Abuse of process, stay of proceedings, and integrity

The inherent power of a court to stay criminal proceedings on grounds of abuse of process is a discretionary matter, not to be fettered by rigid classifications of kinds of official misconduct: Warren v Attorney General of the Bailiwick of Jersey (Court of Appeal of Jersey) [2011] UKPC 10 (28 March 2011).

There are, said Lord Dyson delivering the leading judgment, two categories of case in which a stay may be justified: (i) where a fair trial could not be held; (ii) where continuing the proceedings would offend the court's sense of justice and propriety [22, quoting R v Maxwell [2010] UKSC 48 at 13, a decision not yet published].

These should not be confused, and it is unhelpful to refer to fairness when discussing the second category (Lord Kerr at [84]).

The signal here [this is me now, not a Lord] is that what is often referred to as "public policy fairness" should now be called something like "public policy grounds" or "the public policy category".

The circumstances of each case are critical, and the classic cases - R v Looseley [2001] 1 WLR 2060; R v Latif [1996] 1 WLR 104; R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 - must be read in this light. Lord Dyson added [26]:

"The Board recognises that, at any rate in abduction and entrapment cases, the court will generally conclude that the balance favours a stay. But rigid classifications are undesirable. It is clear from Latif and Mullen [[2000] QB 520] that the balance must always be struck between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute. It is true that in Bennett the need for a balancing exercise was not mentioned, but that is no doubt because the House of Lords considered that the balance obviously came down in favour of a stay on the facts of that case (the kidnapping of a New Zealand citizen to face trial in England)."

Any virtue that might have been thought to attach to Mr Bennett, through giving his name to a leading case on police misconduct, is dispelled in the present case by Lord Hope, who adds at [64-68] a detailed examination of the facts of that case.

Does the emphasis on the facts of each case erode the value of these cases as precedents? Does the balancing exercise leave the law unacceptably vague? On appeal the question will be whether the decision to refuse a stay was perverse or was one which no reasonable judge could have reached [51].

Judgments may tend to pull in two directions: to condemn the misconduct of officials while at the same time holding that a stay was not required. That was the position here. Looking at the misconduct from a (considerable) distance – the placing of audio surveillance equipment in a car without lawful authority and giving the impression that permission had been obtained – this was not a case of serious misconduct. But one would think it was, given the stern protestations of Lord Dyson [45-46], Lord Hope [61-62, 68], Lord Rodger [70-71], Lord Brown [78], and Lord Kerr [81-82]. There were circumstances that mitigated the wrongfulness, summarised by Lord Dyson at [47-50].

The Board found useful the summary of the balancing exercise appropriate to the second category of abuse of process cases (no balancing being appropriate where a trial would not be fair) given by Professor A L-T Choo in Abuse of Process and Judicial Stays of Criminal Proceedings, 2nd ed (2008), at p 132:

"The courts would appear to have left the matter at a general level, requiring a determination to be made in particular cases of whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. Implicitly at least, this determination involves performing a 'balancing' test that takes into account such factors as the seriousness of any violation of the defendant's (or even a third party's) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged."

Lord Kerr summarised [83] the principles that have emerged from recent jurisprudence. He emphasised that stays are not imposed to discipline the police, but instead are designed to protect the integrity of the criminal justice system.

The decision in this case may have been finely poised, but it is not surprising: given the extenuating circumstances and the relatively slight (compared to being kidnapped or entrapped) breach of the defendant's rights, and the fact that the offending was importation of cannabis (180 kg, worth over £1m), it is not unreasonable to conclude that the integrity of the justice system did not require a stay of proceedings.


No one likes to disagree with the Privy Council, but I have to doubt whether it is appropriate to address the need for a stay of proceedings as a balancing exercise. Either misconduct is sufficiently egregious to require a stay, or it is not. The balancing factors mentioned in this case are essentially those applicable to the discretion to exclude improperly obtained evidence. The balance is between factors relevant to the seriousness of the impropriety and factors relevant to the seriousness of the alleged offending. This similarity in reasoning raises the question of the relationship between exclusion and the stay of proceedings.

The stay is clearly the more extreme response, and factors justifying it can be put at the end of an imaginary continuum of impropriety, most of which could be a basis for exclusion of evidence unless the offending is too serious. The seriousness of the offence is properly part of the balancing exercise used to determine the admissibility of improperly obtained evidence. But when the level of impropriety is sufficiently high to take the potential remedy beyond exclusion of evidence to a stay of proceedings, is there a level of offending that would make a stay inappropriate? If there were, it would also have to make exclusion of the improperly obtained evidence inappropriate, otherwise where that evidence was central to the prosecution case the proceedings would terminate. Once evidence is ruled admissible after the balancing exercise, because the alleged offending outweighed the impropriety, an application for a stay would be futile. If, on the other hand, the evidence was excluded because the impropriety outweighed the seriousness of the offending, an application for a stay might in extreme cases be successful and if so, that would be because of the seriousness of the impropriety. 

There would be some cases where the impropriety, although sufficient to require exclusion of the improperly obtained evidence, was insufficiently serious to warrant the response of a stay. That would be because of the nature of the impropriety, not because of the seriousness of the alleged offending. But where the impropriety was sufficiently serious to justify a stay, it would be sufficient for that purpose no matter how serious the offending. The assessment of the seriousness of the impropriety would be an exercise of judgment, taking into account matters relevant to the impropriety. The judgment would be about whether in those circumstances a stay was necessary to uphold public confidence in the integrity of the judicial process. It would be wrong to say that a prosecution should proceed (because of the seriousness of the alleged offending) even though proceeding would compromise the integrity of the judicial process.

For a glance into the future, see Wilson v R [2015] NZSC 189 (14 December 2015), where the Court described the decision as to whether a stay was warranted in circumstances of investigatory impropriety as a balancing exercise, where the seriousness of the impropriety was balanced against the need to uphold public confidence in the integrity of the judicial process (at [60], Elias CJ dissenting on this point at [149]). I side with the Chief Justice on this.

The stay of proceedings can be used in wider contexts than improperly obtained evidence, and in those the seriousness of the alleged offending may well be a relevant factor. Delay, multiplicity of charges, re-litigation of decided issues, improper motive in charging or prosecutorial reneging on an agreement as to charge can all give rise to issues of the appropriateness of a stay, and the seriousness of the alleged offending could properly be a factor in the decision. 

Disobedient fact-finders

For an interesting article on the adverse effects of a rule (as opposed to a discretion) excluding improperly obtained evidence, and the ways in which fact-finders can be biased by knowledge of excluded evidence or by suspicion that evidence has been excluded, see Tonja Jacobi, "The Law and Economics of the Exclusionary Rule", available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1783863

The author cites studies that suggest juries do not obey judicial directions, and even go to the extent of counter-intuitively reasoning that "if I am innocent I may as well commit offences because if tried I would be likely to be convicted even if innocent." We need to know how valid are the studies that are cited in this paper.

Using relevance to prevent unfairness

Today's decision of the High Court of Australia in Stubley v Western Australia
[2011] HCA 7 is noteworthy on three points.

The amazing legislation in Western Australia governing the admissibility of propensity evidence.

Section 31A(2) of the Evidence Act 1906 (WA) provides:

"(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."

It is para (b) that makes sensible people sit up and wonder. It posits a situation where fair minded people might think that something can be more important than the risk of an unfair trial. Normal people would think that when a risk of trial unfairness becomes unacceptably high, the risk must be avoided (by exclusion of the challenged evidence), regardless of what public interest there might be in adducing evidence of the defendant's guilt. That is, even people who appear to be guilty of the most hideous crimes are entitled to be tried fairly. But not, apparently, in Western Australia.

Differing analyses of relevance

The facts of the case on appeal require attention to illustrate this point, but more generally the case illustrates how senior judges can differ on what is in issue in a case. The majority (Gummow, Crennan, Kiefel and Bell JJ) held that the evidence in contention was not relevant to any issue, and a retrial was ordered, whereas Heydon J dissented, holding that there were live issues on which the evidence had probative value.

Stratagems and spoils (smile, Bard)

Heydon J draws attention to the significance of concessions by the defence on the scope of admissible prosecution evidence. The majority did not consider that the case required examination of this.

A clever defence tactic is to spoil the prejudicial effect of detailed prosecution evidence by conceding that aspects of it are not in issue. Where there is no issue, the theory goes, the point is not a matter on which proof is needed, or indeed permitted. Evidence must be relevant to a matter in issue.

Heydon J recognised that this was not an appropriate case to explore these stratagems, as no such techniques were used here.

Sentencing the reformed offender

The theme of maximum flexibility for a judge in fixing a sentence that fits both the crime and the offender, recently discussed here in relation to guideline judgments, is also present in Pepper v United States, USSC No 09-6822, 2 March 2011.

Pepper illustrates the relevance of post-sentencing rehabilitation when a sentence is reconsidered on appeal. The advisory guidelines (United States v Booker, 543 U.S. 220 (2005), discussed here on various occasions from 13 December 2007) could be departed from to recognise rehabilitation, and legislation to the contrary effect was declare invalid.

Possession of the fullest information possible on the offender's life and characteristics has long been held to be essential to selection of an appropriate sentence: Sotomayor J delivering the opinion of the Court in Pepper, citing Williams v New York, 337 U.S. 241, 246-247. Thomas J dissented in Pepper, on the grounds that the guidelines should be mandatory. He has held to this line previously, apparently not thinking that he should revise his views to conform to the law which he has no chance of changing.

Confronting imaginary emergencies

Michigan v Bryant, USSC No 109-150, 28 February 2011, continues the line of cases which purports to bring the reliability exception to the rule excluding hearsay into interpretation of the Confrontation Clause of the Sixth Amendment. See my 27 June 2008 comments on Giles v California, 554 U.S. 353 (2008). Bryant is a rather questionable decision on its facts, as Scalia J vigorously points out in his dissent.

To achieve admission of the evidence - the mortally wounded victim told the police who had shot him - the majority (Sotomayor J, joined by Roberts CJ and Kennedy, Breyer and Alito JJ, with Thomas J separately concurring) assessed the facts "objectively" from the points of view of the victim (the "declarant") and of the police who questioned him. Perhaps they were pushed to this curious approach because there was no evidence that the emergency which was necessary to escape the exclusion of the evidence actually existed: see Scalia J, slip op., pp 9–10; the majority said that the declarant and the police should have thought it did. That is, the majority held that there was an objective emergency and the declarant's objective purpose (not his actual purpose, but the purpose he should have had) was to help the police meet this emergency, so what he said was not testimonial and the confrontation clause did not apply.

The Confrontation Clause states:

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Witnesses are those who bear testimony, and testimony means "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact": Crawford v. Washington, 541 U. S. 36, at 51.

Those of us who do not have to worry about the Confrontation Clause can still take an interest in the majority's strange reasoning. I exempt Thomas J from this criticism, as he simply focused on whether the declarant's statement was "testimonial" within the meaning of that term in the Sixth Amendment and held that it was not because the interrogation here did not have the characteristics of a formalised dialogue with indicia of solemnity. He thus avoided trying to reconstruct the primary purpose of the participants. But the reasoning that constitutes the opinion of the Court is very odd.

The Court addresses the purpose component of testimony objectively (slip op., p 13):

"... the relevant inquiry into the parties' statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties' statements and actions and the circumstances in which the encounter occurred."

This undermines the basis for the reliability exception, which is that the circumstances as perceived by the speaker who is no longer available as a witness were such as to make fabrication unlikely. But the Court would say that even if the declarant did not realise that he needed to speak urgently, he should have realised that urgency existed and accuracy was required.

Further, as Scalia J points out, the Court is giving judges the power to do what they like:

"If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police's intent and declare the statement testimonial. If the defendant "deserves" to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach "the guarantee of confrontation is no guarantee at all." Giles v. California, 554 U. S. 353, 375 (2008) (plurality)."

The Court recognised that the existence of an emergency was relevant, but in relation to the interrogators' primary purpose, calling this a "context-dependent inquiry". At slip op., p 22 it held:

"The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim's circumstances, which prominently include the victim's physical state." [emphasis added]

The alarming thing here is that the actual victim here did not seem to appreciate any urgency. After being shot he fled some six blocks and at a gas station 25 minutes later a 911 call was made and the police quickly arrived. Then five officers in turn questioned him about the shooting.

"[the victim's] pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked [him] how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid." [Scalia J's opinion, p 7]

Justice Ginsburg agreed with Scalia J that the declarant's intent is what counts. She noted that the issue of whether this case was one of a dying declaration was not before the Supreme Court because it had been abandoned by the prosecution in the Michigan Supreme Court. So although the Court had recognised that the dying declaration exception to the hearsay rule was an exception to the confrontation requirement in the common law inherited from England (Crawford v Washington, above), it was not necessary here to decide whether it survived the Court's recent confrontation decisions.

Bryant is a case where, as the prosecution recognised, the easy answer - that the declarant was making a dying declaration - was not available on the true facts, so the plurality had to uphold the admission of the evidence on these inconvenient facts by creating law that escapes the Confrontation Clause by pretending the statements were in response to an emergency and so were not testimonial. With the "facts" being what judges think they should have been, judges can do as they wish.

Aiding or standing by?

Aiding an offence requires a positive act of assistance in its commission. This is not new law, but it is usefully illustrated in Robinson v R (Bermuda) [2011] UKPC 3 (9 February 2011).

One of the ways in which the appellant had been alleged to have been guilty of the murders of twins was that he

"intentionally conveyed to … Burgess [the principal] by his presence and behaviour that he was assenting to and concurring in the commission of the offence"

Sir Anthony Hughes, for the Board, recognised the danger in this form of allegation [14]:

"The Board is disposed to agree that to frame an allegation of aiding in [this way] does carry danger and is best avoided unless carefully qualified and explained. It courts the risk that insufficient attention is paid to the undoubted requirement that aiding imports a positive act of assistance. Of course that positive act of assistance may sometimes be constituted by D2 being present, and communicating to D1 not merely that he concurs in what D1 is doing, but that he is ready and willing to help in any way required. ... If D2's presence can properly be held to amount to communicating to D1 (whether expressly or by implication) that he is there to help in any way he can if the opportunity or need arises, that is perfectly capable of amounting to aiding ... . It is, however, important to make clear to juries that mere approval of (ie "assent" to, or "concurrence" in) the offence by a bystander who gives no assistance, does not without more amount to aiding. It is potentially misleading to formulate aiding [in the way mentioned above] without that qualification and without explaining that the communication of willingness to give active assistance is a minimum requirement."

The prosecution may prefer to allege aiding rather than the more complicated form of extended secondary liability. An opportunity to do this can occur where although a common plan may have been departed from, the aider continues to assist [18]:

"... an aider (D2) is guilty in respect of acts which he assists the principal offender (D1) to commit, knowing what D1 is about, so that if D1 steps right outside what was contemplated by D2, the latter will not be guilty. That, however, assumes that D2's assistance ceases upon the fundamental departure by D1. It is clearly otherwise if D2 continues to render assistance after a change of direction by D1."

So, just a reminder of some fundamentals here.

Thinking for the jury

One of the requirements for a fair trial is the correct application of the law. When a jury has doubts about what the relevant law is, it may ask the judge for guidance. In R v Miljevic, 2011 SCC 8 (16 February 2011) the Supreme Court of Canada split 4-3 on whether the judge had correctly responded to questions from the jury.

In this case there was no need for the court to decide new law. There was no doubt about what the applicable law was. The jury had to choose between murder and manslaughter, depending on what it found the accused's state of mind to be. The law on this is settled, but the jury wanted clarification.

The jury had asked: "In 'layman terms' what is the difference between murder 2 and manslaughter? Examples? … A specific definition of manslaughter?"

The judge answered not by giving examples or by giving a definition of manslaughter, but instead by repeating the definition of murder. He did not address manslaughter because he did not want to confuse the jury, and because he did not want the jury to disobey his instruction to convict on one charge by acquitting on both.

The minority (Fish J, with McLaughlin CJ and Deschamps J concurring) held [8]:

"...no 12 jurors should be required by a trial judge to convict the accused placed in their charge of one or the other of two offences without understanding how the elements of both might relate to the evidence before them (see R. v. MacKay, 2005 SCC 75 (CanLII), 2005 SCC 75, [2005] 3 S.C.R. 607, at para. 1, citing Azoulay v. The Queen, 1952 CanLII 4 (S.C.C.), [1952] 2 S.C.R. 495, at p. 503). Yet that is what happened here."

There may be occasions where only one of the two available alternatives needs to be decided, but was this a case where the mens rea for murder could be determined without comparing it to the mens rea for manslaughter? The jury had to assess foreseeability of serious bodily harm (and it seems the judge misdirected on this: [22]) in the context of the accused's impairment through intoxication. Given that intoxication does not excuse the failure to foresee harm that a reasonable person would have foreseen (for manslaughter), could a direction on manslaughter possibly have made any difference here?

The majority (Cromwell J, with Abella, Charron and Rothstein JJ concurring) agreed with the majority in the Alberta Court of Appeal, holding that on the agreed facts the accused was guilty of manslaughter (he had thrown what he claimed was a heavy baseball bat into a group of people), so the only issue at trial was whether the accused was guilty of murder. Also, the judge had invited the jury to ask questions if they had difficulty.

The Court of Appeal had not addressed the question of whether the only issue in the case could be decided without comparison with the mens rea for manslaughter. The Supreme Court majority concluded [3]:

"...There is no reasonable possibility that the jury could have misunderstood what had to be proved in order for them to return a guilty verdict on the charge of second degree murder."

This treatment of the single-issue without comparison with the criteria for the alternative is wrong. A direction on manslaughter, even though the accused was guilty of this at a minimum, could have helped the jury understand the mens rea for murder. Intoxication may have had a bearing on what the accused knew of the likely consequences of his act, and the fact that a reasonable person, who is by definition sober, would have recognised the risk is not quite the same thing. Comparison with manslaughter would have clarified the subjective nature of the requirements for mens rea in murder.