The Tentacles of State Case Management: ‘Co-operative’ lawyering and ‘efficient’ disclosure in the context of plea determination

Lord Justice Auld’s Review of the Criminal Courts of England and Wales was the catalyst for a ‘New Regime’ in criminal procedure in England and Wales. Much like the RCCJ in the early 90s, Auld focused on the excesses of the adversarial system and whether by design or not, reframed criminal procedure through the lens of ‘efficiency’ and ‘economy’. On the back of the Review the courts were quick to adopt this process and case law suggested that if ‘sporting chances’ and game playing would stop, justice would be carried out in a swift and sure manner. The era of compelled suspect participation was born and the Criminal Procedure Rules (CrimPR) focused criminal trials on ‘dealing with cases justly.’ This overriding objective means the accused is compelled to assist the prosecution and, ultimately, aid the State’s pursuit of a conviction. In December 2020, the Attorney General’s Guidelines on Disclosure created the provision of Pre-Charge Engagement (PCE). This mutually agreed, voluntary process, is designed to increase the efficiency of the police investigation. Currently, little is known about the impact of PCE, but at face value it appears to be a one-way flow of information – the information comes from the suspect and goes to the police and the police are not obligated to follow any lines of enquiry born out of PCE. This development is arguably a continuation of what Jackson suggested two decades ago, where he argued that the police interview had been transformed into a formal part of the proceedings against the accused. This chapter will examine whether the dilution of adversarialism, starting with the CrimPR, and continuing with the advent of PCE, threatens fair trial rights in England and Wales. Inadequate disclosure from the police/CPS leaves the defence lawyer operating on a partial picture of facts. Without full disclosure the lawyer cannot provide their client with adequate legal advice regarding plea. Since pressures to plead guilty are endemic to the system, there is a risk that some suspects may enter into a plea bargain without knowing the full-strength of the case against them or on the basis of legal advice which, by the process itself, is ill-informed. The chapter will challenge a number of issues concerning disclosure, PCE and plea bargaining. Firstly, the over-reliance on what occurs in the police station, this has led to a number of miscarriages of justice in British history. There is an inherent danger that the slow drive for efficiency will allow for more miscarriages of justice as economy and efficiently are prioritised at the expense of justice. Secondly, the counterweight of defence representation holds a litany of concerns, not limited to inadequate disclosure, reduction in the Legal Aid budget and the low take-up of legal advice in the police station. Thirdly, the criminal justice process has an inability to correct any imbalance. There is great difficulty in challenging a conviction obtained via a guilty plea (regardless of the first and second issues mentioned here). Finally, the British adversarial system ought not to be seen as an ideal model which other jurisdictions ought to replicate. It should be an example of a system that requires critique, interrogation and challenge.