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Published online by Cambridge University Press: 28 October 2019
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.
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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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).
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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.
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