"Unfair to try" or "to try unfairly"?

Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006) illustrates the difference between the questions, (i) whether the trial was, or would be, fair, and (ii) whether it would be fair to put the accused on trial. The case also illustrates how easy it is to confuse these questions.

In Mauritius, the right to a fair trial is expressed, in s 10(1) of the Constitution, in a phrase giving the right to a “fair hearing within a reasonable time by an independent and impartial court established by law”. This has given rise to the question whether an accused can only complain of delay if it has adversely affected his right to a fair hearing. (In contrast, the New Zealand Bill of Rights Act 1990, s 25(b), isolates the right to trial without undue delay, from the separate right to a fair hearing in s 25(a)).

This question, which also arises under Art 6(1) of the ECHR, was resolved by the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, where it was held that a breach of the right to a hearing without undue delay can be established without the accused having to show that the trial would be unfair. Consequences of a breach of each right need not, therefore, be the same. In Boolell the Privy Council noted that Lord Bingham in Attorney-General’s Reference (No 2 of 2001) had “quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432: "The right is to trial without undue delay; it is not a right not to be tried after undue delay."” That is to say, undue delay does not give rise to a right not to be tried at all.

On the question of remedies, the Privy Council in Boolell followed Attorney-General’s Reference (No 2 of 2001), holding that a stay of proceedings is not appropriate unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the accused (para 31).

I have emphasised the word “otherwise” here to make the point that trial unfairness is only a subset of the set of occasions where it would be unfair to try the accused. In para 38 of Boolell, Lord Carswell, delivering the judgment of their lordships, confuses this point. He deals with a submission that the trial was unfair by applying criteria relevant to fairness in the “otherwise” sense. The “test” – as Lord Carswell called it - as laid down by Lord Bingham at para 25 of Attorney-General’s Reference (No 2 of 2001), is:

“25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.”

Lord Bingham is not here talking about cases where the trial would be unfair. Lord Carswell’s slip highlights the fact that criteria for determining the fairness of a hearing have yet to be established. My view is that the fairness of a hearing is to be determined by whether it would involve a biased determination of the facts, or an inaccurate application of the law to the facts. Delay may give rise to an unfair trial if it results in the unavailability of witnesses or evidence that could assist the defence. The matters relied on by counsel for the appellant in Boolell, para 38, seem not to involve delay but rather to focus on aspects of the actual conduct of the trial (its length, its interruptions, restrictions imposed on the conduct of the defence, and comments made by the judge that suggested bias). The Privy Council may well have been correct to conclude that, in the circumstances of this case, these did not amount to trial unfairness. In holding that the appellant’s right to a trial within a reasonable time had been breached (para 37), the appropriate remedy was the declaration of the breach and the quashing of the sentence of imprisonment, with a fine being substituted, although complexities concerning how the quantum should be calculated are not explored.