faced by the courts and points that reform is urgently required as the aforementioned sanctions only relate to defence failings with the disclosure regime, there are no appropriate sanctions to prosecutorial failures and the recent collapsed cases of Liam Allan, Isaac Itiary, Samson Makele and Oliver Mears (Metropolitan Police and CPS, 2018) suggest that prosecution failure may not be rare. However, as highlighted above, there is a distinct need for an adequate sanction for disclosure failings, although a suitable one is yet to be identified.

The role(s) of the defence lawyer in the CrimPR Era

This article has charted the fundamental change in the pre-trial process. The adversarial environment has been replaced with an environment of cooperation, where the defence discloses a vast array of information in advance of trial and effectively show their cards to the prosecution, which, to some extent, has better cards as it is difficult to force them to disclose information in a timely manner. McConville and Marsh argue that lawyers have misread the extent to which their duty to the client has been overridden in the cause of efficient court administration (McConville and Marsh, 2015). This misreading has led to a fundamental departure from adversarial values and has given rise to lawyers who either (a) claim to be adversarial but illustrate elements of conflict, or (b) prioritise the managerial goals of the CrimPR ahead of their client’s interest. This contention is supported by the small study conducted for this paper. The study found that there has been a distinct change in adversarial culture. This culture shift has the potential to impact on the role of the defence lawyer; a thematic coding of the empirical research gave rise to three types of criminal defence lawyer that practice in the post-CrimPR era:

the Classic Adversarial Lawyer (4/24 participants);

The Classic Adversarial Lawyer is a lawyer who is fundamentally clear on which obligations compete for priority. He is single-minded and believes that the duty to the client is prioritised over any other duty. In this empirical study, only 4 of the 24 interviewed lawyers could be described as coming within this category. Lawyer 007 [Senior Partner, 21 years’ experience] was an example of the Classic category and was steadfast in explaining his duties: ‘I’ll ignore what it says in the Procedure Rules, we are there to protect the legal interest of the client.’ The lawyer effectively excludes all other duties in order to advance the best interests of his client. Lawyer 006 [Senior Partner, 40 years’ experience] was another who explicitly prioritised the duty to the client. The lawyer suggested that having competing duties ‘fudged’ the issue; the single duty taking priority is to the client. The four Classic Adversarial Lawyers had a combined 123 years of criminal defence experience. They all qualified and practised in the pre-CPIA 1996 era and therefore had experience of working in a time before the defence had to disclose any information, save for alibi and expert evidence. They had the adversarial weapon of an ambush defence and they could put the prosecution to proof without making an affirmative defence. The very notion of cooperation between the opposing sides would be shunned; prosecution and defence lawyers were adversaries, battling to advance the best interest of their respective clients. It is perhaps unsurprising to discover that the category most akin to the classic conception of the adversarial lawyer contains the fewest number of participants. ⁶⁵

As illustrated above, the vast majority of the lawyers in the present study fell into the second category, the Conflicted Adversarial Lawyer. Fifteen of the twenty-four participants could be placed in this category. They are ‘conflicted’ because they want to prioritise their duty to the client but, for a number of reasons, the impact of doing so is greatly diluted. The lawyers use terms such as ‘paramount,’ ‘prime’ or ‘main’. These terms suggest that the duty to the client takes priority, but it is quickly given a caveat that other obligations also exist that require a great deal of attention. Lawyer 008 [Solicitor, 6 years’ experience] provides an illustration of the Conflicted Lawyer. The lawyer suggested that their duty was ‘mainly’ to the client; this was not as explicit the Classic Lawyers as it recognised the existence, and importance, of other duties. Lawyer 009 [Senior Partner, 29 years’ experience] felt that the duty to the client was ‘paramount’ but accepted it was ‘coloured’ by the professional obligations to the court. These lawyers gave the impression that they are zealous advocates who are the shield of the accused, but, unfortunately, their other obligations dilute the impact of this shield. Lawyers in this category have a vast amount of experience; the most experienced lawyer qualified 32 years ago whereas the most recently qualified lawyer has four years’ experience. The experience range of this group makes for some very interesting results when compared with the Procedural category.

The final category is the Procedural Lawyer, who ultimately sees no issue or conflict with the obligations placed upon the defence lawyer by the CPIA and the CrimPR. Lawyer 022 [Solicitor, 6 years’ experience] illustrated this point by explaining that the obligations were merely an ‘occupational hazard’. These lawyers placed a heavy emphasis on the notion of cooperation; Lawyer 023 [Solicitor, 7 years’ experience] admitted they had an explicit duty to ‘their opponents’. Perhaps unsurprisingly, two of the three lawyers in this category had less than 10 years’ experience; therefore, they have only practised in an era when the CPIA and the CrimPR have been in operation. What was surprising was the remaining two lawyers, who had 13 and 18 years’ experience respectively. These advocates did not think the CrimPR or CPIA 1996 held many ramifications for the role of the defence lawyer. What is interesting is that the most recently qualified lawyers who took part in the study, both of whom had four years’ experience, provided responses that put them in the ‘Conflicted’ category. Two of the three Procedural lawyers have less than 10 years’ experience and because they may have been socialised into an era that prioritises efficiency and cooperation, it might be expected that the most recently qualified lawyers would also occupy a space in the Procedural category, but that is not necessarily the case as the two most recently qualified lawyers were placed in the ‘Conflicted’ category. However, the most senior partner at their firms were both in the Classic category and the adversarial culture that permeates those firms may have an impact on how they view their role and obligations.

Recommendations: The future of disclosure

This article has established that a combination of the disclosure regime and change in judicial culture has led to the dilution of the adversarial process and ultimately renders the defence lawyer a cog in the criminal justice machine; a stark difference to the gladiator of the accused. Further, it highlights the discrepancy of disclosure practices between defendant lawyers and the prosecution. Whilst admittedly some lawyers disclose bare minimal detail concerning their defence, the real problem is the prosecution disclosure: it is incomplete, not forthcoming or it is served at a late stage. Unfortunately, there appears to be no suitable sanction for such failings and the failings represent a real threat of allowing a miscarriage of justice occurring. Arguably, a complete overhaul of the disclosure regime should be made. A radical redesign of the regime, as suggested by Smith and Johnston (2018), is no doubt warranted. Smith and Johnston offer two new ways to tackle the problems with disclosure.

First, ‘full disclosure’, i.e. the entire prosecution case, save for sensitive material, should be made to the defence. The authors accept that this may leave the defence with an ‘over-load of haystacks, and few tools for finding needles’ (Smith and Johnston, 2018). Secondly, the post of a Judicial Disclosure Officer could be created. There are clear resourcing requirements, but this approach of plugging the issues of a broken regime with piecemeal changes needs to stop. A more assertive change is required and the JDO would focus on:

determining what, if any, exculpatory evidence exists;

Smith and Johnston contend that this will create an entirely new figure into the criminal justice system and may draw parallels with the investigative judge of inquisitorial jurisdictions. They advance that this has the ‘most potential’ to ensure the long-term fairness of the process. This would reassert the classic disclosure position, of balancing the quality of arms. Instead of the defence showing their cards to the prosecution and allowing them to plug gaps in their case, this would re-establish Denning’s ‘spirit’ of the disclosure regime. ⁶⁶ However, this approach is unlikely in light of the current economic climate, even if the improvements would save money in the longer term.

Truth or proof: The dilution of the adversarialism in pursuit of the overriding objective

This paper has illustrated a clear desire that the criminal justice process needs to be more efficient; this was a clear goal of the CrimPR and its overriding objective. The mechanisms of disclosure and case management provisions are the enabling factors that allow the court to pursue the objective of a more efficient trial. Undoubtedly, the criminal trial has always evolved through time, and to preserve resources is not to be immediately derided, though the cost of this pursuit could be viewed as something mirroring 18th-century trial process. The amount of disclosure and participation forced upon the accused is rendering them akin to the ‘informational resource’ of the ‘accused speaks’ trials. This form of trial reflected the notion that the trial was designed to establish the truth of a particular accusation. The implementation of the CrimPR, alongside the judiciary assuming a more interventionist role, could suggest that the pendulum is moving toward re-establishing the importance of the truth in criminal trials as opposed to proof. The goal of the criminal trial is to reconstruct historical events in respect of which neither party is in possession of all the facts (Moisidis, 2008: 250). Mosidis believes it is the problem of fact possession that reveals the tension between truth and proof in a criminal trial. He states that the essence of a criminal trial is a search for the truth rather than a sporting contest between the prosecution and defence (Moisidis, 2008: 250). It is this sporting contest that the CrimPR has assisted in eradicating. The criminal trial of England and Wales arguably reflects some of the values contained within the ‘accused speaks’ trial, where the defendant is an informational resource of the court (Hawkins, 1721, cited in Langbein, 2003: 171) as the defendant ‘knew if he did it’. The modern-day informational resource is forced to identify the ‘real issues’ of his case. Should the defendant delay, the court will exert pressure in order to extract a plea, even if the defence lawyer does not hold all the facts. The truth-seeking nature of the trial is also exemplified by the case management provisions of the CrimPR and its extension, BCM, which is designed to ensure that the case management provisions are strictly adhered to. Never before has the judiciary or magistracy had such explicit directions as to what constitutes their role of active case management. Furthermore, the voluntary nature of the defendant’s participation has dissipated and he is effectively compelled to make disclosures in ‘pursuit of efficient fact-finding’ (Owusu-Bempah, 2017: 163).

There has been no official recognition that adversarialism ought to be abandoned. However, this has been suggested implicitly through piecemeal changes to the criminal justice process. The interventionist judiciary and the disclosure regime are forcing the accused to talk by having them ‘identify the real issues’ at an early stage. The culture shift does not represent a swing toward inquisitorialism. Instead the swing is toward managerialism, and at the heart of this shift is the interventionist judge who is not merely a guiding pilot (Silverman, 1973: 63). The pendulum has swung, and the judiciary is now also the controller of the trial process. With the adversarial landscape shifting, the role the actors play also changes. What has not yet been recognised but has been highlighted in this article is the impact the managerial agenda has on the role of the defence lawyer.

Conclusion

Although the CrimPR has ‘an upside in that they consolidated many procedural rules, they also have a sinister downside by putting the acquittal of the innocent and conviction of the guilty at the heart of the Rules’ (Richardson, 2015: ix). The Rules ultimately confuse procedure with outcome and fundamentally undermine adversarial criminal process. The sole objective of the process should be to provide a fair means to trying a criminal charge, but as it is at the moment it leaves the defence lawyer in a position of great tension: how does one balance the duty to the client against the duty to the court?

Andrew Keogh intimated that the ‘clever, technical lawyer had died’ (Keogh, 2001). However, the empirical interviews suggest that is not necessarily the case. The clever technical lawyer, who would zealously defend their client and act as the client’s ‘white knight’ is alive and well—at least for now, and in a small fraction of the interview sample. These four lawyers represent the Classic Adversarial Lawyer, but are a dying, rather than an extinct, breed of lawyers in England and Wales. ⁶⁷ The tension created by the managerial agenda from the CrimPR is clear and the lawyer is required to positively contribute to the efficiency of the system; this is clearly identifiable by having to enter a guilty plea at the first hearing (Leveson, 2009). Those in the Classic category thought the rule was an aberration and that zealous advocacy and an active defence cannot be undertaken adequately within a short period of time. Lawyer 002 [Senior partner, 32 years’ experience] suggested that the courts were ‘asking you to nail your colours to the mast without operating with the full facts’; it is in this example where the technical lawyer is allowed to showcase their talents and offers up enough information to satisfy the courts but not at the expense of the client’s rights. However, what needs to be tackled is the fact that the defence are all too frequently advising clients without full disclosure from the prosecution. With continued failings with the prosecutorial regime, it is time to start reform that particular area of the process. With the competing pressures of the managerial era, underscored by an overriding objective of ‘dealing with cases justly’, the defence lawyer is simply not permitted the time to wait for disclosure. In order to reassert the adversarial values, defence lawyers must be presented with full facts.

Although the managerial landscape means that Classic Adversarial Lawyers could be viewed as a dying breed, there is some semblance of traditional adversarialism in the Conflicted lawyers, even if they were not as zealous in their pursuit of adversarial goals. They wanted to highlight the importance of the duty to the client but were quick to intimate that they had other duties such as fulfilling the overriding objective. The Procedural lawyer saw no problem with the rules and often thought they benefited the system in terms of speed and efficiently, albeit not necessarily their client.

In the modern managerial era, the need for adequate and timely prosecution disclosure is clear. The lack of timely disclosure impacts the ability of the defence lawyer to advise on an appropriate plea. Equally, a defendant may be pressured by his lawyer to enter a guilty plea or be tempted to do so because of the sentence discount. In such cases, there is a risk that the overriding objective of the CrimPR will be undermined—that is, to deal with cases justly, which includes acquitting the innocent and convicting the guilty. ⁶⁸ Whilst it is important to consider the effects of lengthy criminal proceedings on victims and witnesses, it is often the defendant who is forgotten in any reform. The rise of the CrimPR and its implicit goals of managerialism have the potential to weaken the adversarial protections of the criminal justice. The accused is coopted into the process and is almost compelled to participate in proceedings to satisfy the overriding objective. Whilst the criminal trial is not a game, nor is it a single-minded pursuit for a conviction. The defendant is entitled to have the evidence against him tested and should they not wish to say anything, the defendant should not be compelled to participate; regardless of whether the court believes that ‘he knows if he has done it’. This approach, highlighted by Lawyer 007, shows scant regard for the cornerstones of the adversarial process which encapsulate Packer’s Due Process protections. The disregard of safeguards has given rise to a process of cooperation accompanied by the common goal of efficiency. However, these goals all seem to slanted against the defendant.

There is undoubtedly an agenda, for better or worse, to encourage defendants to enter early guilty pleas, and it seems that should the defendant regret doing so, a remedy will rarely be offered by the courts. ⁶⁹ It is therefore imperative to ensure that any decision to enter a guilty plea is based on full and accurate evidence from the police and prosecution, made available at an early stage. This is arguably commensurate with the objectives of the CrimPR and the general culture change that has seen a drift away from pure adversarialism. If cooperation is to be encouraged, it should be done on an equal basis. This would ensure that the defence lawyer in the modern era can adequately advise the client as to plea. Moreover, it would re-assert the adversarial tradition of English and Welsh criminal justice by moving away from a system that is reliant on a defendant entering a guilty plea because he ‘knows if he has done it’ and moving towards a system which reaffirms the due process cornerstones of adversarialism by requiring the prosecution to discharge the burden of proof, without any assistance from the defendant.