The adversarial defence lawyer: Myths, disclosure and efficiency—A contemporary analysis of the role in the era of the Criminal Procedure Rules
| Author | Ed Johnston |
| Published date | 01 January 2020 |
| Date | 01 January 2020 |
| DOI | http://doi.org/10.1177/1365712719867972 |
Article
The adversarial defence
lawyer: Myths, disclosure
and efficiency—A contemporary
analysis of the role in the era
of the Criminal Procedure Rules
Ed Johnston
Senior Lecturer in Law, Bristol Law School, Bristol, UK
Abstract
This article contends that piecemeal changes to the adversarial process since the dawn of the
new millennium have transformed the CJS. The advent of (near) compulsory disclosure means
the defendant has to reveal many elements of his defence. This dilutes the adversarial battle and
leaves a process which is managerialist in nature. The Early Guilty Plea system is a mechanism
to increase the efficiency by stemming the amount of cases reaching the trial stage. This has an
impact on the defence lawyer’s role and renders him conflicted between advancing the best
interest of the client against other pre-trial obligations. This small empirical study suggests that
classic adversarial lawyers are seen as a relic of a bygone era. The modern criminal justice
system prioritises speed and efficiency. If a case reaches court, the defendant is treated as an
‘informational resource’ of the court reminiscent of his position in the 17th century.
Keywords
Adversarialism, defence lawyer, disclosure, early guilty plea, managerialism
In the current criminal justice climate, disclosure is extremely topical. Since the turn of 2018 there have
been a number of cases which have collapsed as a result of disclosure failings.
1
Whilst these cases
concern CPS disclosure failings, the cases have brought a great deal of attention to an often-ignored area
of criminal procedure. These cases highlight the problematic nature of disclosure and the more general
problems with an adversarial approach. The approach is now underscored by a drive for efficiency in the
Corresponding author:
Ed Johnston, Senior Lecturer in Law, Bristol Law School, Bristol, UK.
E-mail: edward2.johnston@uwe.ac.uk
1. See Liam Allen (Metropolitan Police and CPS, 2018), Samson Makele (Dearden, 2018), Isaac Itiary (Brown, 2017) and Oliver
Mears (Walter and Maidment, 2018).
The International Journalof
Evidence & Proof
2020, Vol. 24(1) 35–58
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DOI: 10.1177/1365712719867972
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post-Auld Review era, which seeks to increase the efficiency of the adversarial criminal trial by imple-
menting a number of efficiency drivers.
2
Yet questions remain about how the changes of legislation and
judicial culture have impacted the fair trial rights afforded to the defendant and the role of the defence
lawyer. This article explores the evolution of adversarialism and suggests that whilst the system may be
cumbersome, the inherent due process safeguard contained within the process are a worthy price.
However, since the dawn of the 21st century, adversarialism has been diluted at an accelerated rate and
has given rise to a more managerial mantra which this article will term the ‘New Regime’. The New
Regime has prioritised efficiency over effectiveness and fundamentally shifted the classic position of the
defence lawyer. The empirical work is taken from semi-structured interviews designed to explore how
practising defence lawyers perceive their own role, the findings suggest that defence lawyers struggle to
view themselves as classically adversarial when they have a number of competing obligations and duties
imposed by both the Criminal Procedure Rules (CrimPR). This work follows in the footsteps of numer-
ous academics who argue that adversarialism is on the wane. Already in 1994 McConville et al. (1994)
suggested that adversarial lawyers did not exist in reality and did not offer clients a zealous adversarial
defence. More recently, McEwan (2011, 2013) claimed that the CrimPR weakened the adversarial nature
of the criminal process in England and Wales. Further, Owusu-Bempah (2013, 2017) argues that forcing
the defendant to participate in the criminal process fundamentally alters the adversarial framework and
finally Quirk (2006, 2018) asserts that the changes made to the Right to Silence by the Criminal Justice
and Public Order Act 1994 paved the way for the dawn of the disclosure regime and was arguably the
genesis of the new regime. The pursuit of greater efficiency compels the defendant to participate to a
greater degree and, ultimately, undermines the due pro cess protections that the adversarial process
provides, thus heightening the possibility of a miscarriage of justice.
This article isbased on a small empirical projectthat was carried out between2015 and 2016.
3
The first
part of the article sets the scene by examining the drive for efficiency and the implications of the Auld
2. CrimPR Rule 1.1(2)(e) suggests that the overriding objective to ‘deal with cases justly’ can be met by dealing with cases
efficiently and expeditiously. This article contends that the focus of criminal procedure over the last 20 years has been to satisfy
this goal. A number of reviews and programmes have been established to improve efficiency, particularly in the magistrates’
courts, inter alia Auld (2001); Courts and Tribunals Judiciary (2015a); Gross and Treacy (2012) and Leveson (2015).
3. Methodology—Fundamentally, the aim of the research is to develop a deeper picture of the impact of the Criminal Procedure
and Investigations Act 1996 (CPIA 1996) and the Criminal Procedure Rules (CrimPR) from a defence lawyer’s point of view.
With this aim, the author carried out 24 semi-structured interviews with practising defence lawyers with varying years of
experience. The vast majority of participants were selected via Twitter and then the other participants were recruited via
snowballing. This is ‘when the researcher accesses informants through contact information that is provided by other infor-
mants’. The potential reach of using Twitter is vast and very attractive to an empirical research study. A person can ‘tweet’
another user directly without requiring prior permission. Further to this, other users can share existing information with their
own followers by ‘re-tweeting’ a tweet. This extends the reach of the original tweet as it will be seen by far more users. Twitter
was selected over other forms of social media as it was easier to identify lawyers and to then approach them from a position of
no pre-existing relationship. From tailoring my own personal account it was clear that there is a large community of defence
lawyers and academics with an interest in criminal defence on Twitter. The length of experience differed greatly between the
lawyers; ideally, the study sought lawyers who were in practice prior to the disclosure changes made by the CPIA 1996 and
those who have only practised with a culture of defence disclosure imbedded in their practice. This goal was successful; the
most experienced lawyer in the group had practised criminal law for 40 years, whereas the most recently qualified criminal
lawyer had four years’ experience. The mean length of exp erience was almost 17 years. The choice for semi-struct ured
interviews is justified in the following manner: the general aim of the interview is to encourage the participants to talk at
length about their own experiences and thoughts and that the process is not concerned with obtaining the ‘right’ answer but what
the lawyer thinks a structured interview might lead to short, simple, general or abstract answers to the interviewer’s questions.
In contrast, the semi-structured interview allows the participants to talk about the CPIA 1996 and CrimPR in terms of their own
frames of reference; by doing this, the participants also maximise the interviewer’s own understanding of their responses.
Although the interviewer has a clear set of issues, i.e. the main questions, that has to be addressed, he/she is prepared to be
flexible in terms of allowing the interviewee to develop ideas and speak more widely on the issues raised. The emphasis is on
the interviewee elaborating on key points of interest and broaching a broader range of issues. Further, the semi-structured
interviews allowed the interviewer to ask follow-up questions, exploring the areas of ambiguity and seeking clarification on any
relevant issue, as well as to probe the answers given by the participant.
36 The International Journal of Evidence & Proof 24(1)
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