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42 Brandeis L.J. 189 (2003-2004)


Viewed from a distance the outward appearances of the English Legal System might look reassuringly stable. In fact, nothing could be further from the case. During the last ten years almost every facet of the system, even the constitutional order, has been radically overhauled, or at least significantly modified. The whole system of civil procedure has been recast, after over a hundred years of relatively little major modification, in an attempt to simplify and expedite proceedings with a new emphasis on judicial case management. Perhaps most important of all, the Human Rights Act 1998, which has been effective from October 2, 2000, requires courts to take account of the European Convention on Human Rights in reaching their decisions. Most recently, the Proceeds of Crime Act 2002 extends the draconian confiscation provisions, which were already in place for drug related offences to offences generally. The climate is therefore one of pervasive change in many areas of law, and this includes criminal procedure to a very significant degree.

Against this background of change, it is striking that the movement towards codification of the criminal law, substantive and procedural, has made no ground at all, and shows no sign of doing so. Such reform as has been carried out has been entirely piecemeal and there is nothing to compare with the Uniform or Federal Rules of Evidence. It will come as no surprise that there does not appear to be any interest, outside academic circles, for a codification of criminal procedure. As one commentator has observed, not only would there be significant advantages to codification, it would also be eminently feasible. That something better could be achieved might be indicated by the way criminal procedure was rationalised in Scotland over twenty-five years ago by the Criminal Procedure (Scotland) Act 1975. In 1995, a further Act consolidated subsequent legislation and still managed to be shorter than its predecessor. If codification has proved to be so uncontroversially feasible in Scotland, is there any compelling reason why England could not achieve as much?

Against this general background, issues of incompetent representation and miscarriage of justice have posed a number of different problems recently and elicited at least one major reform of the procedural structure, the institution of a Criminal Cases Review Commission.


Reprinted with permission of University of Louisville Law Review (previously Brandeis Law Journal).



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