Overcoming the void

As everyone knows, the law of Scotland has its origins in Roman-Dutch law. Its technical language can look a little strange to English jurists. A recent Privy Council decision on Scottish law illustrates how light can be shed on common issues. Here, in Ruddy and others v Procurator Fiscal [2006] UKPC D2 (6 February 2006), the Judicial Committee leant heavily on the expertise of Lord Rodger, all members agreeing with his opinion.

I will describe the case, insofar as I can, in English.

If a judicial proceeding is fundamentally flawed, so that in oft-used terminology it may be called "null and void", or "a nullity", may its result nevertheless be regarded as final?

These appeals concerned convictions and sentences that had been imposed by a tribunal that had no jurisdiction to act. They therefore, it was agreed, were in breach of the appellants’ rights to a "hearing" under s 6 of the ECHR. They had delayed 2 years before complaining of that by bringing the actions that resulted in these appeals.

Two concepts that operate in the context of errors are waiver and acquiescence. Waiver is active, and acquiescence is passive, acceptance that the error does not matter. They can operate where there is delay in seeking a remedy. In the absence of an applicable time limit on seeking redress, action must be taken within a "reasonable" time, as policy favours finality and stability. Acquiescence may be inferred from delay and the circumstances of the case (see paras 28, 37, 38, 46).

Here, if objection had been taken promptly, re-hearings could have been ordered before properly constituted tribunals and proper convictions would, inevitably, have been obtained (para 41). If a remedy was now allowed, justice might not be done in view of the effect of the passage of time.

Lord Rodger pointed to examples where errors causing the proceedings to be a "nullity" were nevertheless cured by acquiescence (para 48). Central to the acceptability of this is reasoning along these lines: a defect can be waived before the conclusion of the proceeding, so there is no reason why acquiescence after it cannot be effective (para 50). Lord Carswell elaborated this at para 58, "…in either case … [the defendant] is representing, expressly or tacitly, that the court is acceptable to him …".

In essence, a flaw in the proceedings can be waived or acquiesced in, even if it is fundamental.

This is potentially relevant to a proceeding which the Supreme Court of New Zealand will hear this week: Hansen v R (previously noted in these blogs on 19 September 2005). If the Court decides that the reverse onus provision in question, s 6(6) of the Misuse of Drugs Act 1975, puts merely an evidential, not a legal, burden of proof on the defence, questions may arise about convictions that have been incurred in trials where juries have been directed differently. While a misdirection on the standard of proof will normally result in the quashing of a conviction, it is, arguably, not so fundamental an objection as lack of jurisdiction by the tribunal. Nevertheless, given that it was possible to anticipate that the New Zealand law on reverse onuses would be brought into line with English law, can it now be said that people who were convicted before the change (assuming, of course, that Hansen does change the law) acquiesced in the error?

A straightforward solution to this would be to say that Hansen changes (again, assuming that it will change) the law from the date it is decided, and that earlier trials (but not Hansen’s, as these are still his proceedings) where heard under the law as it was then correctly understood to be.