Erroneous concessions

It would be manifestly unfair for a defendant to be held to a concession that was made because of a mistake of law: R v Mackle (Northern Ireland) [2014] UKSC 5 (29 January 2014) at [53].

The basis for a concession – is new evidence needed on appeal?

Where a defendant has conceded an element of liability (here that he “benefited” by avoiding a liability to pay duty and VAT on imported goods), but in law that concession was wrongly made (because he was not legally liable to make those payments), there is no need on appeal for evidence that the defendant was wrongly advised if the only evidence relied on by the prosecutor is insufficient to prove the obtaining of that, or any other, benefit [45].

Determining jurisdiction

Where a concession is made it may, in a particular legislative context, nevertheless be for the court to be satisfied that the point is established [51]. A concession about facts can provide evidence on which the court determines that it has jurisdiction to make an order, but a concession about a legal requirement is not determinative of jurisdiction.

The context here is the Proceeds of Crime Act 2002 [UK] (the POCA):

“[50] It is to be remembered that under POCA the court must itself decide whether the convicted person has benefited from his particular criminal conduct. The power to make a confiscation order arises only where the court has made that determination. A defendant's consent cannot confer jurisdiction to make a confiscation order. This is particularly so where the facts on which such a consent is based cannot as a matter of law support the conclusion that the defendant has benefited. On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order, that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is so not because the defendant has consented to the order. It is because his acceptance of facts itself constitutes evidence on which the judge is entitled to rely. Provided the acceptance of the facts is unequivocal, and particularly where it is given after legal advice which proves to be sound, the judge need not mount a further investigation. It should be emphasised, however, that this is because the judge can in those circumstances himself be satisfied on the evidence that the basis for making a confiscation order has been made out.”

Liability and benefit

In proceedings for the confiscation of the benefits of crime, it must be shown what benefit the defendant obtained, that is, how much he gained from the offending. The requirements for liability are not the same as the requirements for establishing a benefit from criminal activity [66], [68]. Examples are the handling of prohibited goods, or participation in a conspiracy, which do not alone establish that a person has benefited from criminal activity [68].

This case applies R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008), discussed here on 16 May 2008.

Concessions and confessions

You could – just for the sake of remaining alert - compare the consequences of a mistake of law resulting in a concession, with the consequences of a mistake of law resulting in a confession, discussed here on 7 December 2013. Whereas the error-induced concession made by each appellant in Mackle was of no legal effect, the error-induced confession in the (currently) suppressed judgment of the NZCA did have evidential effect. The difference reflects the law/fact distinction. Also, there are two types of fairness at play: the fairness of the trial (a first requirement being that the law is accurately applied) and public policy fairness (the balancing of interests carried out in determining admissibility).

And, to be even more alert, you might wonder - following the train of thought in the first sentence of this comment - whether the law/fact distinction is sufficiently robust to allow one to say that it would not be manifestly unfair to hold the defendant to a confession that was only made because of a mistake of law.

Stop the discussion!

The dissent in R v MacDonald, 2014 SCC 3 (17 January 2014) is so cogently reasoned that one wonders why the majority didn’t refer to it or try to rebut it.

Although I call the judgment of Rothstein, Moldaver and Wagner JJ a dissent, it is really a concurrence in the result and a dissent on an important point of law.

This is one of the annoying things that sometimes crop up in multi-judgment cases: they can look half-baked, as if someone said, “Time’s up, stop writing!” before the majority judges had a chance to say why they disagreed with the minority.

I have always thought that R v Mann, 2004 SCC 52, [2004] 3 SCR 59 required reasonable grounds to suspect the existence of facts that made necessary an unwarranted search of a person who had not been arrested. See the heading to my comment on that case on 26 August 2004.

The minority in MacDonald thought that too, as had other Canadian courts in decisions mentioned in their judgment.

Importantly, the minority focus [68]-[69] on the phrase in Mann “...reasonable grounds to believe that his or her safety or that of others is at risk ...” and at [70] conclude:

“The language of Mann thus appears to stack a probability on top of a possibility — a chance upon a chance.  In other words, Mann says a safety search is justified if it is probable that something might happen, not that it is probable that something will happen.  As this Court only recently explained, the former is the language of “reasonable suspicion” (R. v. MacKenzie, 2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74).  The latter is the language of “reasonable and probable grounds”.”

I mentioned MacKenzie here on 3 October 2013.

Further, the facts of MacDonald plainly show that the officer here did entertain a suspicion, not a belief [85], and that this was objectively a reasonable suspicion but it would not have amounted to a reasonable belief [83].

Judicial decisions are not always the best way to develop the law, as the minority note [90]:

“In the end, this case illustrates the danger of leaving police powers to be developed in a piecemeal fashion by the courts.  Today, our colleagues impose a standard requiring that an officer have reasonable grounds to believe an individual is armed and dangerous before a “safety search” is authorized, effectively overturning the search power recognized in Mann and a decade of subsequent jurisprudence in the process.”

When I noted Mann, nearly 10 years ago, our legislation required reasonable grounds to believe in the context of a warrantless search for an offensive weapon, but now this has changed to reasonable grounds to suspect: s 27 Search and Surveillance Act 2012. The Act, although in some respects controversial, is at least rational.