Fundamental difficulties

New Zealand has not been served well by the Privy Council in the last criminal appeal it will hear from this country. It is alarming that some of the most senior judges differ over recognising the fundamental attributes of a fair trial. In Howse v R [2005] UKPC 31 (19 July 2005) the Judicial Committee consisted of three Law Lords and two retired Lords Justice of Appeal, the Rt Hon Sir Swinton Thomas, and the Rt Hon Sir Andrew Leggatt. The Court split 3-2. Lord Rodger, the most senior of these Law Lords, dissented. The majority Law Lords were Hutton and Carswell. The other members were also divided, Sir Swinton Thomas being with the majority. The absence of Lords Bingham, Nicholls and Steyn from this Board could be said to significantly reduce the status of the case.

Fairness is a broad and not always easy to define concept. But lawyers like to attack such concepts and break them down. So, there are, I suggest, two kinds of trial unfairness. The first is procedural unfairness, and this may or may not give rise to the second kind, substantive unfairness. Alternatively, substantive unfairness may exist without there also being procedural unfairness. Either kind of unfairness amounts to a substantial miscarriage of justice, requiring the quashing of conviction and (usually) an order for a new trial.

Procedural unfairness occurs where the accused is deprived of the right to have the facts determined by an unbiased tribunal that applies the law correctly. By “unbiased” I mean to include juries that are not impartial because of some misdirection on the law by the judge. This might be, to give just a few examples, a misdirection on the use of propensity evidence, on the burden of proof, on the defendant’s right to silence, or on the need for caution in relation to particular evidence. Such errors could affect a juror’s assessment of the evidence against the defendant. These are not in the category of errors called substantive because they do not involve the ingredients of the alleged offence or, as one might say, the substance of the charge. More obvious procedural errors can occur before a trial, for example where there has been a failure of disclosure by the prosecutor, or where  an impropriety in the obtaining of evidence was such that the evidence was wrongly admitted at trial. There may, nevertheless, be some errors that do not give rise to unfairness if it can properly be said that they were of no consequence in the overall context of the trial. The critical issue in Howse was whether the errors that occurred were of no consequence in this sense.

Substantive unfairness occurs where the accused has, through errors at trial, or through the unavailability of evidence that subsequently comes to hand, been improperly deprived of a fair chance of an acquittal. For example, the jury may have been wrongly directed, or not directed at all, on the elements of the alleged offence, or on the burden and standard of proof, or on a defence. 

It would be wrong to confuse the question of fairness of either kind with the question of guilt. But in Howse the Privy Council majority did just that.

The majority in Howse thought that, because the properly admissible evidence of guilt was overwhelming, there was no substantive unfairness. They also held that there was no procedural unfairness because the errors were inconsequential, and therefore the trial was fair.

The minority in Howse carefully analysed the significance of the improperly admitted evidence in the context of the trial. The Crown had decided to run its case relying on motive to establish that the accused, and not his partner, was the murderer. The Crown had obtained a pre-trial ruling that evidence of motive was admissible, and, bearing in mind the importance of that evidence for the prosecution case, it was impossible (said the minority, para 68) for the Crown to now argue that the evidence was insignificant. The trial judge had referred to it as being significant when she summed up the case to the jury (para 65). In fact, the Court of Appeal held that the evidence of motive was inadmissible, and this finding was not challenged before the Privy Council. The minority held that the trial had been unfair because the accusation of motive, central to the Crown’s case, was not supported by any admissible evidence.

The majority reasoned that, if the errors at trial had not occurred, the Crown’s case was so compelling that a conviction was inevitable, therefore the trial had been fair. In the context of the case, said the majority, the errors were not radical or fundamental enough to deprive the accused of a proper trial (para 40).

A potential difficulty exists in the view of all members of the Board (paras 37 and 54) that a high threshold must be crossed before a finding of trial unfairness can be made. This, it is suggested, should not be taken to mean that a reasonably high level of unfairness will be tolerated before it amounts to a substantial miscarriage of justice. Rather, it should be taken to mean that the courts will scrutinise claims of unfairness very carefully before accepting that unfairness occurred.

Howse is a lesson in the dangers of emphasising substantive fairness at the expense of procedural fairness. The majority made the mistake of applying, to the issue of whether there was procedural unfairness, the criterion for substantive unfairness. There may always be a dispute over whether Mr Howse received "the kind of trial which the law expects that an accused should have" (para 47).