Friday, January 20, 2006

Three major themes

Three topics of general interest were touched upon by the Privy Council in Grant v R (Jamaica) [2006] UKPC 2 (17 January 2006): (1) the interrelationship between the right to a fair trial, and the balancing of constituent rights; (2) the discretion to exclude evidence where its prejudicial effect exceeds its probative value, and the relationship of this discretion to the right of the accused to a fair trial; and (3) whether the proviso can be applied to dismiss an appeal when potentially significant evidence was never before the jury (including, on the facts of this case, an illustration of what is "potentially significant" evidence).

Right to a fair trial, and balancing

The Privy Council referred to laws similar to those in effect in Jamaica, including decisions of the European Court of Human Rights. The established model is that the accused’s right to a fair trial is absolute, but rights that are subsidiary to that are subject to balancing against each other. See Mathias, "The Accused’s Right to a Fair Trial: Absolute or Limitable?" [2005] New Zealand Law Review 217.

At para 17 of Grant, the Privy Council put it this way:

"The Strasbourg court has time and again insisted that the admissibility of evidence is governed by national law and that its sole concern is to assess the overall fairness of the criminal proceedings in question: see, for example, Kostovski v Netherlands (1989) 12 EHRR 434, para 39; Windisch v Austria (1990) 13 EHRR 281, para 25; Lüdi v Switzerland (1992) 15 EHRR 173, para 43; Saidi v France (1993) 17 EHRR 251, para 43; Doorson v Netherlands (1996) 22 EHRR 330, para 67; PS v Germany (2001) 36 EHRR 1139, para 19. The specific rights set out in article 6(3) of the European Convention (and thus, by analogy, section 20(6) of the [Jamaican] Constitution [see below]) are "specific aspects of the right to a fair trial" (Kostovski v Netherlands, above, para 39) or "particular aspects of the right to a fair trial" (Doorson v Netherlands, above, para 66), and the right to a fair trial can never be compromised in any circumstances. But the constituent rights in article 6 and section 20(6) are not themselves absolute: Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 704. The Strasbourg court has been astute to avoid treating the specific rights set out in article 6 as laying down rules from which no derogation or deviation is possible in any circumstances. What matters is the fairness of the proceedings as a whole."

Section 20(6) provides:

"(6) Every person who is charged with a criminal offence—
(a) shall be informed as soon as reasonably practicable, in a language which he understands, of the nature of the offence charged;
(b) shall be given adequate time and facilities for the preparation of his defence;
(c) shall be permitted to defend himself in person or by a legal representative of his own choice;
(d) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses, subject to the payment of their reasonable expenses, and carry out the examination of such witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(e) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the English language."

These, then, are capable of being compromised in the balancing exercise, which the Privy Council described in Grant (also in para 17) as follows:

"Just as section 13 of the Constitution recognises that individual rights cannot be enjoyed without regard to the rights of others, so the Strasbourg court has recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, and has described the search for that balance as inherent in the whole Convention: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, para 52; Brown v Stott, above, p 704. Thus the rights of the individual must be safeguarded, but the interests of the community and the victims of crime must also be respected. An example, not based on the present facts, illustrates the point. In Jamaica, as in England and Wales, as already noted, the statement of a witness may be adduced in evidence if he is shown to have absented himself through fear of the consequences to him if he gives evidence. In the case of a prosecution witness, such fear is likely to have been induced by or on behalf of a defendant wishing to prevent adverse evidence being given. As observed by Potter LJ in R v M(KJ) [2003] EWCA Crim 357, [2003] 2 Cr App R 322, para 59, echoed by Waller LJ in R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257, paras 36, 52-53, it would be intolerable if a defendant shown to have acted in such a way could rely on his human rights under article 6 (or section 20) to prevent the admission of hearsay evidence. Where a witness is unavailable to give evidence in person because he is dead, or too ill to attend, or abroad, or cannot be traced, the argument for admitting hearsay evidence is less irresistible, but there may still be a compelling argument for admitting it, provided always that its admission does not place the defendant at an unfair disadvantage."

Obviously, where the need to ensure fairness to the accused is paramount, as clear a definition, as is possible, of fairness needs to be established. It is on this central point that further elaboration is needed. I have suggested, in the article referred to above, that a fair trial meets two essentials: (1) there is an opportunity for the jury properly to apply the law, and (2) that application of the law is to the facts determined without bias.

The concern in Grant was whether the admission of the hearsay evidence would create bias against the accused by undermining his ability to challenge that evidence; whether, in other words, admission of the hearsay statement created an inequality between the prosecution and the defence.

The Board carefully set out the safeguards that the law provided for accused persons faced with such hearsay evidence (para 21). These included strict criteria for establishing the unavailability of the witness as a precondition for admission of his written statement, enhanced rights of the defence to call evidence to challenge the truthfulness of the evidence, and a need for the judge to give special directions to the jury cautioning them on what weight to give the hearsay evidence. Also among these safeguards is the next topic to be considered here: the discretion to exclude the evidence where its prejudicial effect exceeds its probative value.

Probative value and prejudicial effect

I have recently written on this topic: "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8. In essence, my point is that the discretion to reject evidence on this ground, which involves a so-called balancing of probative value against prejudicial effect, is flawed because the balancing, or weighing, notion suggests that only a high level of unfairness to the accused will outweigh highly probative evidence. That in turn suggests that trial fairness doesn’t matter so much if the accused is obviously guilty. The real question, I suggest, is whether the evidence has sufficient probative value to be admissible bearing in mind the law’s reluctance to allow hearsay evidence; if it does have sufficient probative value, then it is admissible, subject to the trial still being fair for the accused.

The Privy Council has taken this approach in Grant, para 21:

"Section 31L acknowledges the discretion of the court to exclude evidence if it judges that the prejudicial effect of the evidence outweighs its probative value. In R v Sang [1980] AC 402, some members of the House of Lords (notably Lord Diplock at pp 434, 437 and Viscount Dilhorne (pp 441-442)) interpreted this discretion narrowly, and in Scott v The Queen [1989] AC 1242, 1256-1257, the Board appears to have accepted that reading. It is not, however, clear that the majority in R v Sang favoured a similarly narrow interpretation (see Lord Salmon at pp 444-445, Lord Fraser of Tullybelton at p 449 and Lord Scarman at pp 453, 454, 457). In any event, it is, in the opinion of the Board, clear that the judge presiding at a criminal trial has an overriding discretion to exclude evidence which is judged to be unfair to the defendant in the sense that it will put him at an unfair disadvantage or deprive him unfairly of the ability to defend himself. Such a discretion has been recognised by the Court of Appeal in R v Donald White (1975) 24 WIR 305, 309, and R v Michael Barrett, above. It has been recognised by the Board in Scott v The Queen, above, pp 1258-1259 and Henriques v The Queen [1991] 1 WLR 242, 247: both these appeals concerned the admission of depositions, but the need for a judicial discretion to exclude is even greater when the evidence in question has never been given on oath at all. In England and Wales, the discretion has been given statutory force: see section 25(1) of the Criminal Justice Act 1988; R v Lockley [1995] 2 Cr App R 554, 559-560; R v Gokal [1997] 2 Cr App R 266, 273; R v Arnold [2004] EWCA Crim 1293, para 30. Conscientiously exercised, this discretion affords the defendant an important safeguard."

Thus, whether one takes a broad or a narrow approach to the so-called balancing, or weighing, of probative value against prejudicial effect, doesn’t matter, because the overriding criterion is whether admission of the evidence would make the trial unfair for the accused.

In para 26 of Grant the Board analysed the circumstances of the trial and gave reasons for their conclusion that the admission of only one of two hearsay statements caused unfairness to the accused. Grant was accused of murder. He had been approached by the victim in a threatening manner while urinating by some bushes at night. He claimed the person had a gun. He took out his own gun and fired at the victim several times. The victim turned and ran. Grant chased him and fired several shots again. The evidence diverged crucially at this point: the hearsay statement that was admitted in evidence was of a witness, Bryant, who said he saw the victim lying face down on the ground when he was approached and shot several times. The victim died from wounds he had received in the back. Grant denied approaching the victim and shooting him like that, saying in evidence that he fired after him because he thought he was still at risk of attack: he relied on self defence. A hearsay statement by another person, Kinglock, was excluded from evidence. It would have confirmed the first part of the episode: someone approaching Grant while he was urinating, then shots being heard and the person running and throwing something (this, if Grant’s evidence had credibility, would have been a gun) away.

In summary, the trial was unfair because (para 26):

"It is, in the Board's opinion, plain that fairness required the admission of Kinglock's statement. If admitted, it might not have been understood to exonerate the appellant. The proliferation of shots to the back of the deceased was a formidable problem for him to overcome. The jury might have convicted anyway, and been entitled to do so. But the jury should have known how, according to Kinglock, in large part corroborating the appellant, the incident began. The appellant was entitled to have his case assessed, and his own evidence evaluated, in the light of all the available evidence. … [the judge] could have invited prosecuting counsel to adduce Kinglock's statement in evidence. Had that invitation, improbably, been declined, the judge could, on grounds of fairness, have declined to admit Bryant's statement unless Kinglock's statement were also admitted or could, in the last resort, have introduced the statement of Kinglock herself (R v Oliva [1965] 1 WLR 1028, 1035-1036). … The Crown having given the defence notice of its intention to adduce the statement of Kinglock as well as the statement of Bryant at the trial, defence counsel appears to have been taken by surprise when on the second day of the trial prosecuting counsel applied to adduce the statement of Bryant, but not that of Kinglock. … It was, however, the responsibility of prosecuting counsel and the trial judge to ensure that the proceedings were fair, and they failed to do so. This failure was compounded by an inadequate direction on Bryant's evidence. The jury were given no encouragement to scrutinise it with particular care, and were not alerted to apparent discrepancies between it and the evidence of Constable Wynter (or, of course, the statement of Kinglock)."

These points illustrate the two aspects of trial fairness: the need to avoid bias in the opportunity the jury has to determine the facts, and the need to ensure the jury has an opportunity correctly to apply the law.

The proviso

Finally, Grant illustrates consideration of whether to apply the proviso. That is, whether to dismiss the appeal against conviction notwithstanding that errors at trial had occurred. The statutory criterion is whether errors had amounted to a "substantial miscarriage of justice". The meaning of this phrase is critical, and it is still being worked out after over a century of consideration by courts in the common law countries.

As is usual, the proviso did not receive detailed treatment by the Board, which simply concluded, para 27:

"It would not be appropriate to apply the proviso in a case where potentially significant evidence was never before the jury."

This means that, in the context of Grant, the evidence of Kinglock was "potentially significant", even though "it might not have been understood to exonerate the appellant" (para 26, above). It was corroboration of Grant’s version of how the incident started that was "potentially significant": "The appellant was entitled to have his case assessed, and his own evidence evaluated, in the light of all the available evidence" (ibid). This was so, even though the partial defence of provocation was not relied on. The second part of the incident, not covered in Kinglock’s evidence, would be most unlikely to be the basis for a successful defence of self defence, as the Board recognised: "The proliferation of shots to the back of the deceased was a formidable problem for him to overcome. The jury might have convicted anyway, and been entitled to do so" (ibid).

Plainly, the rationale for the application of the proviso, not elaborated by the Board, is that the trial was not fair. No matter how strong the case, an unfair trial cannot sustain a conviction.

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