The Role of Gender in Judicial Decision-Making: Similar Fact Evidence, the Rose West Trial and beyond
| Author | Jo Winter |
| Published date | 01 January 2004 |
| DOI | 10.1350/ijep.8.1.31.36508 |
| Date | 01 January 2004 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 31
THE ROLE OF GENDER IN JUDICIAL DECISION-MAKING: ROSE WEST TRIAL
(2004) 8 E&P 31–46
The role of gender in
judicial decision-making:
Similar fact evidence, the
Rose West trial and beyond
By Jo Winter
School of Law, University of Manchester
I
Abstract. This article uses the trial of Rose West as a window through which to
examine and understand some of the processes underlying decisions to allow
or exclude similar fact evidence in rape and other sexual offence trials. Drawing
on research which has explored decisions to admit past sexual history evidence,
it suggests that the same gendered presumptions which have informed them
are at work in decisions to exclude similar fact evidence of previous rapes. In
these areas, where the law allows for broad discretionary decision-making, such
discretion is frequently exercised to the detriment of female complainants,
but in the West case it was exercised to the cost of Rose West, a female defendant.
The article argues that judicial decision-making should therefore be understood
not just in terms of pro- or anti-defendant tendencies, but in terms of gendered
thinking.
n 1995 Rose West was tried and convicted at Winchester Crown Court,
United Kingdom, of the murders of 10 young women.1 Her husband,
Fred West, had been charged jointly with her, but had committed suicide
before the case came to trial. Crucial to the prosecution case was the large amount
of similar fact evidence submitted during the course of the trial. This similar fact
evidence consisted of the testimonies of several women who had come into contact
with the Wests at various times during the decades during which the murders
were committed. The women testified about the sexual abuse they had suffered
at the hands of the Wests. The nature of this evidence meant that there was what
could be described as a rape trial within a murder trial.
1 A journalistic account of the case can be found at www.bbc.co.uk/crime/caseclosed/fred
west1.shtml; see also B. Masters, She Must Have Known: The Trial of Rosemary West (Doubleday: London,
1996).
32 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THE ROLE OF GENDER IN JUDICIAL DECISION-MAKING: ROSE WEST TRIAL
It is likely that in the absence of this similar fact evidence there would have been
no conviction, for the only direct evidence connecting Rose to the murders was
the presence of the victims’ bodies buried in her home, and her husband Fred
had confessed that he was solely responsible for their deaths. The similar fact
evidence provided an additional link between Rose and the victims: by suggesting
that Rose West was involved in routine sexual abuse, both with and without her
husband, the prosecution drew parallels between the abuse described in the
similar fact evidence and that suffered by the dead victims, as illustrated by their
remains, thereby indicating her involvement.
As the victims’ bodies placed Rose West at the scene of the murders but failed to
indicate her responsibility for the deaths, the similar fact evidence acted as
identity evidence, as in R v Straffen.2 The similar fact evidence provided evidence
of her propensity to commit sexually motivated offences which then linked her
to the circumstances of sexual abuse in which the killings took place. It is rare
for similar fact evidence to be used in a trial3 and even rarer for it to be used to
show propensity. This article explores briefly how the arguments by the
prosecution, who proposed that the evidence should be admissible, the defence,
who opposed it, and the judge who eventually ruled for its inclusion, fitted within
the existing law governing the inclusion or exclusion of such evidence. The article
goes on to explain the decision within the wider legal context. It seeks to resolve
why, despite it being rare for a judge to allow similar fact evidence in a rape
trial,4 evidence of previous rapes was allowed in this, a trial for murder. Further,
it considers why it is that, in spite of the Rose West decision,5 no evidence of
previous rapes in rape trials seems to have been reported until 2000.6
Similar fact evidence: the problem of forbidden reasoning
Similar fact evidence is rarely used in any type of trial. Although there are powerful
reasons for this, many have argued that similar fact evidence should be used
more frequently. These debates have recently been brought to a head in the Law
Commission’s review of similar fact evidence and the government’s recent White
2 [1952] QB 911, examined below.
3 For example, previous convictions emerge in approximately 20 per cent of Crown Court trials;
this is due to similar fact evidence in only approximately 1 per cent of all cases where previous
convictions became known to the court (M. Zander and P. Henderson, Crown Court Study, Research
Study No. 19, Royal Commission on Criminal Justice (HMSO: London, 1993) paras. 4.6.6 and 4.6.7).
Although this figure does not include similar fact evidence of previous acquittals or non-criminal
behaviour it does indicate the rarity with which similar fact evidence is used.
4 Discussed below.
5R v West [1996] 2 Cr App R 374.
6R v Z [2000] 3 WLR 117, discussed below.
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