Architecture of Common Ground

The Architecture of Common Ground: When Shared Facts Are Ignored

BY: OMOLAJA MAKINEE

Every criminal case, no matter how adversarial, contains areas of convergence. Beneath the contested narratives, beneath the rhetorical positioning, there are facts both sides do not dispute. These are not strategic concessions. They are structural anchors. They form what the law recognises as common ground.

In the narrative examined in Opinion Over Truth, the common ground was not minor. It was extensive. And it was precisely this common ground that should have formed the backbone of an agreed-facts statement. Instead, opinion appeared to eclipse it.

Here I do not criticise individuals. I examines structure. I interrogates how a case can drift from shared factual territory into interpretative construction—and how that drift can distort justice.

1. The Established Common Ground

From the narrative, the following points were not meaningfully in dispute:

1. An age-gap relationship existed. The relationship was acknowledged. It was not clandestine in structure. Age disparity, in itself, is not criminal.
2. Parental consent to marry existed. Consent from a parent is not a trivial fact. It signals family awareness and approval of the relationship’s trajectory toward marriage.
3. The partner attended a special school and struggles with reading and writing. This establishes educational and literacy context—not incapacity. It frames vulnerability in communication, not in autonomy.
4. The couple lived together. Cohabitation reflects relational continuity. It is inconsistent with a covert or transient encounter narrative.
5. The partner did not lack mental capacity to sexual relations. Capacity is central. Where capacity exists, the legal architecture surrounding consent changes fundamentally.
6. There was no allegation of sexual offence from the partner. This is critical. The non-complaining witness did not allege sexual wrongdoing.
7. The prosecution case rested substantially on opinion evidence. Interpretation, characterisation, and inference formed the prosecutorial theory rather than direct complaint.
8. A marriage date was set for February 2017, and an engagement ring had been purchased. Engagement, planning, and material preparation for marriage signal forward intention inconsistent with exploitative framing.

2. Additional Common Ground Emerging from the Narrative

Beyond the explicitly stated points, the narrative suggests further areas of convergence:

9. The relationship was ongoing rather than episodic. There was continuity, not isolated contact.
10. There was no contemporaneous complaint at the time of cohabitation.
11. The partner was not removed from the relationship by emergency intervention at the time of cohabitation.
12. The defendant did not conceal his identity or whereabouts.
13. The social and familial context was aware of the relationship’s existence.

Each of these reinforces the same structural reality: this was not a hidden predatory scenario constructed in secrecy. It was a visible, socially situated relationship.

3. What Common Ground Is Supposed to Do

Under section 10 procedure, agreed facts serve a vital purpose:

• They narrow dispute.
• They prevent unnecessary contest.
• They clarify what the jury must actually decide.
• They protect against narrative inflation.

Common ground is not decorative. It is juridical scaffolding.

When properly articulated, it protects the defendant and the prosecution alike. It ensures that the dispute is precise. It prevents emotive expansion beyond what is genuinely contested.

In this case, the common ground was not peripheral—it was foundational.

4. The Structural Shift: From Fact to Framing

Instead of centring these shared realities, the narrative suggests a structural pivot occurred. Rather than asking:

“Given these common grounds, what remains legally in dispute?”

The framing of ‘agreed facts’ appears to have shifted toward interpretative opinion—particularly around motivation and characterisation. This is where the doctrine of ultra vires becomes conceptually relevant—not in the narrow administrative sense, but structurally.

When opinion supplants undisputed fact as the engine of prosecution, the process risks exceeding its proper bounds. The criminal trial is empowered to determine disputed fact. It is not empowered to erase agreed reality in favour of interpretative reconstruction.

5. Why Common Ground Matters So Profoundly Here

Consider the cumulative force of the shared facts:

• Capacity exists.
• No complaint from the partner.
• Parental consent to marry.
• Engagement ring purchased.
• Marriage date set.
• Cohabitation.
• Educational difficulty but not incapacity.

Individually, each is significant. Together, they form a relational architecture inconsistent with predatory framing. That does not end legal inquiry—but it shapes it.

When such common ground exists, the question for a jury should be tightly defined. Instead, if the common ground is diluted or overshadowed by opinion evidence, the jury’s cognitive entry point changes.

They begin not with: “These are the facts both sides agree on.”

But with: “This relationship must be interpreted through suspicion.”

That shift is subtle—but decisive.

6. The Danger of Ignoring Common Ground

When common ground is ignored in ‘Agreed Fact’ statement:

1. The burden of proof becomes obscured.
2. Opinion acquires the weight of fact.
3. The defence is forced to rebut atmosphere rather than evidence.
4. The jury deliberates within a narrative already psychologically primed.

Common ground is the anchor that prevents drift. Without it, a case can become an interpretative exercise untethered from its own factual base.

7. Capacity and Autonomy: The Silent Core

One of the most striking elements of the common ground is this:

The partner did not lack mental capacity to engage in sexual relations.

Capacity is not partial. It is legal. Either it exists or it does not. Where capacity exists, autonomy carries legal weight. When a case proceeds on the basis of opinion while capacity is undisputed, the tension becomes acute.

Is the trial about incapacity—or about discomfort with the optics of the relationship?

That distinction matters.

8. Engagement and Intent

The existence of a purchased engagement ring and a set marriage date for February 2017 is not sentimental detail. It is evidence of declared intention. Premeditation in criminal law often connotes calculated harm. Here, the only premeditation evidenced in common ground is premeditation to marry.

That distinction is not rhetorical—it is structural.

9. The Role of Agreed Facts

If the common ground in this case had been properly crystallised into an agreed-facts statement, the jury would have entered deliberation with clarity:

• The relationship existed.
• Capacity existed.
• No complaint was made.
• Marriage was planned.
• Cohabitation occurred openly.
• Parental consent existed.

From that base, the jury could evaluate whatever remained genuinely disputed. Instead, where opinion displaces that base, the evaluative order reverses.

10. Structural Reform: Restoring the Primacy of Common Ground

This case illustrates a broader reform question:

• Should courts require an explicit articulation of all undisputed relational facts?
• Should juries be formally directed to treat agreed facts as their starting framework?
• Should opinion evidence be tightly filtered where it contradicts established common ground?

These are not partisan suggestions. They are procedural stabilisers. The adversarial system functions best when:

1. Common ground is explicit.
2. Disputed issues are narrow.
3. Opinion does not eclipse fact.
4. The burden of proof remains visible.

Conclusion: Common Ground as Constitutional Compass

Common ground is not a concession. It is the constitutional compass of a trial.

In the narrative examined in this book, that compass existed. It was extensive. It was coherent. It was relationally consistent. To sideline it in favour of opinion-driven framing risks structural overreach—ultra vires in spirit if not in formal declaration.

Justice is not achieved by amplifying suspicion. It is achieved by starting where both sides stand together—and only then identifying where they part.

When common ground is honoured, trials become precise. When it is ignored, they become interpretative. And interpretation, untethered from agreed fact, is a fragile foundation upon which to rest a conviction.

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