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Northumbria Research Link Northumbria Research Link Citation: Dargue, Paul (2016) The Impartiality of the England and Wales Court of Appeal (Criminal Division): A Quantitative Analysis. Doctoral thesis, Northumbria University. This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/id/eprint/33939/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. Full items must not be sold commercially in any format or medium without formal permission of the copyright holder. The full policy is available online: http://nrl.northumbria.ac.uk/policies.html The Impartiality of the England and Wales Court of Appeal (Criminal Division): A Quantitative Analysis P Dargue PhD 2016 1 The Impartiality of the England and Wales Court of Appeal (Criminal Division): A Quantitative Analysis Paul Dargue A thesis submitted in partial fulfilment of the requirements of the University of Northumbria at Newcastle for the degree of Doctor of Philosophy October 2016 2 Abstract This thesis analyses the development, methodology, and results of a quantitative study of the decision-making of the England and Wales Court of Appeal (Criminal Division). The Court of Appeal plays an important constitutional role, and the impartiality of the judges is central to its legitimacy. Drawing upon research from the Empirical Legal Studies (ELS) research community, this thesis explores the question of the Court of Appeal’s impartiality. As an incomplete measurement of impartiality, a sample of the Court of Appeal’s decisions has been analysed. A dataset of all murder and rape appeals against conviction decided between 2006 and 2010 has been created. A range of factual, demographic, and legal variables have been collected from each of these 472 appeals against conviction, utilising quantitative content analysis. It has been determined, utilising binary logistic regression analysis, whether the variables under analysis are predictors of the outcome of appeals against conviction. Almost all of the variables analysed showed only a limited ability to predict the outcomes of appeals. Moreover, this study finds support for the legal model of judicial decision-making. A variable designed to capture impartial decision- making had the strongest association with the outcome of appeals. However, a small number of factual and demographic variables are shown to be predictors of outcomes. There is insufficient evidence to doubt the impartiality of the Court of Appeal, but the emergence of these patterns in the data warrants further investigation. This conclusion is important to users and observers of the Court, to whom the impartiality, and so legitimacy, of the Court’s decision-making is essential. 3 Contents Abstract ............................................................................................................. 3 Contents ............................................................................................................ 4 List of Tables and Figures................................................................................ 9 Acknowledgments .......................................................................................... 11 Author’s Declaration ....................................................................................... 12 Chapter 1: Introduction .................................................................................. 13 1.1 The aims of this thesis ............................................................................. 13 1.2 The importance of impartiality .................................................................. 18 1.3 An analysis of murder and rape appeals against conviction .................... 21 1.4 Thesis overview ....................................................................................... 22 1.5 Conclusion ............................................................................................... 23 Chapter 2: The Concept of Impartiality ......................................................... 24 Introduction .................................................................................................... 24 2.1 The constitutional role of judges .............................................................. 25 2.2 The rule of law paradigm and the legal model ......................................... 27 2.3 What is impartiality? ................................................................................. 32 2.4 Judicial discretion and impartiality ........................................................... 35 2.5 Independence and impartiality ................................................................. 41 2.6.1 The problematics of subjective impartiality ........................................... 43 2.6.2 The problematic of diversity ............................................................... 44 2.6.3 Psychology and impartiality ............................................................... 49 2.7 Objective impartiality ................................................................................ 51 2.8 Conclusion ............................................................................................... 55 4 Chapter 3: Mapping the Empirical Legal Studies Field ............................... 57 Introduction .................................................................................................... 57 3.1 An explorative positivistic study of judicial decision-making .................... 58 3.2 Objectivity ................................................................................................ 62 3.3 American Legal Realism .......................................................................... 63 3.4 New Legal Realism .................................................................................. 70 3.5 Behavioural models of judicial decision-making ...................................... 73 3.6 Post-attitudinal models of judicial decision-making .................................. 80 3.7 The relationship between this thesis and previous judicial behaviour studies ...................................................................................................................... 85 3.8 Conclusion ............................................................................................... 87 Chapter 4: The England and Wales Court of Appeal (Criminal Division) ... 89 Introduction .................................................................................................... 89 4.1 Purposes and function of the Court of Appeal ......................................... 90 4.2 Criminal justice system statistics ............................................................. 95 4.3 A short history of the Court’s powers ..................................................... 102 4.4 Analysis of the ‘unsafety test’ ................................................................ 112 4.5 The meaning of unsafety ....................................................................... 116 4.6 Procedural irregularities and unfairness ................................................ 119 4.7 Fresh evidence appeals ......................................................................... 124 4.8 Lurking doubt appeals ........................................................................... 129 4.9 Conclusion ............................................................................................. 131 5 Chapter 5: Study Design, Data Collection and Methods of Analysis ....... 132 Introduction .................................................................................................. 132 5.1 Quantitative content analysis ................................................................. 132 5.2 Measuring impartiality ............................................................................ 136 5.3 Impartiality and its ‘observable implications’ .......................................... 137 5.4 The role of law in the decision-making process ..................................... 145 5.5 The fundamental problem of causal inference ....................................... 148 5.6 Hypothesis testing, the p-value, and statistical significance .................. 151 5.7.1 Parameters of sampled appeals ......................................................... 155 5.7.2 Parameters of sampled murder appeals against conviction ............ 158 5.7.3 Parameters of sampled rape appeals against conviction ................ 160 5.8 Binary logistic regression ....................................................................... 164 5.9 Conclusion ............................................................................................. 169 Chapter 6: Evaluation of Variables and Methods of Study........................ 171 Introduction .................................................................................................. 171 6.1.1 The dependant variable ...................................................................... 172 6.1.2 Factual and demographic
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