Thursday, April 26, 2007

Multiple intents

When does an agreement to do one specific unlawful thing extend to encompass the doing of another unlawful thing? And when does a lawful purpose prevent liability for an unlawful purpose?

Two people might, for example, agree to stop traffic in order to prevent an accident at the scene of a breakdown. They have two intentions: to stop traffic, and to prevent an accident. Do these two intentions exist without qualifying each other, so that the legal consequences of one are unaffected by the existence of the other?

In DPP v Hurnam (Mauritius) [2007] UKPC 24 (25 April 2007) there is a reminder of these sorts of questions, although the case itself is a straightforward one. A criminal lawyer (the respondent) had been convicted of conspiring to hinder police by fabricating an alibi for a client, Bholah, in order to mislead the police in their investigation of a robbery. The Supreme Court of Mauritius had allowed his appeal against conviction on the basis that the prosecution had to prove an intention to hinder the police, as distinct from an intention to fabricate an alibi. The Privy Council restored the conviction.

“[20] …The Supreme Court was in their Lordships' view wrong to have regard only to the ultimate object or intention of the parties. A conspiracy may have several objects (cf the discussion in Williams, Criminal Law, The General Part, para 217) and one of the objects may constitute a means of achieving the ultimate object. As Webster J said in Lewis v Cox [1985] QB 509, 517 in the context of obstructing a police constable in the execution of his duty:

" … a court is not obliged … to assume that a defendant has only one intention and to find what that intention was, or even to assume that, if he has two intentions, it must find the predominant intention. If, for instance, a person runs into the road and holds up the traffic in order to prevent an accident, he clearly has two intentions: one is to hold up the traffic, and the other (which is the motive of that intention) is to prevent an accident. But motive is irrelevant to intention in the criminal law …"

“In this case the parties intended to assist Bholah to escape criminal liability, and they did so by means of fabricating an alibi, which would have the foreseeable and intended result of diverting the police from investigating his actions, so hindering their enquiry into the commission of the robbery. The immediate intention of their agreed course of conduct was to hinder the police in the accomplishment of their ultimate aim of exculpating Bholah. That in their Lordships' view was an agreement to hinder the police, sufficient to constitute the conspiracy with which the appellant was charged. The fact that the respondent and Bholah had an ultimate aim of exculpating the latter does not invalidate that conclusion.”

The Board mentioned (para 23) a couple of general points, the approach to findings of fact in lower courts, and the need to demonstrate a clear departure from the requirements of justice when appeals are as of right, as is the case in Mauritius. The Board declined to interfere with the sentence of 6 months’ imprisonment, holding that the delay (from 2000) had been occupied largely by the trial and the appeals process, and observing that the importance of maintaining the high standards of conduct at the criminal bar supported the sentence.

This case, while not deciding any new point of law, serves as a reminder that the concept of agreement, as an element of conspiracy, can include more than one objective.

Friday, April 06, 2007

Judging the gatekeeper

In Wizzard v R (Jamaica) [2007] UKPC 21 (29 March 2007) the Privy Council was reminded of the decision of the House of Lords in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513 (blogged 22 April 2005). Although the facts of the present appeal did not require Mushtaq to be applied, some observations on it were made by the Board.

Because it is based on the ancient ("from the time of Lord Hale") common law principle against self-incrimination, Mushtaq was held to apply in Jamaica (and this implies, of course, that it extends to any other common law country unless there is legislation to the contrary effect), and to apply retrospectively to cases heard before Mushtaq was decided.

Mushtaq held that a jury must be directed, where the matter is in issue, that if they are not satisfied that a statement was made by the accused in the absence of oppression, they must ignore it.

Prior to Mushtaq, the Judicial Studies Board in England had approved a direction which, once the judge had decided the oppression point against the accused and ruled the statement admissible, the jury could give it what weight they wished, even if they thought it could have been made as a result of oppression. Thus, Mushtaq made an important correction to the way the law had developed.

Technically, what the jury is doing under the Mushtaq direction, is not deciding the admissibility question (which is a matter the judge had decided), but instead is deciding that, because of the possibility of oppression, the statement should be given no weight and it should be ignored. That, of course, is a highly technical distinction, but it has importance in preventing erosion of the standard that the judge must apply to the question of whether there was oppression.

It would be wrong for a judge to think that, because the jury can decide to ignore the statement, it may as well be ruled admissible even where there is a real risk that it had been obtained by oppression. The challenge for those involved with making judges apply the law with integrity is to ensure that this sort of error does not occur.