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The mutable defendant: from penitent to rights-bearing and beyond

Published online by Cambridge University Press:  28 October 2019

Rachel Gimson Open the ORCID record for Rachel Gimson [Opens in a new window]
Rachel Gimson*
Affiliation:
University of Exeter, Exeter, UK
*
*Author email: R.M.Gimson@exeter.ac.uk
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Abstract

Contemporary criminal justice is premised on a rights-bearing defendant safe-guarded by due process from arbitrary state punishment. The paucity of academic commentary on the role of the criminal defendant suggests that there is a common assumption that the role is static. However, the rights-bearing defendant is a relatively new concept. Through a legal history analysis, this paper demonstrates that the defendant's role can mutate in response to pressures placed on the criminal trial. Broadly, there have been three conceptualisations of the defendant: the penitent Anglo-Norman defendant; the advocate defendant of the jury trial; and the rights-bearing adversarial defendant. Importantly, the shift from one conceptualisation to another has occurred gradually, often without commentary or conscious effort to instigate change. There are many contemporary pressures that could be impacting on the rights-bearing defendant. The concept of a mutable defendant provides a new theory through which to analyse these pressures. This paper considers the introduction of adverse inferences regarding the right to silence and disclosure, and the rise of ‘digilantism’. These new pressures, it is suggested, help to facilitate a rhetoric of deservingness that goes against the rights-bearing defendant and raises the risk its role could once again be mutating.

Keywords

criminal justicemodern threatslegal historydefendant
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 1 , March 2020 , pp. 113 - 130
Copyright
Copyright © The Society of Legal Scholars 2019

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Footnotes

†

The author would like to thank Rebecca Probert, Richard Volger and John Child for their contributions and comments to earlier drafts. She would also like to thank the anonymous reviewers for reading the paper and for their very helpful comments.

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164 See, for example, ‘Second man was the victim of knife attack at age of 16’ (London: The Guardian, 25 May 2015); ‘My ex-boyfriend, the terror suspect; “lovely, polite boy”’ (London: Daily Telegraph, 24 May 2013).

165 Wrighton was beaten to death using a variety of household items and suffered at least 70 slash injuries and 54 blunt force injuries and was hurt so badly that she lost control of her bowels. The attack lasted seven hours and has been described as ‘torture’ by some media outlets. See for example N Parveen ‘Teenage girls who tortured Angela Wrightson to death given life sentences’ (London: The Guardian, 7 April 2016).

166 ‘Angela Wrightson killers: a friendship that ended in murder’ (BBC, 13 June 2017), available at https://www.bbc.co.uk/news/uk-england-35977027 (last accessed 29 August 2019). This was heavily criticised in some news outlets. See for example G Allen ‘This picture of Angela Wrightson's “snapchat killers” is all we will ever see of them’ (London: Mirror, 7 April 2016).

167 Attorney General Seeks Evidence on the Impact of Social Media on Criminal Trials (AG's Office, 15 September 2017), available at https://www.gov.uk/government/news/attorney-general-seeks-evidence-on-the-impact-of-social-media-on-criminal-trials (last accessed 29 August 2019).

168 K McLeod and J Dunnett ‘Woman arrested for “revealing identity” of teen charged with raping and murdering Alesha MacPhail’ (Daily Record, 18 July 2018), available at https://www.dailyrecord.co.uk/news/scottish-news/woman-arrested-revealing-identity-teen-12890614 (last accessed 29 August 2019). Aaron Campbell was identified as McPhail's killer on 21 February 2019 after a court order to protect his identity was lifted a day after he was convicted of murder.

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174 ‘Murder victim Bijan Ebrahimi endured absue and threats’ (BBC, 28 November 2013), available at https://www.bbc.co.uk/news/uk-england-25017802 (last accessed 29 August 2019).

175 The Paedophile Information Exchange was picketed by the National Front in the 1970s. One disastrous incidence of anti-paedophile sentiment was the targeting of Yvette Cloete, a paediatrician, in 2000. It seems that the protesters had confused Cloete's profession with paedophilia: see R Allison ‘Doctor driven out of home by vigilantes’ (The Guardian, 30 August 2000) available at https://www.theguardian.com/uk/2000/aug/30/childprotection.society (last accessed 29 August 2019).

176 Named after Sarah Payne, a schoolgirl who had been abducted and murdered by Roy Whiting, a convicted sex offender, in July 2000. This legislation proposed to grant the police the power to disclose information of known sex-offenders in the local area. See Wardle, C ‘Monsters and angels: visual press coverage of child murders in the USA and UK, 1930–2000’ (2007) 8 Journalism 263CrossRefGoogle Scholar at 278.

177 ‘“Paedophile hunter” evidence used to charge 150 suspects’ (BBC, 10 April 2018), available at https://www.bbc.co.uk/news/uk-england-43634585 (last accessed 26 February 2019).

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180 For further discussion see Helm, R ‘Conviction by consent? Vulnerability, autonomy, and conviction by guilty plea’ (2019) 83 The Journal of Criminal Law 161CrossRefGoogle Scholar.