The Truth Will Out? The Role of Judicial Advocacy and Gender in Verdict Construction
| Date | 01 September 2002 |
| DOI | 10.1177/096466390201100302 |
| Author | Jo Winter |
| Published date | 01 September 2002 |
| Subject Matter | Articles |
ROLE OF JUDICIAL ADVOCACY
AND GENDER IN VERDICT
CONSTRUCTION
JO WINTER
University of Manchester, UK
ABSTRACT
This article considers the largely neglected role of judicial summing up in contested
trials. The rhetoric of the role of the judge is of independent arbiter. Using the trials
of Myra Hindley and Rose West the article examines the relationship between this
rhetoric and reality in the light of the discretion allowed by the broad nature of the
rules ‘regulating’ the summing up. The article explores how this rhetorical space can
be used or exploited so that it becomes a form of judicial advocacy, creating new
narratives or lending support to the narratives of the prosecution or defence. In
particular, the article argues that a crucial distinction in the narratives evident in the
summings up in the trials of Rose West and Myra Hindley is the appearance of the
sexed or gendered identities of the two women.
INTRODUCTION
THE TRADITION of legal positivism provides the basis for the
traditional belief that in trials the truth is discoverable and can be
elicited when the facts are made known, and reason and the law
applied (Nicolson, 1994). The prime arena for this is generally taken to be
the jury trial, even though jury trials represent less than 1 percent of all
criminal proceedings, as the majority of cases are heard in a magistrates’ court
or are disposed of by guilty plea (Sanders and Young, 2000: 552). Within this
conception of the trial, evidence is presented by witnesses and counsel while
the judge presides as independent arbiter performing a ‘supervisory’ role
(Zuckerman, 1989: 54), ensuring that applicable rules and conventions are
followed. The judge then informs the jury of the relevant legal rules and
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requirements and reminds them of the facts: ‘[the judge’s summing up] from
an independent standpoint summarises the case, explains the legal issues in
contention and may comment on factors which lend weight to or cast doubt
on certain evidence’ (White, 1985: 85). Finally the jury retires, considers the
facts as borne out by the evidence and returns with a verdict. This model of
the trial is based on an understanding of the judge and the jury as neutral and
value free.
Sociolegal research has challenged this perception of the trial process,
arguing that the verdict is the culmination of a pre-trial process during which
evidence is selected and excluded, and events interpreted and reinterpreted,
shaped and reshaped. For example, at the level of police investigation, cases
are constructed by the police. Once a prima facie case is established against
the accused, evidence is gathered not about him or her but against him or
her, with a view to proving the guilt of the suspect, rather than presenting all
that is discoverable. If the case progresses to a jury trial, the ‘facts’, as dis-
covered by the investigation, are mediated by counsel whose sole objective
is to win the case. The form of argument, selection of witnesses and evidence
is governed, not so much by a wish to discover what is most likely to have
happened, but by counsel’s need to present a plausible account of events to
the jury which makes sense of the evidence in a way that supports their
position. The most effective way of doing this is to arrange the account into
a narrative (Bennett and Feldman, 1981). Consequently, it can be argued that
the version of events and evidence that the jury is presented with is a social
construction of reality.
This article takes the examination of case construction further. It examines
the final stage in the process of construction, the summing up, exploring the
nature of the judge’s role at this stage. I question whether that role accords
with the positivist perception of judge as independent arbiter, through textual
analysis of the summings up in the trials of Rose West and Myra Hindley. I
explore how the scope for discretion allows the summing up to be used to
shore up or undermine the narratives presented to the court, and the role
assumed by the judge in ensuring or encouraging conviction in the two cases.
I pay particular attention to factors such as the weight of evidence and how
the cases were presented by prosecution and defence counsel. This explo-
ration involves an examination of how gender was used as part of the
summing up in these two cases, which are unique by virtue of the fact that
they provide the only known examples of female serial killers in England for
over 100 years.
THE FACTS
Myra Hindley was tried jointly with Ian Brady and found guilty in 1966 of
the murders of Edward Evans and Lesley Ann Downey and as an accessory
after the fact in the murder of John Kilbride, for whose murder Ian Brady
was found guilty. The evidence was strong. David Smith (Hindley’s brother
WINTER: VERDICT CONSTRUCTION
345
in law) reported the pair to the police after witnessing the murder of Edward
Evans. The body of Edward Evans was subsequently found in Myra Hindley
and Ian Brady’s home. During the investigation that followed, the police
found photographs of Lesley Ann Downey taken in the house and a tape
recording of her being stripped naked. The police also found a number of
photographs taken on the moors, which were discovered to be the victims’
graves. One such photograph was of Myra Hindley crouched on the grave
of John Kilbride, whose name was also found in a notebook belonging to
Brady. During the trial Ian Brady denied all knowledge of John Kilbride. He
also claimed that Lesley Ann Downey had been paid for the photographs
and had left the house alive. He protected Hindley, explaining that she was
reluctantly involved in the photographing of Lesley Ann Downey and not
involved in the killing of Edward Evans. Yet in the face of the evidence, Ian
Brady’s claims were disbelieved and with the finding of his guilt came Myra
Hindley’s.
Rose West was tried for the murder of 10 girls/young women, allegedly
committed with her husband Fred in 1995. The case was based on 10 bodies
found in homes inhabited by the Wests. Throughout the investigation Fred
West claimed sole responsibility for the murders. He insisted that Rose West
had no knowledge of them. Indeed there was no evidence to link her with
the bodies, or even some of the victims. Fred West, however, committed
suicide before the trial took place and so Rose West became the sole defen-
dant. As a consequence of Fred West’s admissions there was a problem in
linking Rose West to the deaths of the victims (hereafter referred to as the
evidential gap), but also a perceived need to find someone responsible for
their deaths. The conviction was achieved, perhaps primarily, on the basis of
the evidence of a number of women who testified that they had been sexually
abused by Rose West.
Before examining in detail the summings up in these cases it is necessary
to examine how the form of the law allows the judge considerable discretion
in interpreting the facts presented to the court, and how the summing up
itself might be said to have a special status within the trial.
RHETORIC, RULES AND THE REALITY OF SUMMING UP
McBarnet, in her examination of the criminal justice system, explored the
apparent gap between the legal positivist conception of the legal process
mentioned above, and how it works in practice (McBarnet, 1983). She argued
that this gap is not a gap between law as written and law as practised. Rather,
it is a gap between the rhetoric of the criminal justice process (the legal posi-
tivist conception) on the one hand, and the rules and reality on the other.
Much of the time, she argues, the discretionary nature of the rules ‘regulating’
practice allows actors to deviate from the legal positivist model. This is
certainly true of the role of the judge in the summing up. While there are
elements of the summing up that the judge is obliged to include (a ‘circular
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tour’ around the area of law affected by the case; references to the burden
and standard of proof; an explanation of the respective roles of judge and
jury; a succinct summary of the facts required to reach a decision; a summary
of the evidence; and a statement of inferences the jury are entitled to draw:
Lord Hailsham in R v Lawrence [1982]), how s/he communicates and deals
with the facts of the case is largely unregulated.
The legal positivist conception of the system is reflected in the legal
requirement that the judge clearly states the separation of the roles of the
jury as the trier of facts and his/her own position as the advisor on the law
(Broadhurts v R [1964]). However, as long as the judge clearly articulates
‘the disclaimer’, s/he is allowed to comment on the evidence.1 S/he may
comment strongly on the facts (R v Cohen [1909]), on the evidence that falls
outside of the arguments of the defence and prosecution (R v Cohen [1909]),
on the reliability of the evidence as long as it is grounded in fact (Cooke
[1986]) and on the strength of the defence or prosecution cases (Coulter v
R [1926]). The judge can even suggest a suitable verdict. (L Salmon DPP v
Stonehouse [1978]). Judicial discretion appears to be regulated by the
requirement that the summing up be ‘fair’. This requires the review of the
evidence to be balanced; and represents equally the cases of the prosecution
and defence (R v Mills [1936]). However, while her or his review of the
evidence...
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