The Judge as Bricoleur: Bricolage in decision-making in the criminal justice system

In this work I examine the approach of the courts to cases which depart from expected and anticipated norms. Using four case studies from areas where courts have had to respond to situations with which it may be unfamiliar, I explain how, if not properly guided, the courts risk relying on assumptions and beliefs which potentially jeopardise the rationality of the decision which is made. This question is considered in the particular contexts of (i) women who wear the Niqab in court; (ii) voice identification evidence; (iii) the offence of coercive control; and (iv) male victims of sexual assault. In my work, I illustrate how the unfamiliarity of decision-makers with each of these topics, when combined with the sociological and psychological factors which arise in these cases, creates the risk that decisions are being made which are not ‘rational’. In part, this is due to the structuralist nature of decision-making, or ‘bricolage.’ In my expository statement I will explain how a bricolage methodology enables analysis of this question. The four areas I have discussed are exemplars of four discrete areas which are outside the normal experience of decision-makers in criminal trials and serve as exemplars of how a bricolage approach is used to solve such problems and the shortcomings of this approach.