Sunday, May 18, 2014

Harmless lawbreaking by judges

There are times when judges fail to obey the law, in the conduct of trials, but that failure doesn't matter. For example, in Stout v R (British Virgin Islands) [2014] UKPC 14 (13 May 2014) the judge had not properly warned the jury about the dangers of reliance on hearsay evidence, yet, in the context of the trial, this did not affect the verdict and did not result in unfairness, and the Board upheld the conviction.

This does not mean that trial judges can ignore the law when they feel sure that the defendant is guilty and will be found guilty. The judicial oath requires of judges that they will administer and apply the law. The formal phrasing of the oath varies but typically contains the essential phrase "I will do right to all manner of people after the laws and usages of ... without fear or favour, affection or ill will".

So a judge who has failed to follow the law, but whose trial has survived an appeal, cannot simply relax in the coffee room and boast about getting away with it. The judge should feel a sense of shame and resolve to learn more about the law. And I don't know any judge who wouldn't.

The trial judge in Stout will learn that it is always necessary to explain to the jury that the absence of an opportunity to test the accuracy of the maker of a hearsay statement can be a significant disadvantage for a defendant [17]: 

"Hearsay evidence is indeed admissible, providing the necessary statutory conditions are met, and this evidence was admitted without objection. But it always suffers from the disadvantage that the jury cannot see the source of it and cannot see his accuracy tested. Of course, how far this disadvantage may affect the reliability of the evidence varies considerably from case to case, but it is important that the jury be confronted with the need to think about it."

And here there were two possible sources of error that the jury needed to be made aware of: the possibility that the original maker of the statement was wrong, and the possibility that the reporter of the statement was wrong.

"[17] ... The explanation or warning required is not of great complexity. In a case where the jury has seen other witnesses challenged and tested in their evidence it is usually simple to remind them of the process, to observe that a witness does not always leave the witness box with his evidence as secure as when he started and to invite them to remember that the hearsay evidence cannot be subjected to the same kind of examination."

There can be very good reasons why counsel in a trial may not object to the admission of hearsay evidence, as no doubt there were here - for example by using it to bring out inconsistencies in the prosecutor's case - but that does not absolve the judge of the responsibility to instruct the jury on the dangers and disadvantages of evidence of that kind.

Given that, as the Board concluded, the trial result was not affected by the judge's error, why was the trial fair if it was not conducted according to law? The answer is that none of the requirements of trial fairness were absent: the law (the elements of the offence of murder) was accurately applied to facts that were determined impartially. There was nothing in the trial that caused the jury to give inappropriate weight to any item of evidence to the extent that the jury could be called partial. Even if the jury had, as a result of not being adequately instructed on the dangers of hearsay evidence, given more weight than it otherwise would have to what the victim had reportedly said, there was sufficient other evidence in the case to make that error immaterial, in the sense that the same weight would have been given to the victim's statements in the light of other evidence.