Embracing the Overriding Objective: Difficulties and Dilemmas in the New Criminal Climate
| Author | Jenny McEwan,Fae Garland |
| DOI | 10.1350/ijep.2012.16.3.403 |
| Published date | 01 July 2012 |
| Date | 01 July 2012 |
| Subject Matter | Article |
Embracing the
overriding objective:
difficulties and
dilemmas in the new
criminal climate
By Fae Garland* and
Lecturer, University of Exeter
Jenny McEwan**
Professor of Criminal Law, University of Exeter
Abstract There has been little discussion to date of the impact of the new
criminal case management system enshrined in the Criminal Procedure Rules
for England and Wales upon the judges and practising lawyers who are expected
to operate it. Detailed interviews were conducted with a number of these
criminal law professionals in order to explore what, if any, problems they were
experiencing in this context. It transpires that a number of practical problems
confront them, and that defence lawyers may have difficulty reconciling their
ethical obligations to the client with their considerably enhanced duties to the
court. The issues that emerge from this small sample of interviews provide
useful material to be taken into account in the design of any larger project to
investigate the efficacy of case management or to compare local variations in
practice. They also offer guidance to those developing the new criminal
procedures in what obstacles to the desired cooperative culture need to be
addressed.
*
Email: F.Garland@ex.ac.uk.
** Email: J.A.McEwan@ex.ac.uk.
The authors are indebted to Professor Anne Barlow for her invaluable comments on a draft of this
article.
doi:10.1350/ijep.2012.16.3.403
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2012) 16 E&P 233–262
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EMBRACING THE OVERRIDING OBJECTIVE: DIFFICULTIES AND DILEMMAS
Keywords Criminal case management; Overriding objective; Crown Prosecution
Service; Defence advocates; Cooperative culture
n this article we set out the results of a small-scale, British
Academy-funded empirical project. It is the first to study the effect of the
I systemofcriminalcasemanagementsetupbytheCriminalProcedure
Rules1 upon practitioners in England and Wales. The principal aim of the research
was to identify those issues upon which a large-scale comparative study should
focus, if the effectiveness of the system is to be evaluated. To date the new
practices, although revolutionary in their scale and intended realignments of
practitioner loyalties, have been little discussed in academic literature. The
reforms require criminal courts and practitioners to make substantial changes to
the way they conduct cases, yet there has been no equivalent to the virtual deluge
of criticism that greeted the implementation of the Woolf case management
reforms to civil procedure. The explanation for this may be that although the
criminal changes are no less radical, they do not carry the same risk that
‘front-loading’2 of effort jeopardises the efficiency gains they are designed to
achieve. Nevertheless, the reforms pose considerable potential problems to
lawyers on both sides of criminal litigation, who are expected to move from an
atmosphere of adversarial competitiveness to one of cooperation; whether or not
such a transformation can be achieved by the mere promulgation of new proce-
dural rules remains to be seen.3 It has been argued that the objectives of the case
management process will not be achieved without a strong cultural shift4 from
adversarialism to a cooperative ethos. The then Lord Chief Justice, introducing the
original version of the Rules in 2005, acknowledged at the outset that a culture
1
The Criminal Procedure Rules 2005 (SI 2005 No. 384) have been replaced by the (chiefly consoli-
dating) Criminal Procedure Rules 2011 (SI 2011 No. 1709 (L. 15)). The Criminal Procedure Rules
Committee was set up by Courts Act 2003, s. 72(1). The manner in which the Rules are designed to
work has been authoritatively set out in R. L. Denyer, Case Management in the Crown Court (Hart:
Oxford, 2008).
2
For example, RAND Institute for Civil Justice, An Evaluation of Judicial Case Management under the Civil
Justice Reform Act (Rand Corporation: Santa Monica, CA, 1996); G. L. Davies, ‘Civil Justice Reform:
Why We Need to Question Some Basic Assumptions’ (2006) 25 CJQ 32; P. Fenn, N. Rickman and D.
Vencappa, ‘The Impact of Civil Procedure Reforms on Costs and Delay’ in M. Faure and F. Stephen
(eds.), Essays in the Law and Economics of Regulation—in Honour of Anthony Ogus (Intersenti: Antwerp,
2008). But see Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (TSO: London, 2010) 395,
suggesting that in England and Wales no evidence of front-loading of costs is currently available.
3
There is no equivalent, e.g., of the Law Society Family Law Protocol by virtue of which the practi-
tioner is presented with a Code of Conduct that balances the interest of the client and the
encouragement of mediation as opposed to a court hearing.
4
C. Whittaker, A. Mackie, R. Lewis and N. Ponikiewski, Managing Courts Effectively: the Reasons for
Adjournments in Magistrates’ Courts, HORS 168 (Home Office: London, 1997); SCAG (Committee of
Attorneys-General of Australia), Deliberative Forum on Criminal Trial Reform: Report (2000), paper
presented to the AIJA/SCAG Conference on Criminal Trial Reform, Melbourne, March 2000,
available at
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EMBRACING THE OVERRIDING OBJECTIVE: DIFFICULTIES AND DILEMMAS
change was sought.5 This article considers whether the new system is considered
to be working well, and whether the change of atmosphere is under way.
For the Criminal Procedure Rules to succeed in their aims of making trials timely,
streamlined and disciplined,6 the lawyers involved must embrace the considerably
enhanced workload attached to early identification of the real issues7 and the
advance supply of details of the likely witnesses for the defence.8 They must also be
ready to participate in a more cooperative culture in which they keep opponents
and courts informed, not only of the progress of the case, but of any delays or
failures to comply, whether attributable to the other side, to their own fault or to
their client.9 For the judiciary and magistracy, the reforms require a shift from
being the neutral, passive umpires of adversarial theory into becoming active
managers, particularly in the Crown Court via the Plea and Case Management
Hearing (PCMH).10 Magistrates’ courts are also bound by the obligations under the
overriding objective 11 that criminal cases are dealt with justly.12 In this climate,
courts are expected to resist what are perceived to be unmeritorious tactical
manoeuvres or ‘ambush’.13 The investigation undertaken here questions whether
5
Sir Harry Woolf, LCJ, Foreword to the First Edition, Criminal Procedure Rules 2005 (Ministry of Justice:
London, 2005).
6
Sir Robin Auld, Review of the Criminal Courts of England and Wales (TSO: London, 2001) 481–7, available
at
of State for Home Department, Lord Chancellor and Attorney-General, Justice for All, Cmnd 5563
(TSO: London, 2002), available at
(Runciman Report), Cm 2263 (HMSO: London, 1993). Also in Scotland, Lord Bonomy, Improving
Practice: The 2002 Review of the Practices and Procedures of the High Court of Justiciary (Scottish Executive:
Edinburgh, 2002).
7
Criminal Procedure and Investigations Act 1996, s. 6A(1), as amended. The statutory obligation that
the defence submit case statements pre-trial applies only to the Crown Court, but the overriding
objective requirement under the Criminal Procedure Rules, r. 1.1(1) to assist the case management
function applies in all criminal courts including the magistrates’ court.
8
Criminal Justice Act 2003, s. 34, amending the Criminal Procedure and Investigations Act 1996, s.
6C; the Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010
(SI 2010 No. 1183) brought the section and its associated provisions into force in England and Wales
from 1 May 2010. This requirement is mandatory in both Crown Courts and magistrates’ courts.
9
The ‘grassing-up’ clause (Criminal Procedure Rules, r. 1.2(1)(c)).
10 In Crown Court cases. There may be a pre-trial review in magistrates’ courts.
11 Criminal Procedure Rules, r. 1.1(1).
12 Criminal Procedure Rules, r. 1.1. Although the statutory disclosure rules under the Criminal
Procedure and Investigations Act 1996, ss. 3–7 do not apply to summary proceedings, for partic-
ipants in all criminal courts, ‘justice’ includes ‘dealing with the case efficiently and expeditiously’.
See Karia v DPP [2002] EWHC 2175 (Admin).
13 For example, R v Tibbs [2000] All ER (D) 95, [2000] 2 Cr App R 309; Leeson v DPP [2000] RTR 385; R v Jisl
[2004] EWCA Crim 696, [2004] All ER (D) 31 (April) at [114], per Judge LJ; cf. R v Chaaban [2003] EWCA
Crim 1012, [2003] All ER (D) 355.
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EMBRACING THE OVERRIDING OBJECTIVE: DIFFICULTIES AND DILEMMAS
and to what extent legal practitioners are able and willing to embrace the
demands of the Criminal Procedure Rules.
From the prosecution point of view, the aims of the new system, although it may
require changes to practice, would not appear to create any conflict of loyalty. The
Code for Crown Prosecutors demands objectivity. ‘Prosecutors must always act in
the interests of justice and not solely for the purposes of obtaining a conviction.’14
Therefore the only culture changes necessary for the Crown Prosecution Service
(CPS) to adapt to the new climate are
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