When due process fails - the importance of legal representation: Watson v R (Bahamas) [2023] UKPC 32

A cluster of embarrassing errors in the Court of Appeal of the Commonwealth of The Bahamas led to a successful appeal by the offender in Watson v R (Bahamas) [2023] UKPC 32. I say “embarrassing” because the errors were so fundamental. But, strange to say, oversights of this nature can easily occur.

The appeal Court had quashed a conviction for murder, substituted manslaughter, and in place of the original sentence of death imposed 50 years’ imprisonment. This sentence was imposed without hearing submissions on what the appropriate sentence should be.

There was, therefore, a breach of natural justice amounting to a serious breach of procedural fairness [19]. This was compounded by the Court’s failure to give reasons for the 50-year sentence  [39]. The Court had not accounted for the difference in the law of The Bahamas between murder (for which recklessness as to death is not sufficient for liability) and manslaughter [30]-[31], [35]. Additionaly, the Court had failed to give the offender credit for time spent in custody [44]. Essentially, the Court had acted on too little information.

But confidence in the Court of Appeal’s integrity is reflected by the Privy Council referring back to the Court of Appeal the sentencing determination. In a sense this allows the Court of Appeal to assess the effects of its own error.

The ease with which a court can slip into fundamental error is also illustrated by an appeal (now of historical interest) from New Zealand: Taito v R (New Zealand) [2002] UKPC 15 . Essentially, the Court of Appeal had been over-burdened with administrative tasks, and these seem to have got in the way of the Court’s perception of justice. Legislation - since repealed and replaced [1] - had required the appeal court, through its Registrar, to determine the legal aid applications of prospective appellants in criminal cases. This requirement was accommodated by the practice of the Registrar referring the issue to three judges of the Court who would assess the merits of a proposed appeal and, if no arguable ground upon which the appeal might succeed could be discerned, the Registrar would be directed to refuse legal aid and the appeal would be dismissed without a hearing. This was felt to be most unsatisfactory by many judges, and the complex policy considerations that had come into play in the environment of fiscal constraint were mentioned by Sir Ivor Richardson in “The Courts and Access to Justice” (2000) 31 Victoria University of Wellington Law Review 163. [2] The practice that had been adopted is described in Taito. Although pragmatic, the adopted procedure did not comply with statutory requirements for the hearing of appeals. In none of the 12 consolidated appeals in Taito had the Court heard argument, the appellants were not present or represented, and the judge delivering the determination either had no knowledge of the available information or had previously concluded that legal aid should not be granted as there was no arguable case. There was no exercise of judicial judgement in the disposal of the appeals. Where applicants for legal aid had sought review of their refusal, review was refused without reasons and without requests to be present being met.

The procedure that had been used by the Court of Appeal in Taito was a well-intentioned attempt to find a practical way of dealing with unmeritorious appeals, but as the Board observed, decisions as to merit could only be made after observance of procedural due process. Further, failure to supply some of the appellants with copies of the documents considered by the Court was also a source of discrimination because such an error could not have occurred had the appellants been represented by counsel. This, said the Board, was “contrary to fundamental conceptions of fairness and justice.”

Unrepresented litigants take up a disproportionate amount of the courts’ time, a point noted by Sir Ivor in his article published in 2000 and referred to above, and he added that refusal of legal aid can be a false economy. Representation by counsel is a way of promoting procedural fairness, and absence of representation can result in rights being rendered meaningless. It is easy enough for courts to make fundamental errors, as is illustrated by Watson, above, and representation by counsel cannot be regarded as an indulgence: it is a protection, although not a guarantee of compliance with due process.

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[1] See the Legal Services Act 2011.

[2] Preliminary screening of cases where an appellant sought legal aid by a panel of three judges of the Court of Appeal was a long standing practice, referred to in an earlier article by Sir Ivor: “The Role of an Appellate Judge” (1981) 5 Otago Law Review 1 at 5: “Coming next to criminal cases, because there are so few that involve only matters of law, leave to appeal is ordinarily required. In most cases, too, legal aid is sought and there is a preliminary screening by three of the judges to determine that. If any of the three has any reservations about any of the matters raised, for example, as to the directions given in the summing up, or as to the admission or rejection of evidence, or as to the sentence, then legal aid is granted and the appeal is set down for hearing. If not, legal aid is refused and the application for leave to appeal is called and dismissed without a hearing, unless in the meantime, for example, because of matters raised in further written submissions, the Court decides to hear full argument.” Plainly, unrepresented defendants were expected to know a lot of law.

Interpreting legislation, judges as not-machines, and what should we learn? Hemert v R [2023] NZSC 116

Recently, in Hemert v R [2023] NZSC 116, we were given an illustration of statutory interpretation aided by reference to extraneous material. [1] At [57] the majority (with Williams J agreeing at [111]) refer to a report from the Law Commission which mentions how the relevant section should be interpreted, and to the absence of any contrary indication in the debates that Parliament had in the course of passing the legislation. Accordingly, the natural meaning of the enactment applied, and the Court held at [63] that this had been misconstrued by the Court of Appeal.

That’s all very well, and there is of course much more of interest in this case. But what I have summarised does raise the question, what would the approach be if proper judicial assessment of the natural meaning of legislation was in conflict with what other bodies - such as the Law Commission and Parliament (or more accurately, politicians in the course of debates in Parliament) - had indicated?

The Legislation Act 2019 does not explicitly endorse reference to such extraneous materials. Whether s 10, the relevant section here, does implicitly allow that in the search for the “purpose” of the legislation, and to any relevant material for “context”, is a matter upon which screeds may be written. Generally, enactments are taken to preserve as much of the existing law as is possible (or, as is sensible, given that they are usually intended to change something). Reference to extraneous materials was a common practice before the Legislation Act came into force, replacing earlier legislation on the interpretation of legislation.

Constitutionally speaking, the courts interpret and apply legislation. Independence of the judiciary implies that individual people, whether unelected officials who work on drafting legislation, elected members of Parliament, or legal experts who do not represent any party to litigation and who are not called upon to assist the court with submissions, do not tell the courts what enacted law means. It is for the legislature to make the meaning of its enactments intrinsically clear.

Still, opinions may differ over those matters. When judges find support for their own take on what is a natural meaning of legislation in the work of extraneous bodies, they may be inclined to cite that work in support. No harm is done by that, and it may provide further clarity.

Of course, as Williams J is careful to point out at [112]-[113], application of a prescribed phrase to particular circumstances can be difficult, and its meaning may not be static where “contemporary community attitudes and values” must be taken into account, so that it may need to be developed incrementally but only as necessary. This is, we may observe, the process whereby the law shifts to meet the needs of the community as judicial experience and judgement is brought to bear in individual cases.

In some ways this approach to interpreting legislation is like the development of the common law. Who can really forget what Julius Stone said [2] (I paraphrase in order to remove some of the diction which now appears rebarbative):

“… changes in legal precepts by reference to contemporary social facts and ideals … [are brought about by] the person in the appellate judgement seat, imbued by a life-span with some of the temper, perplexities, insights, preferences and values of their generation. When we ask how [this change in precepts is to occur], the answer is certainly not in the giving of judgements which conform to predictions based on past performances. It is rather in deciding what is now just [as the judge sees it].”

Stone was writing in 1966 about how machines cannot adequately replace human beings in the judicial role. “[Judges], in doing justice, seem always to be transcending the drive, methods, and limits of mere intellect.”

And from Stone it is worth turning our attention to a lecture delivered by the Chief Justice of New Zealand on 13 July 2023, marking the occasion of the 150th anniversary of the Law School at the University of Canterbury, Christchurch, New Zealand. This asks, if I may put it generally, what topics should be included in a law degree, aside from the core subjects? This may leave one wondering if there is any room for more than there now is, or whether some subjects could be dropped. The central concern seems to be putting the law in the context of the community and its institutions (its “systems”). Getting students acquainted with how things are done, and with what should be done, has its place in the law degree.

This is not to ignore the reality that most law graduates will learn in practice more of what they need to know than they could ever be taught at law school.[3]  In the environment of office, courtroom or other workplace, an awful lot of education goes on. So, what are the surviving effects of a law degree? The mind trained to analyse and reason in the legal way, to locate relevant law both legislation and case law, and to work towards a goal desired by the client. A mind that could not be imitated by a machine.

In going to work in criminal law, most graduates have left their formal study of the subject several years in the past. There are plenty of training opportunities provided by the profession [4] to get such graduates back up to speed, and there will be colleagues who are ready with advice and assistance. Refresher seminars in the law of evidence and procedure will also be available, as will opportunities about contextual matters such as client relations, cultural contributions to legal process, and working with state agencies.

The Chief Justice’s points are, of course, well made, but it seems to me that there are plenty of ways of accommodating them outside of formal university education. University study at the undergratuate level should be devoted to getting an understanding of the intellectually demanding aspects of legal education: the substance of the subjects, their interrelationships, and the qualities that make them “law”. [5] And skills in utilising the advantages and avoiding the dangers of AI generated text will have to become second nature for students, with emphasis on accessing official versions of judicial decisions and legislation, and genuine copies of secondary materials.

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[1] The issue was interpretation of the phrase “the evidence of the offence and the circumstances of the offender” in relation to whether a life sentence for murder would be manifestly unjust. The Supreme Court held that these two elements - the evidence and the circumstances - were to be considered in the round, so that although the evidence of the offence might of itself not make a life sentence manifestly unjust, when considered with the circumstances of the offender the life sentence could be manifestly unjust, although not in this case.

[2] Julius Stone, Social Dimensions of Law and Justice, Stevens and Sons, 1966.

[3] I left my formal undergraduate law studies not knowing what bail is, but after a morning in the Magistrates' Court (observing, in preparation for becoming a duty lawyer) I certainly did know. No one was disadvantaged by my ignorance. In due course I did find a use for the considerable amount of law that I did know. Many people were advantaged by that. As Adam Gopnik observes in The Real Work - On the Mystery of Mastery (2023), "The real work is what we do for other people."

[4] What could be more wonderful than “continuing legal education”- a now institutionalised requirement. Just saying it makes us feel better.

[5] And (don’t let me go on about this), some law schools appear to gain status by heaping an awful lot of work on students, to the disadvantage of the slow, thoughtful readers.