The culture of decision-making: a case for judicial defiance through evidence and fact-finding

• Author: Caroline Fennell
• Position: B.c.l. (N.u.I.), ll.m. (Osgoode hall), b.l., ph.d. (University of wales), statutory lecturer, university college cork
• Pages: 25-65

THE CULTURE OF DECISION-MAKING:

A CASE FOR JUDICIAL DEFIANCE

THROUGH EVIDENCE AND FACT-FINDING

DR. CAROLINE FENNELL*

A task recently identified by Professor Andrew

Ashworth in the context of the criminal law was that of the

search of features for a model of criminal laws

that is more principled, conceptually more

coherent, and constitutionally and politically

more appropriate.1

The rules of evidence traditionally receive their

strictest application in the criminal context, being more easily

waived or set aside by the parties in the civil context and

tribunals. Some of the rules have been given a constitutional

home in this jurisdiction, however, and so are not, ostensibly,

so easily departed from. A core of the rules is seen to

correlate to fairness, and may be seen to be wedded

domestically to a constitutional, and indeed transnationally to

a Convention concept of ‘fair trial’. Although the European

Court of Human Rights, for instance, allows countries

latitude with regard to their domestic rules of evidence (“The

admissibility of evidence is primarily a matter for regulation

by national law”2), certain basic principles such as the

presumption of innocence, and the right to silence, are

guaranteed under Article 6. Hence the legal burden of proof

2001] The Culture of Decision-Making 25

2Windisch v. Austria (1990) 13 E.H.R.R. 281.

1 Ashworth, “Is the criminal law a lost cause?” (2000) 116 L.Q.R. 255 at

255.

* B.C.L. (N.U.I.), LL.M. (Osgoode Hall), B.L., Ph.D. (University of

Wales), Statutory Lecturer, University College Cork. This article is based

on a paper given at the National Judicial Conference in November 2001.

cannot normally be placed on the accused, nor silence

criminalised.3

Certain rules of evidence reveal themselves on

examination to be self-evidently ‘political’ or policy driven -

the rules on admissibility of real or confession evidence in

the aftermath of police breach of pre-trial process for

example. High water marks here would be the Irish courts’

decisions in Kenny4 and Ward.5 Other rules may be viewed

simply as ‘adjectival law’, so remaining hidden in terms of

influence, or regarded as a matter of ‘common-sense’. That

unquestioning acceptance of certain rules regarding fact

finding and credibility, in particular, merits exploration in

terms of its relationship to popular culture and sentiment in

the world around us. In searching for a model of evidence

that is principled and coherent, it may prove useful to square

the application of rules in certain contexts with a central

unifying concept of fair trial. How that concept evolves over

both context and time, as revealed through our treatment of

evidence may raise questions - and provide tentative

answers-to what might ground our evidentiary rules.

I. (RE)CONSTRUCTING THE ‘LAW STORY’: THE ROLE OF POPULAR

CULTURE

The symbolic trial is viewed as a signifier

within the dominant legal culture: it is a forum

that projects authoritative messages through

language and legal form about identity and

social relationships in a struggle between the

26 Judicial Studies Institute Journal [2:1

5D.P.P. v. Ward (Special Criminal Court, unreported, Barr J., 27

November 1998).

4D.P.P. v. Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569.

3R v. Lambert [2001] 3 W.L.R. 206; Heaney & McGuinness v. Ireland

Jgt. 21 Dec. 2000 [2001] Crim LR 481; Quinn v. Ireland jgt. Dec 21 2000

antagonistic world views of the defence and

the prosecution.6

Cultural nuances dictate how we assess information.

Less well appreciated may be the fact that as such nuances

change over time, rules relating to relevance, fact

determination or credibility, when fossilised in law, can be

found to contain the vestiges of another age, ill-suited to the

current climate. This distillation of assumptions regarding

veracity into law, and subsequent application to assessments

of credibility and fact-finding at trial, prove powerful

determinants of guilt or innocence. Solidified as evidentiary

rules, these assumptions become part of legal culture, and

may prove themselves difficult to uproot, even in face of

legislative reform. Several jurisdictions, for example, have

attempted to reform corroboration rules, both as to the need

for a warning at all (Canada and the United Kingdom7 in the

case of accomplices); or its mandatory application in certain

cases (Ireland8 in relation to sexual offence victims and

children).9 Similarly, rape shield rules were introduced in

2001] The Culture of Decision-Making 27

9 At the time the changes were introduced in relation to sexual offences,

they were unsurprising, given originating rationale(s) such as Wigmore’s

suggestion that every sexual offence complainant should be subjected to

psychiatric examination before being allowed to testify, general

assumptions regarding the veracity of women in rape cases, or the

supposed hierarchy of trustworthiness between different types of sex

offence victims. See further Fennell, “Differential Treatment of Sexual

Complainants by the Law of Evidence: A Case for Reform” (1987) 22 Ir.

8 Section 27 of the Criminal Justice (Evidence) Act, 1992; section 7 of

the Criminal Law (Rape) Amendment Act, 1990.

7 Section 31(2) of the Criminal Justice and Public Order Act, 1994

abolished the corroboration warnings where a person is an accomplice or

the offence a sexual offence. See further Birch, “Corroboration: Goodbye

to All That” [1995] Crim. L.R. 524. In Canada the Supreme Court

abandoned the corroboration requirement in relation to accomplices in

Vetrovec v. R. [1982] 136 D.L.R. (3d) 89.

6 Bumiller, “Fallen Angels: The Representation of Violence Against

Women in Legal Culture” (1990) 18 International Journal of the

Sociology of Law 125, 126.