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 Legislation - since repealed and replaced [1] - had required the appeal court, through its Registrar, to determine the legal aid applications of prospective appellants in criminal cases.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.
