This article argues that recent attempts to modernise criminal procedure in England and Wales – most prominently Sir Brian Leveson's Independent Review of the Criminal Courts Part I and Jonathan Fisher K.C.'s Independent Review of Disclosure and Fraud Offences – amount to a re-engineering of the adversarial trial around a managerial logic of efficiency. It begins by reconstructing the normative core of the adversarial model in terms of party-led investigation, equality of arms in access to evidence and robust public adjudication under Article 6 ECHR. It then shows how Leveson's model of judicially driven case management, combined with long-standing under-resourcing, has entrenched a plea-driven system in which contested trials are treated as a residual and increasingly unaffordable option. Against that background, the Fisher Review's proposals for digital disclosure, Intensive Disclosure Regimes and AI-enabled triage are examined as a second-order settlement which accepts this diminished adversarial baseline. The evidentiary significance of the argument is to trace how these reforms reconfigure who sees what evidence, when and on what terms, with direct implications for equality of arms, disclosure, cross-examination and effective participation. The article concludes by sketching a counter-agenda for digital disclosure that would take adversarial values, rather than throughput efficiency, as its organising principle.
Ed Johnston (Thu,) studied this question.