Adversarialism goes West
| Author | Mike McConville,Luke Marsh |
| Date | 01 July 2015 |
| DOI | 10.1177/1365712715583218 |
| Published date | 01 July 2015 |
| Subject Matter | Articles |
Article
Adversarialism goes West:
Case management in
criminal courts
Mike McConville
Chinese University of Hong Kong, Hong Kong
Luke Marsh
Chinese University of Hong Kong, Hong Kong
Abstract
This article examines the approach of criminal courts in England and Wales to case manage-
ment alongside the contradictory pressures placed upon the pre-trial role of the defence
advocate, when advising on plea, which have led to the erosion of the adversary ideal. It focuses
on the overarching procedural code that ‘governs’ the relationship between defence lawyers
and the judiciary in the conduct of criminal cases (the Criminal Procedure Rules) and draws
upon a recent important decision which extends the antipathy of the courts towards
adversarial advocacy. The conclusion drawn is that traditional understandings of the adversarial
advocate have expired together with the duty of defence lawyers to ‘promote fearlessly and by
all proper and lawful means the client’s best interests’.
Keywords
adversarial advocacy, case management, Criminal Procedure Rules, defence duties, guilty pleas,
Leveson Review
Introduction
It is a critical test of the freedom inherent in our democratic society that those accused (usually by the State) of
committing criminal offences can and should be represented by capable criminal advocates, independent in
spirit who, subject to the rules of law and procedure which operate in our courts and to the dictates of pro-
fessional propriety, are prepared to put the interests of their clients at the forefront and irrespective of personal
disadvantage.
1
Corresponding author:
Luke Marsh, Faculty of Law, Chinese University of Hong Kong, Room 528, 5/F, Lee Shau Kee Building, Sha Tin, NT, Hong Kong.
E-mail: luke.marsh@cuhk.edu.hk
1. Lumsdon & Ors, R (On the Application Of) vLegal Services Board [2014] EWHC 28 (Admin) (20 January 2014), [1], per
Leveson LJ.
The International Journalof
Evidence & Proof
2015, Vol. 19(3) 172–189
ªThe Author(s) 2015
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DOI: 10.1177/1365712715583218
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It is a decade since the Criminal Procedure Rules (CrimPR) came into effect. The CrimPR sought to
simplify the procedures of criminal courts in England and Wales and to make them ‘accessible, fair and
efficient’.
2
Despite the ‘sea change’ heralded at the time,
3
criminal practitioners still do not fully
appreciate the fundamental change that the Rules Committee (chaired by the Lord Chief Justice and
heavy with other judges including Leveson P) has implemented under the broad powers conferred by
the Courts Act 2003. Practitioners have misread the extent to which their duty to their clients has been
overridden in the cause of ‘efficient’ court administration and have not appreciated that the ‘fair’ pro-
vision has been left trailing. As the President of the Queen’s Bench Division, in his 2015 Review of Effi-
ciency in Criminal Proceedings (Leveson, 2015: 52), strikingly explained: there has been ‘a failure
properly to disseminate the good work of the Committee and embed it in the consciousness of criminal
practitioners’. To resolve this, the Leveson Review sets out, bluntly, to make ‘alterations to the culture
which surrounds practices in the criminal courts’ (Leveson, 2015: 84, emphasis added).
Priorto the publication of the LevesonReview, a stark indicationof the impact of the CrimPR hadalready
come to the forefrontin Re West,
4
a decision on case management powers which exemplifies a developing
official culture (governmental and judicial) towards defence services with important implications for the
wider legal profession. As will be argued, West is symbolic of the tension faced by trial judges under the
CrimPR when ‘managing’ defence counsel who seek to assert their ‘right’ toadversarial protections.
This article examines the approach of the criminal courts in West to the contradictory pressures placed
upon the pre-trial role of the defence advocate, when advising on plea, which have led to the erosion of
the adversary ideal. This article therefore adds to the growing body of literature that makes a central
claim: the adversary system has been significantly weakened by a shift in judicial approach, one aligned
to governmental interests, its most visible manifestation being the disintegration of defence counsel’s
‘proper’ role (Hodgson, 2010; McEwan, 2011).
The conclusion drawn is that traditional understandings of the adversarial advocate have expired and
traditional limitations on the role of judges have been abrogated by judicial aggrandisement. The duty of
defence lawyers to ‘promote fearlessly and by all proper and lawful means the client’s best interests’
5
is
out of alignment with the recent judicial overreach into the conduct of the defence case under the
CrimPR—a regime which now openly prioritises ‘savings to the State’ in the once sensitive balance
of counsel’s duties and which accords judges powers unimaginable under adversary principles.
6
An historical antipasto
In 1784, William Shipley was charged with criminal libel for the re-publication of a pamphlet calling for
democratic governance. In line with bitterly contentious precedent,
7
Mr Justice Buller sought to restrict
the jury to determining whether the words had been published and that it was for him to decide whether
the words were a libel. Following the brilliant defence of Thomas Erskine, one of the greatest ever advo-
cates to appear in English courts, the jury said that Shipley was guilty of publishing only. Although the
2. Courts Act 2003, s. 69(4)(a).
3. Thomas LJ in R (on the application of the DPP) vChorley Justices [2006] EWHC 1795 [24], [25].
4. West, Re [2014] EWCA Crim 1480 (CA (Crim Div)).
5. Rule rC15.1 of the Code of Conduct (Bar Standards Board, 2014: 33).
6. As Lord Reid in Rondel vWorsley [1969] 1 AC 191 famously observed: ‘Every counsel has a duty to his client fearlessly to
raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s
case.’ Lord Reid qualified his ‘fearless advocate’ through the advocate’s position as an officer of the court: ‘Counsel must not
mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient
basis in the information in his possession ...’.
7. The precedent having been established by Coke LCJ (who effectively invented criminal libel as a means of suppressing
criticism of state officials) and Lord Mansfield in the notorious trials of Woodfall and Almon (1770–1772, State Trials, xx, 803,
895), whose direction to the jury was described by Junius as one which ‘contradicts the highest authorities as well as the plainest
dictates of reason’.
McConville and Marsh 173
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