All Rise for the Interventionist

Abstract

This paper will examine the changing role played by the judiciary in criminal trials. The paper examines the genesis of the adversarial criminal trial that was born out of lifting the prohibition on defence counsel in trials of treason. The paper will chart the rise of judicial passivity as lawyers dominated trials. Finally, the paper examines the rise of the interventionist judiciary in the wake of the Auld Review that launched an attack on the inefficiencies of the modern trial. To tackle the inefficiencies, the Criminal Procedure Rules allowed the judiciary to reassume a role of active case management. The impact an interventionist judiciary has for adversarial criminal justice is examined. The paper finds that a departure from traditional adversarial has occurred; the criminal justice process has shifted to a new form of process, driven by a managerial agenda.