The criminal justice system of England and Wales has been subject to a series of essentially ad hoc reforms that depart to a significant degree from its adversarial heritage and represent a threat to fair trial rights under Art 6 of the European Convention on Human Rights. Far from moving closer to the European ‘inquisitorial’ model, as has been suggested by some commentators, criminal procedure is becoming increasingly dominated by managerialist concerns. Intolerance to litigant control is motivated by the desire to increase efficiency and reduce cost, although the replacement of party autonomy in terms of control over the conduct of the case by state power over process corresponds to some degree to the descriptions, in the work of Mirjan Damaška, of the system favoured by ‘activist’ states. However, the financial crisis facing the new government means that the situation is unlikely to be alleviated should the extent of government activity be reduced.
There has been little discussion to date of the impact of the new criminal case management system enshrined in the Criminal Procedure Rules for England and Wales upon the judges and practising lawyers who are expected to operate it. Detailed interviews were conducted with a number of these criminal law professionals in order to explore what, if any, problems they were experiencing in this context. It transpires that a number of practical problems confront them, and that defence lawyers may have difficulty reconciling their ethical obligations to the client with their considerably enhanced duties to the court. The issues that emerge from this small sample of interviews provide useful material to be taken into account in the design of any larger project to investigate the efficacy of case management or to compare local variations in practice. They also offer guidance to those developing the new criminal procedures in what obstacles to the desired cooperative culture need to be addressed.•
In England and Wales, the Sexual Offences Act 2003 has redefined crimes of serious sexual assault and introduced evidential presumptions in relation to consent.
Member States are required to afford protection to vulnerable victims in respect of their participation in criminal proceedings. At the same time, attempts to enhance mutual admissibility of evidence without insisting on convergent procedures have encountered problems, undermining such protections when they are offered. This discussion suggests measures important to protection of the vulnerable, and highlights those that are most likely to be mutually compatible within the EU.
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