The Adversarial Lawyer and the Client's Best Interest: Failures With Pre-Charge Engagement

Published date01 February 2024
DOIhttp://doi.org/10.1177/00220183231225054
AuthorEd Johnston
Date01 February 2024
Subject MatterArticles
The Adversarial Lawyer
and the Clients Best Interest:
Failures With Pre-Charge
Engagement
Ed Johnston
University of Northampton, UK
Abstract
The role of the defence lawyer is one of a zealous advocate, acting in the best interests of their
client. However, a substantial body of evidence suggests that lawyers often operate as compo-
nents within a procedural machinery that primarily processes the guilt or innocence of defen-
dants. This phenomenon has led to the gradual erosion of the concept of zealous advocacy and
adversarialism. Over the last 30 years, the adversarial process in England and Wales has experi-
enced a steady transformation through incremental adjustments to the criminal justice system.
The advent of the Criminal Procedure Rules 2003 (CrimPR) marked a notable shift in the
handling of criminal cases, ushering in a culture of cooperation where both prosecution and
defense cooperate with the shared objective of upholding the CrimPRs Overriding
Objective: to deal with cases justly. This transformation has steered the criminal justice pro-
cess away from its adversarial origins and toward a more managerial and process-driven frame-
work. An additional manifestation of this managerial culture emerged with the introduction of
Pre-Charge Engagement (PCE) in 2021. PCE sought to divert cases trial by initiating a dialogue
between defense lawyers and the police. If effectively employed, PCE could help reduce the
backlog of cases in the criminal courts and expedite resolutions for complainants, suspects,
and witnesses. However, it is concerning that PCE is underutilised. This article contends
that defense lawyers, by not fully embracing PCE, may not be acting in the best interests of
their clients and certainly deviate from the conventional conception of a defense lawyers role.
Keywords
Defence lawyer, pre-charge engagement, adversarialism, fair trial rights, disclosure
Corresponding author:
Ed Johnston, Criminal Justice and Procedure, University of Northampton, WatersideCampus, NN1 5PH, Northamptonshire, UK.
Email: ed.johnston@northampton.ac.uk.
Article
The Journal of Criminal Law
2024, Vol. 88(1) 316
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231225054
journals.sagepub.com/home/clj

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