Truth, Efficiency, and Cooperation in Modern Criminal Justice

Abstract

In England and Wales, a developing system of judicial criminal case management, devised in the first instance to impose efficiency on an overloaded criminal justice system, has shown little sympathy with defence lawyers' traditional emphasis on the interests of the client and the nature of client's instructions, if the consequence at trial of such allegiance is the defence employing 'ambush' or taking 'technical' points. This new ethos is producing a distinctly less adversarial system, in which the court takes a pro-active role. The procedural framework was designed partly to encourage early resolution of proceedings, and to enable more accurate estimations of trial length and better management of court lists. What is striking, however, is that the drive for 'cost-effectiveness' is coupled with a new approach to criminal litigation in which the parties are to co-operate in reaching a managed verdict reflecting the process vision of the 'truth'. This article will consider the consequent effect on defence obligations in the light of claims that the new system is consistent with the presumption of innocence, the privilege against self-incrimination, and the right to legal assistance as protected by Article 6; this necessitates discussion of the extent to which accuracy of outcome, efficiency, and protection of fair trial rights are compatible objectives.