Wednesday, November 16, 2005

Death and certainty

How much formalism is too much? In interpreting statutes, to resolve an ambiguity, judges may focus on the context of the problematic phrase: the paragraph, subsection, and the placing of the section in the scheme of the Act, are considered. In addition, standard tools of interpretation, such as ejusdem generis, and noscitur a sociis, may be used.

Another approach, which may be used in conjunction with this formalistic method, or as an alternative, is the purposive, or pragmatic approach. According to this, the meaning of ambiguous legislation should be determined by reference to what would promote or further Parliament’s purpose in enacting the provision.

There is no consistency in approach to interpreting ambiguous criminal legislation. For example, in R v Secretary of State for the Home Dept; ex p Pierson [1998] AC 539, Lord Steyn said at 585:

"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, ie one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary’s function is strictly ‘a sentencing exercise’. The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man."

And, in R v Karpavicius [2002] UKPC 59 (PC) Lord Steyn said, para 15:

"…In a more literalist age it may have been said that the words of s 6(2A)(c) [of the Misuse of Drugs Act 1975[NZ]] are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3rd ed), 1995, pp 172-175; Ashworth, Principles of Criminal Law (3rd ed), 1999, pp 80-81. This is reinforced by s 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose."

We must, then, wonder whether Lord Steyn has consistently taken this pragmatic approach in Smith v The Queen (Jamaica) [2005] UKPC 43 (14 November 2005). Here, the Privy Council split 3-2 on a question of interpretation, and Lord Steyn was part of the majority.

The issue in Smith was the meaning of the phrase "in the course or furtherance of" in the definition of capital murder in Jamaica. There, capital murder (ie where the sentence may be death) occurs where murder is committed "in the course or furtherance of … burglary or housebreaking" (s 2(1)(d) of the Offences Against the Person Act 1864, as amended in 1992).

The facts of Smith were refreshingly brief; they were summarised in the minority judgment, para 18, as "The appellant stood on a ladder against the outside of the deceased's house at night, pulled aside a curtain and a piece of plastic in a window, inserted his head and upper body through the window and struck the deceased a number of blows with a machete as she lay in her bed under the window."

There was no doubt that his entry with felonious intent constituted burglary. The question was whether the murder was in furtherance of the burglary. He committed the burglary with intent of murdering. The minority considered that the murder was therefore committed in the course of or in furtherance of the burglary. This, one might have thought, is the ordinary and natural meaning of the phrase. But no; another interpretation is possible: the offender had a single purpose of murder, and the burglary was in furtherance of the murder, not the other way around, so the murder was not within the definition of capital murder. This was the majority view.

There are two competing public policy justifications. The minority refer, para 23, to the purpose of the section as being:

"…to protect citizens from being murdered in their own homes by intruders who break in at night and to deter offenders from committing such murders. We consider that the legislature could not have intended that an intruder who broke into a house, which he believed to be unoccupied, for the purpose of stealing therein and then, coming upon the occupier, killed him or her, should be guilty of capital murder, but that a person who broke into a house with the express purpose of killing the occupant and did so should not be guilty of capital murder."

On the other hand, the majority refer, para 8 to:

"The vice in these cases, which was thought by …[Parliament] to justify the death penalty, was that the defendant resorted to killing his victim in the course or furtherance of committing the [lesser offence]. It was the wanton and cynical nature of the killing, the debasing in the context of a comparatively minor criminal act of the value that is to be attached to human life, that was regarded as particularly reprehensible."

The majority adhered to authority that required a "duality of purpose" before capital murder was committed: Lamey v The Queen [1996] 1 WLR 902 (PC). Such adherence to precedent is an illustration of formalism being dominant over pragmatism: see Thomas, "The Judicial Process" (2005). Thomas would remove all formalism from the law, whereas the current approach of courts is to employ either formalism, pragmatism, or a blend of them both, as seems appropriate.

This is also illustrated in Lamey, where the Board (which again included Lord Steyn) considered the interpretation of another paragraph of s 2(1) of the Jamaican legislation. This one, (f), includes within the definition of capital murder, any murder committed in furtherance of an act of terrorism. The unanimous judgment refers to the approach to penal statutes:

"6. The starting point in any consideration of section 2(1)(f) must be the fact that its object was to reduce the categories of murder which attracted the death penalty. It follows that a construction which produces little or no reductive effect is unlikely to be correct. Furthermore regard must be had to the general principle that a person should not be penalised and in particular should not be deprived of life or freedom unless under clear authority of law (Bennion's Statutory Interpretation, 2nd Edn. page 574)."

Note the slightly more restrictive approach endorsed here, compared with that taken in Karpavicius, above. In Lamey the conclusion was that paragraph (f) required two intents:

"8. … In their Lordships' view the paragraph requires there to be a double intent on the part of the murderer namely an intent to murder and an intent to create a state of fear in the public or a section thereof."

In Smith, this approach was applied to paragraph (d), and this reasoning is an example of formalist analysis.

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