The interests of justice and time limits for filing conviction appeals: Pierre v R (Bahamas) [2023] UKPC 15

Legislation that leaves judges to decide an issue “in the interests of justice”, without any indication of what that means, can leave us wondering if there is any law involved in the decision process.

An example is a decision whether to extent the period in which a person may file an appeal against conviction, so as to override a statutory limitation (often 20 working days) on that period.

In the absence of statutory guidance, beyond referring to “the interests of justice”, it is for judges to work out in case law what that means. To the extent that such case law actually assists in the decision process, the decision is a matter of law. Otherwise, it is just a policy decision, at risk of being arbitrary and not law at all, even though made by judges.

The Privy Council has recently addressed this decision: Pierre v R (Bahamas) [2023] UKPC 15 (11 May 2023).

The decision whether to grant an extension of the period within which an appeal against conviction may be filed is a balancing exercise [28]. It is characterised by flexibility [29]. The ultimate question, whether extension is in the interests of justice [26], requires consideration of the overall justice of the case, taking into account the important public interest in the finality of legal proceedings, the efficient use of judicial resources, good administration, the interests of other litigants, the interests of victims and their families, and the interests of witnesses [27]. An extension of time should be granted if the appeal may expose an injustice, and each application will turn on its own facts and circumstances as the discretion is unfettered and extremely wide, and the interests of justice may require departure from legislated time limits [30].

All these matters are nebulous and don’t help to clarify what the threshold is for granting an extension of time to file an appeal against conviction. It is trite and unhelpful to say each case turns on its own facts and circumstances. In adding the various considerations to the interests of justice, the Board seems to have redefined what the interests of justice means, but without setting out that new meaning.

The expression “in the interests of justice” usually means in the interests of correctly deciding an issue according to law. The issue here is the conviction and its correctness in law. All that should matter when deciding whether an appeal should be heard is whether there is a reasonable prospect that the appeal will be successful. There are questions subsidiary to that, such as whether the arguments proposed to be advanced have previously been determined correctly, whether a legal point was overlooked or wrongly decided in the earlier proceedings, and whether any new evidence could cast doubt on the conviction.

It might be useful to look at legislation governing when a criminal cases review commission can refer a conviction to an appeal court. If such a reference is made, the appeal court must hear the appeal. Legislation may state that the governing criterion for the commission’s decision is the interests of justice, and specify some matters that must be taken into account.

An illustration is New Zealand’s Criminal Cases Review Commission Act 2019, s 17. The matters listed in s 17(2)(a)-(c) are helpful, but the addition of (d) “any other matter that the Commission considers relevant”, while serving as a sort of safety net to avoid excluding meritorious references arising from circumstances that can’t be predicted, could potentially have the unfortunate effect of allowing the Commission to refuse to refer a case on grounds that extend the meaning of “the interests of justice” to include the dreadful inertia of the justice system (the so-called interest in the finality of judicial proceedings), an apologetic reference to the inconvenience of diverting resources to the issue, and a simpering solicitousness for the supposed interests of victims and prosecution witnesses.

Fairness, efficiency and case mismanagement: R v Haevischer, 2023 SCC 11

I once knew a judge whose smile was upside down. The corners of this person’s mouth almost reached the jaw line. When I first noticed this, I thought the condition must be neurological. Then I noticed it in many judges, so it must have been contagious.

If inverted happiness is a judicial condition, what causes it? What is its relationship to sadness? Sadness should be unknown among judges, as they have chosen to have reasonably secure employment without any of the pressures of running a law practice. They can approach each case without a care in the world. Which side wins or loses should be of no concern whatsoever to the well-balanced judge.

But there are some pressures on judges, although they are pseudo-pressures, invented by people who care about time and motion efficiency. Judges are closely policed by such officials. It would be scandalous now, whereas I can remember when it was unremarkable, for a courtroom full of counsel, clients and their supporters, to wait until as much as an hour for a judge to return from a long wet lunch at the club. 

Judges are supposed, nowadays, to make rapid decisions in the summary jurisdiction. There will be some lawyers still in practise who can remember a judge in Auckland who, after hearing all the witnesses in summary cases, would spend 20 minutes or so sitting in silence at the bench, presumably mulling over the evidence, before delivering oral verdicts that almost invariably resulted in convictions. That judge, like nearly all judges, was a thoroughly decent person, and no one would have thought of complaining about such a leisurely approach to judicial work.

Now, judges are supposed to engage in “case management”. This is an invention of time-and-motion experts who apparently had little appreciation of the importance of judicial disengagement with trial preparation. Accompanying this is an unrealistic expectation that each side of a criminal case will cooperate with the other to achieve efficient disposal of a case, as if it were a civil matter.

We didn’t used to have disclosure requirements (except for notice of alibi), and defence counsel would not expect to be given any information about the conduct of the preceeding investigation. All that could come out in voir dire hearings, which, if they were used at all, occurred during trials. But now there seems to be immense fear of inconveniencing juries by sending them out of courtrooms while voir dire hearings, which can be quite lengthy, are held. Such hearings are now usually held before trials, and are scheduled in separate case management hearings. Case management tends to generate multiple pre-trial hearings, as judges are now expected to care about whether a defendant pleads guilty before trial so that trial schedules are not disrupted by unexpected guilty pleas.

Defendants are given incentives to plead guilty before trials. Aside from jeopardising counsel’s income, pre-trial guilty pleas presuppose adequate disclosure of information about the way evidence was obtained, and encouragment of such pleas is assumed not to place improper pressure on innocent people to plead guilty. That presupposition and that assumption are quite unrealistic.

With lengthy lists of cases awaiting trial, pressures on judges to place pragmatism above careful conduct of trials according to law, can result in case management becoming case mismanagement.

A reminder of the need to lawfully conduct case management of trials is given by the Supreme Court of Canada in R v Haevischer, 2023 SCC 11. I do not suggest that any of the thoughts I have set out above reflect what actually happened in this case, but it does illustrate an incorrect approach to a refusal in case management to set down a defence application for a stay of proceedings prior to trial. A refusal to do that is only lawful if the application is, in Canadian law, “manifestly frivolous”. The Court, in a unanimous judgment, explains in detail what that threshold means. Every judge who works in the criminal jurisdiction should study this judgment.