All Rise for the Interventionist
| Published date | 01 June 2016 |
| DOI | 10.1177/0022018316647870 |
| Date | 01 June 2016 |
| Subject Matter | Articles |
Article
All Rise for the
Interventionist: The Judiciary
in the 21st Century
Ed Johnston
Senior Lecturer in Law, Bristol Law School, University of the West of England, UK
Abstract
This paper will examine the changing role played by the judiciary in criminal trials. The paper
examines the genesis of the adversarial criminal trial that was born out of lifting the prohibition
on defence counsel in trials of treason. The paper will chart the rise of judicial passivity as
lawyers dominated trials. Finally, the paper examines the rise of the interventionist judiciary in
the wake of the Auld Review that launched an attack on the inefficiencies of the modern trial. To
tackle the inefficiencies, the Criminal Procedure Rules allowed the judiciary to reassume a role
of active case management. The impact an interventionist judiciary has for adversarial criminal
justice is examined. The paper finds that a departure from traditional adversarial has occurred;
the criminal justice process has shifted to a new form of process, driven by a managerial agenda.
Keywords
Criminal Procedure Rules, adversarialism, managerialism, judiciary
This paper will examine the evolving role of the judiciary from the early adversarial trial up until the
advent of the Criminal Procedure Rules 2015 (hereafter, ‘CrimPR’). The paper will chart the role played
in early criminal proceedings, starting with the lawyer-free ‘altercation’ trial of the 16th century. Here,
the judiciary assumed an early form of case management powers; they actively managed cases and acted
as counsel for the defendant. The prohibition on defence counsel was lifted in the 18th century; this was
the genesis of adversarial trial. The role of active judicial participation rapidly diminished and an era of
judicial passivity commenced. The paper will investigate whether a cultural shift has occurred in the
contemporary criminal trial. At the heart of this pendulum swing is a question: is the judiciary reverting
to its pre-adversarial approach by departing from its position of passivity to become a more active
participant in the arena of the criminal trial? The paper will discuss the potential ramifications this
culture shift has for the future of the adversarial criminal justice process of England and Wales.
Corresponding author:
Ed Johnston, Senior Lecturer in Law, Bristol Law School, University of the West of England, Bristol, UK.
E-mail: edward2.johnston@uwe.ac.uk
The Journal of Criminal Law
2016, Vol. 80(3) 201–213
ªThe Author(s) 2016
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DOI: 10.1177/0022018316647870
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