This blog has now existed for sixteen years.
Longer than Prime Ministers, Presidents, and most Chief Justices.
Longer than much of the relevant legislation.
Longer than most prison terms.
Longer than most people stay in the same job.
Longer than most people stick with a hobby.
Longer than most marriages.
And, one hopes, longer than the pandemic will be with us.
(This is not a poem.)
This, my 701st post, is about authority and precision as aspects of the rule of law.
Borrowdale v Director-General of Health [2020] NZHC 2090 is about some official statements that were made in the earliest days of our Covid-19 lockdown.
Were these statements law?
The Director-General of Health had the power to make statements of law, but this power was given by (the then) legislation to him alone. The Prime Minister did not have that power, so statements she made at media briefings were not law. Nor were interpretations of the Director-General’s statements of law, issued by various officials.
Unfortunately, the Director-General did not initially realise that it was all up to him to make law. He apparently thought that his role was advisory and that the PM and the Minister of Health could issue statements that were legally binding.
This could be what led to the Director-General speaking in terms that any lawyer, and most people, would regard as imprecise. It also led to the PM speaking vaguely, issuing encouragements (which would have been appropriate) but couched in mandatory terms (which were unlawful). These caused people to confine themselves to contacts with only a few people in their “bubble”, thinking that doing so was a legal obligation.
The Full Court of the High Court held that the unlawfulness was justifiable. That apparently means that no one is liable for the unlawfulness. Fair enough, of course, since things were done under urgency and the first consideration was public safety.
The Court said (at [291]), “The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable.”
There is a distinction between stating the law and interpreting it, and this is illustrated by the Court’s upholding of the lawfulness of the Director-General’s order that all but “essential businesses” must close, because "essential businesses" was defined in that order in a way that was “clear and fixed” (at [279]), notwithstanding that the list of such businesses, prepared by other officials and published online, changed from time to time. The list was legitimate interpretation, an executive function. The definition was “certainly broad, but we think it has parameters and was capable of being given an ascertainable and reasonable meaning in any individual case” (at [276]).
You can see that this is a rather delicate matter. I remain concerned about the limitations on people’s right to exercise, and the vagueness of the current requirement that places of exercise must be “readily accessible” (see my update at the end of this post). A readily accessible distance to walk for an athletic person may not be for a sedentary enforcement official or a sedentary judge.
Furthermore (grrr...) today we had an example of official confusion of advice and order, in the Minister of Health’s 1.00pm media update on the crisis.
He is reported to have said, “stay in your bubbles, don’t go out unless you have to, and please wear a mask if you do have to go out. As the weekend approaches, those rules still do apply.”
It’s the contradiction between “please” and “those rules”: do we have to wear a mask if we “have” to go out, and what sort of restriction is not going out unless we have to?
The Minister’s interpretation of his own order is not part of the order itself. If he wanted to include those restrictions, he should have put them in the order. That is the clarity that the rule of law requires. There is, currently, nothing in the order to require people who go out to wear masks. Plainly, it may well be good sense to do so, and that is all the more reason to put the requirement in the order and so to make it law.
And as for “don’t go out unless you have to”, this is not the law. The order permits going out for “essential personal movement”, which includes “limited recreational purposes”. In ordinary language, recreation for limited purposes is not something one has to do. Recreation is not compulsory, but it is permitted, despite the Minister’s comment suggesting there is a rule prohibiting it.
That this sort of bumbling obfuscation should have occurred the day after the Borrowdale decision was published – when it must have been fresh in the Minister’s mind – is most unfortunate.
This Report is essential reading for counsel who are considering calling expert psychological evidence with a view to challenging the accuracy of a complainant’s evidence in a sexual violence case. It is also essential reading for any psychologist who has to decide whether proposed testimony in such a case will withstand attack for scientific unsoundness.
Its survey of the scientific literature that has been cited by experts when providing evidence about why a complainant may be mistaken about a relevant matter in a sexual violence case may well leave the reader with the impression that such scientific experimentation that has been done is rudimentary, flawed, and of negligible real relevance to such cases.
For example, on the topic of eyewitness identification and transference, the authors point out that research on mistakes made involving perpetrators who are strangers to the complainant is misleading or plainly wrong if applied to a case where the defendant is well known to the complainant. Similarly, in relation to studies on the “post-event (mis)information effect”, where in laboratory studies participants are deliberately given misinformation about what happened to see how that impacted on their subsequent accounts. These have a relevance problem: they mostly involve misinformation about minor, unimportant or subtle details, not the major details of a traumatic experience, or they involve observations of an event, not participation in it. They do not, and of course ethically cannot, concern sexual violence committed on the subject of study. Nor is there current scientific literature on the relevance of a sexual violence complainant’s confidence in giving evidence to the accuracy of that evidence, and the accuracy-confidence question is not settled science.
Similarly, false memory implantation studies are generally so artificial as to have minimal relevance to cases of sexual violence. They may be of relatively innocuous events, or carried out on university students, or use degrees of suggestion or social persuasion that have no relevance in the circumstances of a trial. And where there has been an ongoing relationship between the complainant and the defendant, there appears to be no research on how that might have affected complainants’ memories of abuse.
This is not to say that everything is necessarily uncertain. The authors summarise points on which a general consensus been established (with inevitable case by case exceptions) about children’s memory reports and suggestibility, including the danger of suggestive questioning, the loss of peripheral detail when there is delay, and the loss of detail of each episode when abuse has extended over a long period. Importantly, the authors offer guidance on how to evaluate experimental studies on children’s memories of sexual abuse, and stress the need for expert witnesses citing scientific studies to express the uncertainties of such evidence. Experimental research “does not and cannot represent the complexity and severity of sexual abuse.” (p 127)
Briefs of evidence that have been used in the cases surveyed here have tended to cover standard topics, even when not relevant to the case in which they are intended to be used, they tend to speculate on things such as post-event misinformation and transference, citing research but omitting to repeat reservations that the researchers may have expressed, such as the doubtful relevance of experimental studies to sexual abuse cases, or not declaring when their opinion does not have consensus within the literature.
The importance of recognising the body of knowledge available to clinical psychologists is also discussed by the authors. I imagine they would have more experience with genuine victims of sexual abuse and violence, rather than with liars, so they would not be ersatz lie detectors. Just potential myth-dispellers. The authors’ aim is to enhance complainants’ access to justice, and it is to be hoped that the defence, prosecution and judicial participants in court process will benefit from this valuable resource.
This suggests a two-step approach to the evidence as a whole. First is the filtering out of evidence that, on an overview, the fact-finder rejects because it must be wrong. For example, evidence of a cast-iron alibi may mean that an eyewitness identification of the defendant at the scene must be wrong. The eyewitness evidence does not, in those circumstances, carry a possibility that it may be right. Second, considering all the remaining evidence, some may obviously be right, for example because there was no dispute about it, and some may most likely be right but with a smaller possibility that it is wrong. This sort of evidence is not taken on an all-or-nothing basis because the possibility of it being wrong is relevant to its probative value and to whether on the whole of the evidence there is a reasonable doubt about the defendant’s guilt.