Rebalancing the criminal justice process: Ethical challenges for criminal defence lawyers
Cape, Ed (2006) Rebalancing the criminal justice process: Ethical challenges for criminal defence lawyers. Legal Ethics, 9 (1). pp. 56-79. ISSN 1460-728X
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This article considers the ethical obligations of criminal defence lawyers in the context of significant change to the criminal process in England and Wales. It argues that since coming to power in 1997 the government has been engaged in a programme of changing the criminal justice system from one based upon the principle of fair trial rights to one based on managerialist values, an agenda that has been endorsed and supported by some members of the senior judiciary. Using examples taken from legislation and case-law, it demonstrates that defence lawyers are increasingly being prevented from acting in the best interests of their clients. Current, and proposed, professional conduct rules fail to adequately articulate and prioritise the relationship between the lawyer's obligation to the client and to the court, with the result that lawyers are left to resolve ethical dilemmas created or exacerbated by the transformation of the criminal process without adequate ethical guidance. It proposes that the legal professions should challenge the government's plans to transform the criminal process, and refashion professional conduct rules around human rights values.