‘Poor Lawyering’: The Missed Opportunity of Pre-Charge Engagement

Over the last thirty years, there has been a paradigm shift in the way criminal justice operates in England and Wales. There has been an implicit drive for a more efficient process and arguably, this has not only weakened due process protections for suspects but more worryingly, placed the efficiency of the justice system as the paramount priority. This quest for a more efficient process started with the changes to the silence provisions by way of the Criminal Justice and Public Order Act 1994, although it is argued that the catalyst for of this ‘modern era’ of criminal procedure started with the changes to the defence disclosure provisions under the Criminal Procedure and Investigations Act 1996. As this chapter will explore, the defence disclosure provisions paved the way for the Criminal Procedure Rules 2003 and their Overriding Objective of ‘dealing with cases justly.’ Inextricably linked to this objective is the notion of co-operation and ultimately, a dilution of core adversarial values. The drive for a more efficient criminal justice system (CJS) focusses on processing and completing cases as quickly as possible and a number of different mechanisms have been employed to achieve this goal. These mechanisms permit criminal cases to go through the system as quickly as possible, much akin to Herbert Packer’s ‘conveyor belt’ in his Crime Control Model. The latest mechanism created to enhance the efficiency drivers of the CJS is Pre-Charge Engagement (PCE). This was introduced by the revised Attorney General’s Guidelines on Disclosure in December 2020. The advent of PCE followed a review of disclosure in the criminal justice system initiated by the then Attorney General in 2018 which was, in large part, prompted by a number of cases which collapsed owing to disclosure failings by the prosecutors. The Attorney General’s Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System in 2018 stated that ‘there must be a new emphasis on compliance with the duty of disclosure much earlier in the process than is currently the practice.’
Based on empirical research, this chapter will explore the traditional role of the defence lawyer and the impact of PCE holds for the criminal justice system of England and Wales. The chapter asserts that ‘poorly lawyering’ has spurned an opportunity to not only engage with police and prosecution at an early juncture, despite evidence suggesting the scheme could divert suspects from prosecution. Such a diversion would have the twin benefit of not only reaffirming adversarial rights of zealous representation but on a more pragmatic level, could help shift some of the backlog in both the magistrates’ and Crown Courts of England and Wales and fulfil the efficiency drivers so desired by the justice system.