Redmayne's Character and Criminal Jurisprudence

Date01 July 2016
Published date01 July 2016
DOIhttp://doi.org/10.1111/1468-2230.12207
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REVIEW ARTICLE
Redmayne’s Character and Criminal Jurisprudence
Paul Roberts
Mike Redmayne,Character in the Criminal Trial, Oxford: Oxford Univer-
sity Press, 2015, xxiv +289 pp, hb £60.00.
With this monograph, published shortly before his untimely death last year,1
Mike Redmayne cements his reputation as one of the foremost criminal justice
scholars of his generation. Character in the Criminal Trial (CitCT) is an eminently
worthy addition to the Oxford Monographs on Criminal Law and Justice series,
edited by Andrew Ashworth, which over the last quarter century has showcased
some of the best contemporary criminal law scholarship in the English language.
CitCT is a mature work, written in a crisp, disarmingly accessible, matter-of-
fact style which, at first blush, might belie both the book’s erudition and
the provocative unorthodoxy of some of its central contentions. The Preface
promises
an in-depth analysis of particular uses of character evidence in relation to defen-
dants: good character and bad character evidence, used as evidence of propensity
to commit crime and as evidence of credibility (ix).
Readers anticipating a pedestrian perambulation through the evidentiary land-
scape, however, should take a hint from the (aptly chosen) cover design, featur-
ing Blake at his most Old Testament. (OUP’sproduction job is character istically
first-rate throughout. My only gripe: where’s the bibliography?) CitCT adopts
an interdisciplinary methodology, combining doctrinal analysis with broader
socio-legal, criminological, psychological and forensic science literatures, and
underpinned by firm foundations in penal theory. In its broad vision and de-
termination to pursue its topic across conventional disciplinary taxonomies,
CitCT represents a major contribution both to Evidence and Proof scholar-
ship and to criminal jurispr udence (being the theoretical part of Criminal Law,
holistically and inclusively conceived).
The first section of this review article amplifies these – admittedly del-
phic – claims, by summarising methodological developments in the Law of
Professor of Criminal Jurisprudence, University of Nottingham; Adjunct Professor, University of
New South Wales, Faculty of Law; Adjunct Professor of Law, Collaborative Innovation Center of
Judicial Civilization, China University of Political Science and Law, Beijing. I am grateful to MLR
reviewers for helpful comments and suggestions.
1 ‘Obituar y: Mike Redmayne’ (2015) 78 MLR 727; P. Roberts, ‘Mike Redmayne 1967-2015’
(2015) 19 International Journal of Evidence & Proof 207.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(4) MLR 706–726
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Paul Rob ert s
Evidence and noting the emergence of Criminal Law theory as a distinct
(inter)disciplinary specialism. This minor detour leads naturally into fuller dis-
cussion of the book’s central themes.
DISCIPLINARY TRANSFORMATIONS
Although perceptions are changing, the Law of Evidence is still widely regarded
as a practitioner-oriented practical discipline, dominated by a stifling weight
of case-law precedents, and with minimal theoretical interest for serious legal
scholarship. Many textbooks seemingly pander to this uninspiring disciplinary
model. Moreover, the majority of Law graduates in England and Wales (though
not, intriguingly, in Northern Ireland, where the Law of Evidence is a com-
pulsory subject) leave university with at best a rudimentary understanding of
criminal evidence and procedure, and even less knowledge of civil litigation.
These gaps are filled, of course, by later practical instruction at ‘the vocational
stage’ of legal education for graduates intending to enter the legal professions,2
but this institutionalised division of pedagogic labour only tends to reinforce
problematic tendencies and assumptions. In my – assuredly partisan – opinion,
the model of Evidence law dominated by doctrinal technicality and narrowly
devoted to practical utility always betrayed a very partial grasp of what eviden-
tiary scholarship and teaching have to offer. Today, it represents a travesty of a
subject that, over the last several decades, has been evolving towards thoroughly
interdisciplinary studies of evidence and proof,3which are concerned as much
with the uses and evaluation of evidence in institutional settings as with its legal
admissibility and which aspire to epistemological sophistication.4Contempo-
rary Evidence and Proof scholarship is interdisciplinary both in its theoretical
commitments and in its programmatic practical and policy interventions, no-
tably in the area of forensic science.5It also prominently incorporates formal
models of inferential reasoning, drawing on logic, statistics, probability theory,
computer science and other heuristic models of factual inference.6Another
2 cf radical proposals currently tabled by the Solicitors Regulation Authority, Training for Tomor-
row: Assessing Competence 7 December 2015 at www.sra.org.uk/sra/consultations/t4t-assessing-
competence.page (all URLs were last accessed 13 January 2016), which, if implemented, would
have major implications for legal education in evidence and procedure.
3 W. Twining, ‘Evidence as a Multi-disciplinary Subject’ (2003) 2 Law, Probability and Risk 91; P.
Dawid, W. Twining, and M. Vasilaki (eds), Evidence, Inference and Enquiry (Oxford: OUP, 2011);
P. Roberts and M. Redmayne (eds), Innovations in Evidence and Proof (Oxford: Hart, 2007).
4 See, for example, P. Roberts (ed), Theoretical Foundations of Criminal Trial Procedure (Farnham:
Ashgate, 2014) Part III; S. Haack, Evidence Matters: Science,Proof, and Truthin the Law (Cambr idge:
CUP, 2014); H. L. Ho, A Philosophy of Evidence Law – Justice in the Search for Truth(Oxford: OUP,
2008).
5 P. Roberts (ed), Expert Evidence and Scientific Proof in Criminal Trials (Farnham: Ashgate, 2014);
G. Jackson, C. Aitken and P. Rober ts, Case Assessment and Interpretation of Expert Evidence RSS
Practitioner Guide No 4 (Royal Statistical Society, 2014) at www.rss.org.uk/statsandlaw; E.
Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due
Process (Cambridge: CUP, 2007).
6 P. Roberts and C. Aitken, The Logic of Forensic Proof: Inferential Reasoning in Criminal Evi-
dence and Forensic Science RSS Practitioner Guide No 3 (Royal Statistical Society, 2014) at
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(4) MLR 706–726 707

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