Embracing the Overriding Objective: Difficulties and Dilemmas in the New Criminal Climate

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.•

Case management in complex fraud trials: actors and strategies in achieving procedural efficiency

“…Darbyshire (2014, see also Darbysihre, 2011Garland & McEwan, 2012: 248-250) has found in the majority of Crown Courts that she observed, and consist of reprimands:…”

“…Commentators have indicated that such shifts are difficult to achieve, especially with respect to the parties of the process (Quirk, 2006). Prosecutors and defence barristers alike are still immersed in the longstanding adversarial tradition, resources are scarce on both sides with regard to the onerous disclosure process, and there are no effective sanctions for reprimanding participants who impair the procedural efficiency of the trial (McEwan, 2011;Redmayne, 2003 (Hodgson, 2010;McEwan, 2011;Garland & McEwan, 2012). At its root is the notion of party rather than judicial control over the case, and the process relies on the "lawyer-partisans responsibility for gathering, selecting, presenting, and probing the evidence" (Langbein, 2003: 2).…”

“…The appearance of private QCs on the prosecution side is an important difference to other criminal trials where only Crown Prosecution Service (CPS) lawyers appear. This aids the case-management process, as the CPS have been found to frustrate the management activities in some courts (Darbyshire, 2014) due to significant non-compliance with the disclosure requirements (Edwards, 2010; Garland and McEwan, 2012, pp. 239–242).…”

“…The ability of the CrimPR to contribute to timely, streamlined and disciplined trials depends significantly on the attitudes and practices of the trial actors. Judges need to shift from ‘neutral, passive umpires of adversarial theory into becoming active managers’ (Garland and McEwan, 2012, p. 235; Denyer, 2010); prosecutors and defence barristers need to shift from combativeness (Langbein, 2003) to a cooperative culture (McEwan, 2000; Garland and McEwan, 2012). Commentators have indicated that such shifts are difficult to achieve, especially with respect to the parties of the process (Quirk, 2006).…”

Truth-finding, procedural traditions and cultural trust in the Netherlands and England and Wales

“…But the massive amount of information and the complexity of possible interrelations between elements of unused materials in complex investigations raise questions about the capacity of solicitors to process the material effectively. There are material disincentives for defence lawyers: under the graduated fixed fee system now used to fund legal aid, solicitors get a sum based on the number of pages disclosed, not the time taken to read them (Garland and McEwan, 2012: 245; Nurse, 2013: 77). Defence solicitors do not have access to the HOLMES computer technology used by the police to organise complex investigations and only the more specialist use Case Map (the equivalent for defence lawyers).…”