Obviousness and obfuscation

Civil proof of offending

It should be obvious that proving something to the civil standard does not undermine failure to prove it to the criminal standard.

Blindingly obvious though this may be, it has troubled the Strasbourg judges. The UKSC was briefly troubled by it (R v Briggs-Price, noted here 2 May 2009), but more recently it was not: Gale v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011).

Again in Gale the context was civil proceedings for the recovery of property to a value equivalent to the proceeds of serious criminal offending. The judge had applied the civil standard of proof to the issue of the commission of such offences. The Supreme Court unanimously upheld that approach.

There was some delicate treatment of Briggs-Price, and what was the minority view there was now unanimously approved: 47-54. This was achieved by admirably obscure reasoning, perhaps inspired the confusing nature of the Strasbourg jurisprudence.

The presumption of innocence, and the finality of acquittals, are not compromised where in civil proceedings for the recovery of the proceeds of crime the court is satisfied on the balance of probabilities that criminal offending had occurred.



Waiver of the right to legal advice

Another thing that you would have thought was obvious is that a person can waive the right to legal advice without having to receive legal advice about waiver and its consequences.

This point had to be decided in McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 54 (23 November 2011).

Difficulties concerning the effectiveness of waiver can arise from the different rights that may be waived and from whether the alleged waiver was express or implied. But in all cases, waiver must be shown to have been "voluntary, informed and unequivocal" (Lord Hope at 17). "Informed" waiver will not exist if there is reason to believe the defendant had not understood the right that was being waived (36, 38, 44), but a defendant can understand without legal advice (46). The court will, however, proceed cautiously where the defendant is of low intelligence or is vulnerable for other reasons (47).

Further (49), if a defendant declines legal advice, the police should mention that such advice can be obtained by telephone, and if the defendant still declines, the police should ask why and record the answer. That, at least, would be best practice although not an absolute rule (50) [and see also Jude v HM Advocate (Scotland) [2011] UKSC 46 (23 November 2011)]. It could also be wise to advise the defendant that legal advice could be given without cost to him (51).

There was a time when courts took a more tight-sphinctered approach to what was adequate advice of the right to consult a lawyer. In R v Piper [1995] 3 NZLR 540 (CA) for example, it was thought to be unnecessary to inform the defendant that the consultation would occur without the police overhearing it. But now we have the Chief Justice's practice direction (issued under s 30 of the Evidence Act 2006) which requires privacy to be mentioned. It also requires mention of the availability of free advice.

Another point I should make about waiver is this. Waiver is a more sensible requirement to use than is consent. The issue should not be whether the defendant "consented" to police questioning, but rather whether he waived his right to legal advice and to silence. Similarly, in the context of searches, the issue should not be whether the defendant "consented" to a search, but whether he waived his right not to be searched. As anyone can see, it is incongruous to think that a defendant in possession of incriminating material would freely consent to being searched by the police, but less so to think that he might waive his right not to be searched.

Conviction appeals – burdens and risks

How sensitive should an appellate court be to the risk that an error at trial was sufficient to require the quashing of a conviction and the ordering of a retrial?

The proviso has been the traditional legislative criterion, and its formulation has usually used the concept of a substantial miscarriage of justice. That is, an error at trial would not require the quashing of a conviction if it was not a substantial miscarriage of justice.

There was therefore a distinction between miscarriages of justice that were not substantial, and those that were. The former could be termed harmless errors, and the latter errors that may have affected the result of the trial.

But what does "may have affected" mean for this latter group?

In R v Sarrazin 2011 SCC 54 the majority declined to draw distinctions between various grades of risk of affect on the outcome. At [27] Binnie J said:

"It seems to me that there is a significant difference between an error of law that can be confidently dismissed as "harmless", and an assessment that while the error is prejudicial, it is not (in the after-the-fact view of the appellate court), so prejudicial as to have affected the outcome. Such delicate assessments are foreign to the purpose of the curative proviso which is to avoid a retrial that would be superfluous and unnecessary but to set high the Crown's burden of establishing those prerequisites. The same can be said for the other branch of the curative proviso. As a result, the burden of the Crown to demonstrate an "overwhelming" case or a "harmless" error of law should not be relaxed."

What is interesting about this for those of us who are about to come under a reformed legislative regime is this. The burden has shifted from the Crown to the appellant on the issue of whether an error at trial was harmless. Formerly the Crown had to satisfy the appellate court that the error was harmless, now the appellant will have to satisfy the appellate court that it was not.

Only one submission to the select committee on the criminal procedure bill mentioned this point.

Section 232 of our Criminal Procedure Act 2011 materially avoids any distinction between substantial miscarriages of justice and those which are not substantial. The appeal court must allow an appeal if it is satisfied that a miscarriage of justice had occurred, and that means that there is a real risk that the outcome of the trial was affected by the error. There are other aspects, but these are the ones directly in point here.

How will an appellate court interpret "real risk"? Is there to be a gradation of risks, of the sort that the Supreme Court of Canada majority found unacceptable? Or is a real risk anything more than a harmless error or one which occurred in any case other than one where the prosecution's case was overwhelming?

As the dissent of Deschamps, Rothstein and Cromwell JJ in Sarrazin illustrates, opinions can differ over whether there was a reasonable possibility that an error could have affected the verdict.

In the circumstances of that appeal, the majority's approach, which was that failure by the judge to put to the jury the alternative of an attempt amounted to a substantial miscarriage of justice, is preferable to the minority's speculation on how the jury was thinking. Under the New Zealand reformed law, the majority's reasoning would lead to a conclusion that the trial had been unfair because it was not according to law. That is an alternative ground for finding a miscarriage of justice under s 232.

When our hair was black

In the course of considering the alleged naivety of Jonathan Sumption (UKSC blog 9 November 2011) I reached for my copy of "Equality" by Joseph and Sumption, which when it was hot off the press I reviewed for the University of Auckland students' newspaper in 1979.

Those were the days when Sumption's hair was black, as indeed was mine. Here is mine:

His was more flamboyant:

The book is an argument against taxation-imposed redistribution of wealth. The UK was then in the grip of rampant taxation of the rich. The authors' style has a formidable clarity that is only available to the very brilliant.

But although I now forget what I said about the book at the time (update: here is a copy of my review), it seems to me that insistence on logical rigor on matters of social policy has the same weakness I mentioned here on 3 November 2011. Relatively immature cognition favours logic over the weighing of values that should underlie policy reasoning.

Sumption has delayed taking his position on the UKSC bench so that he can work on an important case. He will receive a spectacular fee for that. In 1979 he and Joseph said (p 69):

"In practice, people will not work beyond the point at which the burden of the extra work exceeds the pleasure of the extra money."

Given that the work of a lawyer is generally not particularly burdensome, one can see how the balance may fall.

But people do work for reasons other than "the pleasure of the extra money." There are some burdensome areas of criminal law practice, as anyone who defends the children of the poor will realise. Legal aid returns can be insignificant compared to the burden of the work.

There is naivety in Joseph and Sumption's book. It seeks to shield its glib assumptions behind an insistence that only logic can rebut its argument. Dworkin's hedgehog has the better view. Compare the starkly different views of what is the business of the State. Joseph and Sumption (67):

"It is no business of the State to decide in advance what kind of society it ought to be governing and then to manipulate or frustrate known desires in such a way as to bring such a society into being. It must take its subjects as it finds them. It is means, not ends, which are the proper concerns of governments. It is their proper function to provide a framework of laws and institutions within which men can pursue ambitions of their own devising, and thereby create whatever society is the natural outcome of the infinite variety of human tastes and personalities."

Dworkin (352-354):

"Coercive government is legitimate only when it attempts to show equal concern for the fates of all those it governs and full respect for their personal responsibility for their own lives.

"... [E]verything the government of a large political community does – or does not do – affects the resources that each of its citizens has and the success he achieves. ... [T]he impact of ... personal variables on his actual resources and opportunities must in every case also depend on the political variables: on the laws and policies of the communities in which he lives or works.

"... [W]e cannot avoid the challenge of equal concern by arguing that the resources an individual has depend on his choices, not the government's choices. They depend on both."

Dworkin's conception of the purpose of government is more nuanced and more realistic.

Just to be even-handed, I should confess that around the same time as Joseph and Sumption were writing their short book I was writing an essay for a Masters tutorial on the hallmark requirement for the admissibility of similar fact evidence, in which I asserted that absence of a hallmark can itself be a hallmark. Even now my toes curl and I blush. True it may be that in some contexts the offender who has no hallmark may thereby be distinguished from other suspects, but more generally absence of a hallmark has no probative value. How young I was, how innocent. But the difference is that whereas my error was a simple slip of logic, easily corrected, Sumption's is a neglect of pragmatism. Experience tells us that weak judges tend to rely on logic at the expense of pragmatism. "The life of the law has not been logic, it has been experience."

Informer privilege

Both the state and a police informer may have an interest in keeping confidential the identity of the informer. But such confidentiality is subject to a defendant's right to a fair trial. A defendant may make his own inquiries into the identity of an informer, but this must be done with care to avoid conduct that obstructs the course of justice.

The line may be crossed, for example, if the defendant tries to obstruct prosecution proceedings by suggesting that he will disclose an informer's identity. In R v Barros
2011 SCC 51 (26 October 2011) that was alleged.

It is in the public interest that false claims of informer privilege are disallowed. The person may have been a participant in the offending to an extent that protection of confidentiality is not warranted. He may have instigated the offending. Both the defendant, and when the case gets to trial, the judge, have an interest in ensuring that claims to confidentiality and privilege are properly based.

Where there is a proper basis for informer privilege it is granted - without the balancing of competing interests that may be undertaken in other areas such as confidentiality relating to journalists' sources – but only if the defendant's right to a fair trial would not be compromised [33-35].

The Canadian approach seems consistent with that in New Zealand: Evidence Act 2006, ss 53, 64, 67.

NZSCBlog

[Update: the "NZSC blog" seems to have disappeared. I imagine that students are under too much pressure to produce quality beyond the limitations that their inexperience inevitably imposes. Not to worry, it was an ambitious plan.]

Congrats to the University of Auckland Law School on starting the New Zealand Supreme Court Blog. I enjoyed the analysis of Elias CJ's discussion of what academics call the third source of governmental power in Hamed v R.

I wonder if judges anonymously create their own blog sites and comment on each other's judgments. Perhaps they could adopt noms de keyboard and post rebuttals of critical assessments of their work.

I don't allow comments because my early experience was that they are just irritating, whether from judges or not.

Anyway, the new blog is off to a promising start, so I have added a link to it. This does not mean that I agree with its criticism of the CJ's judgment. It is possible that law schools still place emphasis on technical legal reasoning - identification of the ratio of a decision, recognition of precedents, distinguishing or applying other cases - which is formalist, at the expense of policy reasoning which is essentially pragmatic. The Supreme Court is a policy court. It is not bound by decisions of other courts, and is probably not even bound by its own decisions. It is concerned with finding the best solution to legal problems in the light of the judicially-perceived policy that best serves the current needs of our society. If it gets that wrong, the legislature can intervene.

Posner, in "How Judges Think" at 220-221 is particularly good on this topic, as are generally his chapters 7 and 8.

So, what sort of society do we want to live in? One where the police can approach people at random and ask if they may search their bags? People who think that the executive can do anything that is not specifically proscribed would have to accept that sort of society. Or do we prefer a society in which the police can only put questions to people when they have lawful authority to do so? I think our desire for freedom from executive interference supports this alternative. As it happened, the CJ did not support her conclusion with policy reasoning other than in a broad sense by reference to the significance of the Bill of Rights. Her formalist approach to what was essentially a question of pragmatism might reflect the schoolroom (but I prefer to doubt that), and has drawn formalist criticism. Both her approach and the criticism have mis-fired here.

I should add, while I am in this mood to be helpful, that a prime illustration of formalism being developed to an academic extreme and then discarded in favour of pragmatism is Field v R, discussed here on 27 October 2011.

What’s the word for ...?

Procedural fairness aims at facilitating substantive fairness. Sometimes procedural rights are so close to the right to a fair trial that there is no room to argue that notwithstanding breach of procedural fairness there was a fair trial. An argument along these lines was rejected in Abdula v R [2011] NZSC 130 (1 November 2011).

The Supreme Court in this case laid down procedural guidelines for the use of interpreters in trials in the future [60]. Those procedures had not been followed in this case. At [44] the Court said:

"The consequence of a breach of the right to the assistance of an interpreter under s 24(g) [of the New Zealand Bill of Rights Act 1990] is a breach of the right to a fair trial under s 25(a). We do not accept as correct the Crown's submission that, once a breach of the right to assistance of an interpreter is shown, the court must exercise a judgment as to whether the accused nevertheless had a fair trial. Rather, a properly established breach – the failure to meet the required standard – necessarily makes the trial unfair. In those circumstances, it is axiomatic that a substantial miscarriage of justice will have occurred. There can accordingly be no resort to the proviso under s 385(1) of the Crimes Act 1961.[Footnote: R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77]]"

In my view, this question of "failure to reach the required standard" marks the boundary between procedural unfairness and substantive unfairness. While the Court seems to be denying any distinction between the right to assistance of an interpreter and the right to a fair trial, it can only remove the distinction by employing the "required standard" concept. Really, the standard required of interpreters is that of avoiding trial unfairness.

Another interesting feature of this case is that the appellant has succeeded in establishing a rigorous procedure for future cases but not his own. The question for the Court then became, notwithstanding the departures in this case from the new standard was there any defect that resulted in an unfair trial here? The Court does here exactly what the Crown had "unsuccessfully" submitted it should do at [44] quoted above. But it does that by using the "required standard" analysis.

Failure of the appellant here was not surprising, because his counsel could not demonstrate any instance where failure of accurate interpretation impeded the conduct of the defence at trial [59]. Of course it would be difficult for counsel to do that here, as the words used by the interpreter were not known. On the facts, however, the defendant had at trial expressed no concern over the adequacy of the interpretation – but then, how could he know what was adequate?

In appeals like this (rape) there might be a public perception that the Court would do everything it could to avoid a retrial. Fortunately for the public perception of the administration of justice there seems to be sufficiently careful scrutiny of the circumstances in this judgment to put such concerns to rest.