The Adversarial Lawyer and the Client’s Best Interest: Failures with Pre-Charge Engagement

The role of the defence 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 components within a procedural
machinery that primarily processes the guilt or innocence of defendants.
This phenomenon has led to the gradual erosion of the concept of a
zealous advocacy and adversarialism. Over the 30 years, the adversarial
process in England and Wales has experienced a steady transformation
through incremental adjustments to the criminal justice system.
The advent of the CrimPR marked a notable shift in the handling of
criminal cases, ushering in a culture of cooperation where both
prosecution and defense collaborate with the shared objective of
upholding the CrimPR's Overriding Objective: to deal with cases justly.
This transformation has steered the criminal justice process away from
its adversarial origins and toward a more managerial and process-driven
framework. 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 offer help to
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 lawyer's role.