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

AuthorCaroline Fennell
PositionB.c.l. (N.u.I.), ll.m. (Osgoode hall), b.l., ph.d. (University of wales), statutory lecturer, university college cork
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
* 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
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.
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).
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.

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