Friday, January 26, 2007

Propensity and logic

For my observations on the admissibility of propensity (similar fact) evidence under the
Evidence Act 2006[NZ], in the light of Bayes' Theorem and the requirements of logic,
Click here.

Friday, January 19, 2007

Stare decisis in the European Court

Some interesting points are illustrated in Young v United Kingdom [2007] ECHR 48 (16 January 2007). A prisoner was found to have been denied a fair disciplinary hearing, mainly because the Governor, who was the tribunal, was not appointed independently of the prosecuting agency, and also because no legal representation was made available to the prisoner. The European Court of Human Rights (Fourth Section), sitting as a Chamber, held unanimously that Article 6 of the European Convention on Human Rights had been breached; Judge Maruste delivered a separate concurring judgment in which he adhered to an earlier dissenting opinion he had expressed but distinguished it on the grounds that in the present circumstances a rigid application of prison rules had not been justified.

Dissenting judgments

The first point of interest, therefore, is to what extent judges should adhere to dissenting opinions that they have previously expressed. Judge Maruste’s dissent had been delivered in Ezeh and Connors v United Kingdom [2003] ECHR 485 (9 October 2003), and held that where the result of proceedings is to postpone release on parole, that is not the imposition of a new sentence, and it does not require a trial, or the sort of hearing that attracts the fairness requirements of Art 6. The majority held (para 123) that Art 6 did apply: “The reality … was that prisoners were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings which were legally unconnected to the original conviction and sentence.”

Even though the majority Grand Chamber decision in Ezeh and Connors was 11 to 6, in terms of the ratio of that case the point of law was decided: prison disciplinary proceedings that may result in postponement of release must be fairly conducted. Should Judge Maruste (and the other dissenters in Ezeh and Connors) obey the law by abandoning their previous dissenting opinions? One of the other members of the Court in Young, Judge Pellonpaa, had also dissented in Ezeh and Connors; he did not repeat his own dissenting opinion.

[Update: another example of a dissenting Judge not repeating his dissent is Lord Hoffmann in Gibson v USA (The Bahamas) (blogged 26 July 2007): he declined to join the majority in overruling a case in which he had dissented (Cartwright v Superintendent of HM Prison [2004] UKPC 10); among the reasons for his now approving the majority's view in Cartwright was the point that the decision supported public policy and international treaty obligations, and it was not unjust.]

When are proceedings “criminal”?

For the right to a fair hearing to apply under Art 6, the proceedings must be “criminal” (or, in New Zealand, for example, they must involve a charge of an offence: NZBORA, s 25). To decide whether proceedings are “criminal”, the European Court considers the way the matter is classified in the relevant State law, but that is subject to the Convention; the nature of the accusation, and, as a separate point, the severity of any penalty that may be imposed.

There is no room for doubting the application of the right to a fair hearing where domestic law is clear, as in New Zealand, where “offence” is defined in the Crimes Act 1961, s 2, as meaning “any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction on indictment or on summary conviction.” Any doubts here would have to concern what “punished” means. Where proceedings do not involve a risk of conviction, the rules of natural justice apply: Drew v Attorney-General [2002] 1 NZLR 58, (2001) 18 CRNZ 465 (CA).


Limitations on what amounts to waiver of convention rights were referred to in Young, at para 40. Waiver must be consistent with the public interest, it must be established in an unequivocal manner, and there must be minimum guarantees commensurate with the importance of the waiver. At para 41 the Court dealt with the question whether the applicant had waived her right to legal assistance as follows:

“According to the Government’s own account, the applicant was asked if she wished to have “help” at the hearing and the record of the adjudication indicated that, if she answered in the affirmative, she would be informed of the assistance and legal representation “possibilities”. There is therefore no indication she was in fact clearly offered legal representation for the hearing as opposed to the assistance of a friend/layperson. In addition, given the applicable domestic law and practice (outlined in the Ezeh and Connors judgment, §§ 59-62), any outline of the legal presentation “possibilities”, in the event of such an affirmative response from her, would not have indicated with any certainty that such representation would be available. Moreover, any choice would have been put to her at the adjudication hearing itself at which she was unassisted. Furthermore, she would have been required to respond to the Governor who conducted the hearing and who was charged with maintaining prison discipline and was responsible for the pursuit of the charges against her, for determining guilt or innocence and for fixing her sentence. The Court does not consider that, even accepting the Government’s submissions, the circumstances demonstrate that any choice by the applicant as regards legal representation could be considered unambiguous and free. Accordingly, and in so far as such a waiver would be permissible and not run counter to any important public interest, it is not established to have been unequivocal and accompanied by guarantees commensurate to its importance ….’

In New Zealand the requirements for effective waiver are under review. I have summarised recent developments in the text Misuse of Drugs, at para 1311, as follows:

"The giving of advice of rights to counsel is not to be an empty ritual .... In R v Kai Ji [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (CA) it was held that telling the suspect of the availability of free legal advice was integral to the existence of the right to be informed of the right to consult a lawyer under s 23(1)(b) of the Bill of Rights. This is a departure from the holding in R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA) that the police do not have to facilitate the exercise of this right unless the suspect indicates a wish to exercise it. Although Mallinson was decided by 5 Judges, and Kai Ji by 3 Judges of the permanent Court, it is clear that the latter were indicating a change in approach in view of the intervening introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000."

Effect of the breach is irrelevant to whether there was a breach of the right to a fair hearing

An important point, only recently settled in New Zealand law, is that the right to a fair hearing is a procedural right, and does not depend on proof of loss, such as loss of an opportunity of a more favourable result (see, for example, Condon v R, noted here 26 August 2006). In Young, the Court noted that this was not a case of loss of a real opportunity of a more favourable result, as it was impossible to speculate about what would have been the result of a fairly conducted hearing (para 48, 49). Because that was so, the Court’s judgment was itself sufficient satisfaction for any damage that had been suffered.

Normally, of course, the consequence of a finding that a hearing was unfair will be the quashing of the result (usually, the conviction) of that hearing. In Young, there was no resulting conviction to quash, and all that the Court could have done was to make an award of damages for non-pecuniary loss, but that would have required proof of a loss. Although the result of the unfair hearing was 3 extra days in custody, the applicant could not show that the same result would have followed from a fair hearing.

Legal expenses and award of costs

The Court in Young significantly reduced the amount of costs that were sought to cover the successful appellant’s legal expenses. Aside from the absence of a fully itemized account, the reason was that most of the submissions had been prepared after the delivery of the Grand Chamber decision – Ezeh and Connors - that had settled the law.

The implication is that counsel must rely on the Court applying its earlier decisions, even when the court is a largely differently constituted bench considering a previous split of 11 to 6. Notwithstanding the risk of liability for negligence, which might result in a tendency to, albeit in good faith, over-prepare, and the potentially strong opposition from government-funded prosecuting counsel, it seems that less well funded counsel must have confidence in their case.

Thursday, January 11, 2007

To speak, or not to speak?

For my observations on advising clients whether to talk to the police, Click here. 

Friday, January 05, 2007

Improperly obtained evidence

For my observations on the new provision in the Evidence Act 2006[NZ] concerning the discretion to exclude improperly obtained evidence, Click here.

Wednesday, January 03, 2007

Observations on hearsay

For my observations on the new hearsay provisions of the Evidence Act 2006[NZ], Click here.