The Slow Death Of The Adversarial System & The Rule Of Law – Blog By Tim Compton
Published on 01/03/2021
I hope anyone who is a qualified criminal lawyer is familiar with “the golden thread” that it is said runs through the criminal justice system; if unaware of the phrase, then I suggest, depending on age, immediate retirement, or a change of career.
Of course, “the golden thread” I refer to is to be found in the famous quotation from the speech of Lord Sankey LC in Woolmington v. DPP  UKHL 1: –
“Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.“
In 2020 I turned 60. Frankly, in most respects, growing old sucks. Physical decay has nothing to recommend it whatsoever. However, one of the (very) few advantages is one is increasingly older than many of the Judges before whom one appears and can get away with rather more. As a rather able silk I knew had displayed on his mantelpiece many years ago, “Old age and treachery will overcome youth and enthusiasm”. However, one of the few advantages may be that age does, at least, possibly give a degree of perspective?
At the risk of sounding a veritable doomsayer, around the world, the rule of law seems under attack by certain forces – I started to write this as pipe bombs were found near the Capitol Building of the USA when a mob, actively incited by the sitting President, stormed the building, “protesting” about an election that he unequivocally lost. In Hong Kong, coordinated mass arrests of pro-democracy protestors has taken place. The unfortunate detainees are likely to be dealt with by an impartial justice system (sic.) run by the CCCP in mainland China.
The criminal justice system [“CJS”] in England & Wales is an adversarial, not an inquisitorial system. I recall being taught that more than 30 years ago. There has been however, I think, over the course of my career at the Bar a drift away from that system towards a more inquisitorial approach. Sometimes it is accidental: I remember as a child, a friend of my brother staying whilst in pupillage; he was seething having recently appeared before Lay Justices in a Magistrates’ Court trial, pulling his hair out as to how to respond when addressed by the (Lay) Chairman, “but Mr. [X], the defendant is guilty until proved innocent isn’t he?”.
Sometimes it is deliberate: in Magistrates’ Courts across the country can be found a useful (?) poster showing those, less familiar with the Courts, the layout: who sits where and what they do. The “defence lawyer” caption tells a stranger to the system how (emphasis added): –
“The defence lawyer will speak on behalf of the defendant and try to show that they are not guilty of the offence. They also ask the witnesses questions. Sometimes a defendant will represent themselves.”
Am I the only one who thinks that the burden of proof may have been watered down, if not reversed? It is not an accident, it is official: see GOV.UK and in particular at https://www.gov.uk/guidance/hmcts-whos-who-magistrates-court#the-defence-lawyer.
Then, of course, we have that invaluable cure for insomnia, the Criminal Procedure Rules 2020. I confess some curiosity over that much loved overarching principal, “the overriding objective”: –
“1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes―
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account―
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.”
Of course, that purely self-proclaimed procedural code has to be read alongside the obligation imposed any participant under paragraph 1.2 which provides that:-
“The duty of the participants [& that means all advocates and, bizarrely, the defendant him / herself] in a criminal case, is supposed to, indeed “must” be to, “prepare and conduct the case in accordance with the overriding objective”.
I ignore for now the obligation now imposed on me to sneak on any colleague or opponent who has let things slip under paragraph 1.2 (1)(c), no doubt the MOJ and / or HMCTSs’ brilliant 21st century adaptation of the Renaissance Venetian bocche di leone?
A number of these objectives are wholly unobjectionable and indeed no one, in a half civilised society could possibly object to them, including the overriding objective itself, as initially phrased, but as is so often the case the devil is in the detail. In his guidance to prosecuting advocates, the late Farquharson LJ commented that prosecution counsel should regard himself or herself in a phrase, which he acknowledged by then was already sounding old fashioned, as a “Minister of Justice” – I confess that sitting in court nowadays that often seems to be less of the case (I will return to this when considering erosion of the rule of law in due course).
A number of the particular requirements could best be described as a wholly unobjectionable & essentially meaningless box ticking list of platitudes – e.g. 1.1 (1) (c) & (d). If you do not believe me just try inserting the word “not” into the particular paragraph and see what you think. Some might be viewed as contentious: the use of the word “victims” rather than “complainants” at 1.1. (2) (d) seems, firstly, to prejudge whether someone is a “victim”: to take an extreme example, if a man is falsely accused of rape (it is very rare this does happen, but it does sometimes) then the man, also now known as the “suspect” / “defendant” – not, of course, “the prisoner” or the “the accused” anymore – is actually “the victim”, if we’re going to have to use that word and his accuser, the complainant, is not a victim, but a criminal? Secondly, there may be a risk of losing focus on ultimately whose interests should be the central focus of the criminal trial given the consequences of the verdict and the presumption of innocence?
When defending, my attention and my concern is (I hope, and it damn well ought to be?) focused on my lay client. I am confused if it is my duty and indeed my lay client’s duty to ensure that he or she is convicted if guilty – I did not understand that to be my role as defence counsel when called in 1984, but foolishly thought that burden lay on the Crown; I cannot help but feel that duty sits a little uncomfortably with the golden thread of old in an adversarial system, and I have to confess that I have difficulty with what seems to me a rather different approach now in 2021. No doubt the difficulty is one of my own creation and represents my own intellectual shortcomings, indeed, when recently suggesting the same to a Circuit Judge (the difficulty that is, not any possible intellectual shortcomings) when said Judge was threatening to deal with my lay client for contempt of court in refusing to come out of his cell for the fun of an 8+ hour round trip to Court for a PTPH followed, most likely, return to a different prison – discourteous, yes, Contempt of Court, no) he said, “I don’t understand what you mean Mr Compton” in marked contrast to my opponent who said subsequently that she understood exactly what I meant.
Then again, being of a certain age, the Criminal Evidence Act 1898 was as mother’s milk to me and many. For all the children out there – frankly, all of you called or admitted since 2003 – that Act provided, outside what might be called “similar fact evidence”, that a defendant’s bad character only went into evidence in the event that certain conditions were met, an application to the judge was successful, and, most importantly, the defendant then actually strayed into the witness box.
Now, of course, as we all know, bad character if it satisfies conditions to get through one of “the gateways” can be adduced by the Crown as part of its case – a logical move one might think if the system is increasingly inquisitorial rather than adversarial?
There will be those who may think my concerns are ridiculous. They may be correct; I hope they are and I would rather be ridiculous and wrong than Cassandra like and right (although I hasten to add I am not claiming her abilities– fat lot of good it did her anyway). Equally, I do not have a problem with the move to an inquisitorial system – it may be a good idea , it may be a bad idea (I confess, I have always found it slightly difficult to reconcile with the presumption of innocence). My concern is this: if we are to move to an inquisitorial system we should do so as a matter of deliberate policy and not, as it seems to me increasingly, by default.
Against that disquieting background it seems to me also that the rule of law itself is under attack sometimes deliberately, sometimes without thought, but that is a topic for another occasion … ?
12 CP Barristers