Tuesday, February 26, 2013
Friday, February 15, 2013
A few interesting remarks on imprisonment for contempt and on sentence appeals generally were made in B (Algeria) v Secretary of State for the Home Department  UKSC 4 (30 January 2013).
When dealing with a contemnor and considering the option of committal to prison, the court needs to assess two things, coercive and penal:
" ... Committal is appropriate where it can reasonably be expected that this will induce the contemnor to purge his contempt (the coercive effect). It is also appropriate to punish contempt of a court's order (the penal element). Frequently both elements will underlie a committal order. Where there is reason to believe that committal will secure compliance with a court's order, the fact that the person subject to it has already substantial restrictions on his liberty is immaterial. Where it is required in order to properly punish the contemnor, the loss of residual liberty is unlikely to weigh heavily against the making of the order."
The contemnor must be punished for misbehaviour and also must be induced to behave properly.
The other topic considered here is when an appellate court should correct a sentence itself instead of remitting the case to the lower court for it to impose an appropriate sentence:
" Where an appellate court has concluded that the basis on which the decision of the lower court to sentence someone for contempt is flawed, it does not follow that the sentence chosen by the lower court is inevitably wrong. It may be an entirely correct sentence but for different reasons from those articulated by the original sentencing court. The affirmation of the original sentence does not necessarily entail an endorsement of the reasons for which the decision to sentence was made. Where it has been determined that the basis for the original sentence of imprisonment is wrong, a de novo assessment must indeed occur. A fresh look at the circumstances material to the question of whether imprisonment is the right disposal should take place in light of the correct understanding of those circumstances.
" It is not essential, however, even as a matter of generality, that the fresh look be undertaken by the original sentencing court. If it is sufficiently clear to the appellate court that a sentence of imprisonment is appropriate in light of its revised view of the relevant facts, it is not required as a matter of principle or of practice that the matter be remitted to the court which first imposed the sentence. As Jackson LJ said in JSC BTA Bank v Solodchenko (No 2)  1 WLR 350 para 60, where an appellate court is seised of the case and in possession of all relevant facts, the proper course is for the appellate court to determine what the proper sentence for contempt should be on the basis of the true facts. Where, of course, a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by a first instance court, remittal will be suitable. This is not such a case. The Court of Appeal was able to evaluate the medical evidence and reach reliable conclusions on its significance. It could decide what the appropriate sentence should be and it was right to do so."
And on the topic of contempt of court, there is a particularly interesting discussion of the common law powers by Professor ATH Smith, "Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper", 18 April 2011, and also in Siemer v Solicitor-General  NZSC 54,  3 NZLR 767, (2010) 24 CRNZ 748 (SC).
Thursday, February 14, 2013
The burden and standard of proof of the affirmative defence of limitation, and some aspects of the affirmative defence of withdrawal, were considered in Smith v United States, USSC No 11-8976, 9 January 2013.
Subject to any statutory definition to the contrary, an affirmative defence is one that affirms that even though the actus reus and the mens rea may have been proved, nevertheless the defendant is not guilty.
Examples of affirmative defences are infancy, insanity, self-defence, coercion, and limitation.
This last one, limitation, amounts to the defendant saying, "Yes, I committed the offence, but that was so long ago that the law prevents me being charged." Not all offences are limited in this way, and limitation periods are established by legislation. Terminology can be a bit confusing, so when I say the offence was inside the limitation period that means the defendant can be prosecuted, and when I say it was outside the limitation period that means the defendant cannot be prosecuted.
In Smith the relevant offences were conspiracies to commit various serious offences. A limitation period applied. The defendant relied on the limitation period, saying his participation in the conspiracies had ceased outside that period because he had withdrawn his participation. At trial the issue of withdrawal only arose as a result of a question from the jury, and the judge gave a direction that the defendant had to prove withdrawal to the standard of the balance of probabilities. The Supreme Court held that this did not violate the Due Process clause.
Placing the burden of proof of withdrawal on the defendant did not violate the right to be presumed innocent because, as the Court had said in Patterson v New York, 432 U.S. 197 (1977),
Of course legislatures could change that rule, as indeed most have, so that it is now usual for defences, whether they be affirmative or not, to be for the defendant to raise but for the prosecutor to disprove. The defendant under this usual approach has only the "evidential burden" of pointing to some evidence sufficient to put the existence of the defence into issue.
But in the eighteenth century, as Blackstone described in his Commentaries, the defendant had to prove the defence. In Smith the Court, in its unanimous opinion delivered by Scalia J (who did not on this occasion have the opportunity to indulge his appetite for the purple prose of vigorous dissent), pointed out that the burden on the defence to establish withdrawal on the balance of probabilities was justified because it was the defendant who would have the relevant evidence on the issue. The prosecutor could not be expected to prove a negative. The defence here did not seek to negative any element of the offence that the prosecutor had to prove.
To negative his participation in the conspiracies the defendant had to prove that he took steps "to dissociate from his confederates". The conspiracy was a continuing offence, and the prosecutor had proved that it continued inside the limitation period, but the prosecutor could not be expected to prove that the defendant did not withdraw before then. Participation in the conspiracy continues even if the defendant is inactive after joining it, until he withdraws or until the conspiracy terminates.
I should emphasise that the law is not necessarily the same outside the United States. The common law has developed since the eighteenth century and legislation usually reflects those developments: a defence carries an evidential burden for the defendant and then a legal burden of disproof on the prosecutor. The usual exception is insanity, where the legal burden is on the defendant to the standard of the balance of probabilities. But where the defence of withdrawal is still a common law defence the policy of placing the legal burden on the defendant, on the issue of the taking of sufficient steps to withdraw, may need some consideration.
Withdrawal cannot be effective if the offending cannot be undone. A conspiracy is complete upon agreement, and it continues while that agreement exists even if the parties to it change. Once the defendant has entered the conspiracy it is too late for him to withdraw. And in relation to attempts, it is too late to withdraw once a sufficiently proximate act has been committed. And incitement is committed when the incitement occurs – it is too late to withdraw after then. But liability can arise from assistance or encouragement, and it may be possible for the defendant to withdraw his assistance and encouragement. Liability can also arise from participation in a common purpose, and a defendant may be able to withdraw by negativing his participation. More than verbal withdrawal may be required, for example where the defendant has provided others with equipment needed to commit an offence. Even verbal withdrawal may require more than mere dissociation, and the defendant may have to try to persuade the principal offender not to continue.
In Ngawaka v R  NZCA 249 (6 October 2004) the Court of Appeal approved a statement of the law on withdrawal by Hammond J in R v Pink  2 NZLR 860:
Hammond J continued:
Update: the New Zealand Supreme Court has held that withdrawal is a common law defence and that Hammond J's points in Pink need modification: Ahsin v R  NZSC 153, especially at  per McGrath, Glazebrook and Tipping JJ.
Monday, February 11, 2013
Aggravating factors at sentencing do not include delay in the proceedings if the defendant was not responsible for that delay. Nor do they necessarily include exercise of the right to put the prosecution to proof: Hassen Eid -En Rummun v The State of Mauritius (Mauritius)  UKPC 6 (7 February 2013), , .
Those propositions of law depart from the usual approach to delay. It is conventional to ask, to what extent is it a mitigating factor that the defendant has been deprived of the right to a trial without undue delay, and to what extent is it a mitigating factor that the defendant has pleaded guilty?
Where there may have been a breach of a defendant's constitutional right, it is the duty of the sentencing court to examine whether any such breach should have an effect on the disposal of the case, whether or not that issue has been raised by counsel: . The seriousness of the offending may be such as to outweigh the effect of the breach, but the breach is a factor that must be considered: .
In this case delays seem to have been largely due to a co-defendant's strategy, although there were also delays due to the unavailability of prosecution witnesses including police officers. The facts needed clarification, and the case was remitted to the Supreme Court of Mauritius, but it is implicit in the Board's approach that where a co-defendant or a prosecutor is causing delay, the defendant should object to that delay and ask that his objection be recorded, because at sentencing his attitude to the postponement of the proceedings will be closely examined: , applying Celine v State of Mauritius  UKPC 32, and Boolell v State of Mauritius  UKPC 46 (noted here 18 October 2006). But mere acquiescence in delay is not the same as actively promoting delay .
While there is no doubt that an early plea of guilty is a mitigating factor, courts have been careful to distinguish the absence of a mitigating factor from the presence of an aggravating factor: see for example Republic of Croatia v Snedden  HCA 14 (noted here 19 May 2010). Failure to plead guilty at an early stage can result in loss of a sentence reduction, but it does not – or should not – lead to an additional penalty. This reasoning satisfies legally trained minds, but defendants can find it difficult to follow. It is, however, important not to coerce guilty pleas: Hessell v R  NZSC 135 at -, discussed here on 16 November 2010.
Here is the Board's treatment of this point :
The word "penalised" here is inappropriate for legal discourse. There is a tendency to pussy-foot around points that should be stated absolutely. What do "some caution" and "anxious scrutiny" mean?
If the defendant "is entitled" to put the prosecution authorities to proof, how can exercising that entitlement result in punishment? It may result in loss of a mitigating factor, but it would be wrong to treat it as an aggravating factor. Similarly it would be wrong to treat trial delay as an aggravating factor, whereas it would be correct to treat unjustified trial delay caused by the defendant as grounds for reducing or eliminating the mitigating effects of loss of the right to a trial within a reasonable time. Or at least that is what this decision recognises.
It is unfortunate that the Board was so brief on this point. On what principled basis should a defendant be deprived of the full mitigating effect of unreasonable trial delay? The defendant has already lost the mitigating effect of an early guilty plea. The basis for mitigation arising from an early guilty plea is the pragmatic one of encouraging the saving of court time and the associated expense of trial. There is a link between the guilty plea and the saving of time and cost. On the other hand, mitigation arising from breach of the right to trial without undue delay is based on encouraging prosecution efficiency. If the prosecution process has been inefficient to the extent of being unreasonably slow, where is the link to the defendant's plea? Without judicial clarification we can properly wonder whether the Board is correct to recognise that a plea of not guilty may reduce the defendant's remedy for unreasonable delay by the prosecution.