Rights and the clutter of precedent: prisoner access to judicial determination of recall

A prisoner who has been recalled to prison after being released on conditions during the term of the sentence may wish to have the legality of that recall determined judicially rather than by executive decision.

Generally, parole boards do have to act judicially: see for example R v Parole Board, ex parte Smith and West [2005] UKHL 1, discussed here on 31 January 2005, but an executive decision might only be constrained by the need for it to be reasonable: compare R (Black) v Secretary of State for Justice [2009] UKHL 1, discussed here on 22 January 2009.

In the absence of a specific avenue of recourse to a judicial body, prisoners may look to international law for the right to have their recall to prison determined by a judicially. For example, the International Convention on Civil and Political Rights provides in Article 9.4 that

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

And the European Convention on Human Rights, Article 5.4, says the same thing:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Whether there is recourse to a right in international law will depend on the domestic legislation, which may exclude it, incorporate it, or be unclear.

Statutory schemes for prisoner release vary, but there is a general pattern, always subject to local variation. Broadly, there are two sorts of release during a sentence of imprisonment. First, during an early part of the sentence but after a period has elapsed, there is discretionary release. The prisoner is not entitled to be released at this stage, but if released may be recalled for some reason such as the impracticability of ongoing electronic monitoring. Secondly, after a set proportion of the sentence has passed, the prisoner may become entitled to release, although again may be recalled during the remainder of the sentence, usually only because it has become clear that the release entails an ongoing risk to the safety of a person or of the community.

Can prisoners who have been recalled after discretionary release expect to have access to a judicial determination of the lawfulness of that recall?

The United Kingdom Supreme Court has unanimously held no: Whiston, R (on the application of) [2014] UKSC 39 (2 July 2014). Lady Hale, in her brilliantly clear separate judgment, points out that this case decides that point only, not the question of access to judicial determination where a prisoner who was entitled to be released has been recalled.

But Lord Neuberger, jointly with Lords Kerr, Carnwath and Hughes, applies Strasbourg jurisprudence “as explained and applied in Giles” [43]. This refers to R (Giles) v Parole Board [2004] 1 AC 1, in which Lord Hope said at [51]:

“Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.”

This distinguishes determinate sentences (that is, sentences where the court has fixed the term) from indeterminate sentences (where the court has imposed life imprisonment or preventive detention). Although the concepts of judicial review and judicial determination are not distinguished, Lord Hope concluded that access to a judicial tribunal is only available to prisoners recalled during indeterminate sentences.

Lord Neuberger agreed [38], adding that the prisoner still has domestic remedies [40].

Instead of lumping all determinate sentences together, Lady Hale distinguished between prisoners who have been recalled from discretionary release (no access to judicial determination) from those recalled from release to which they had been entitled (access to judicial determination). The Parole Board, being required to act judicially, is the appropriate tribunal.

The difference is therefore between distinguishing between prisoners who are serving determinate, as opposed to indeterminate sentences, or between prisoners who were given discretionary release and those who were entitled to be released, during their sentences.

Lady Hale recognised that one Strasbourg decision was inconsistent with her analysis [57] (and [52]-[53]), but she suggested that its weakness was that it failed to appreciate the strength of a prisoner’s right to be released after serving a specified proportion of a sentence [53]. Lord Neuberger replied that the ECtHR may wish to reconsider its jurisprudence but currently he considered it had the effect that he had stated [49].

Lady Hale pointed out that the majority judgment went beyond the issue in this appeal, and that to the extent that she disagreed with it, it was obiter dicta [59].

Given that a prisoner on an indeterminate sentence has access to a judicial decision on recall, it certainly seems strange that a prisoner entitled to release does not. No doubt the majority in Whiston, if free to decide the issue unimpeded by the clutter of precedent, would be inclined to recognise that issues of breach of rights should always be open to judicial determination.

That is the point of general interest in this case. I should stress that local statutory schemes for release of prisoners may leave no room for issues of this nature. Whether that brings legislation in conflict with internationally recognised rights, and if it does, whether there is a remedy, is a different matter. On the Strasbourg interpretation, only recall during indeterminate sentences can be judicially determined, but on the alternative interpretation judicial determination is available if the relevant legislation gives a prisoner the right to be released after serving a proportion of the term. Some legal systems may already provide that remedy, for example by requiring all recall decisions to be made judicially by a parole board.

The faster you go the bigger the mess?

One reflects, as one must, on the appellate delay in Sabapathee v The Director of Public Prosecutions (Mauritius) [2014] UKPC 19 (25 June 2014).

There is nothing exceptional about the offending, and sentencing should have been routine. But the judge’s lenience in imposing a fine led to appellate squabbles over whether imprisonment should have been imposed instead.

These squabbles – or, as we call them in law, proceedings – lasted about 3 years and eight months. During that time the defendant had got on with life [34]:

“There have been changes in the appellant's personal circumstances since his conviction. He is now married, his wife is pregnant and he has employment at a gym. The offence was a serious one and the Board is not persuaded that it would be grossly disproportionate for the appellant to serve a period in custody for it, but it is satisfied that it would be grossly disproportionate, in all the circumstances that he should now be required to serve a sentence as long as three years. The Board concludes that the appropriate course is that his appeal should be allowed, the sentence of three years imposed by the Supreme Court should be quashed and there should be substituted a sentence of 18 months' imprisonment, less the period spent by the appellant on remand in custody.”

The offence – possession of about 70 grams of cannabis for supply – was initially punished by a fine, then, on the prosecutor’s appeal, by imprisonment for 3 years (suspended pending the outcome of this appeal). The Board recognised that a sentence of 3 years’ imprisonment could properly have been imposed at first instance and that a fine was manifestly inadequate [32].

One year and 10 months elapsed between the imposition of the fine and the first appellate court’s judgment, and the Board’s judgment was delivered approximately 1 year and 10 months after that.

Given that the appeals both took about the same time, should the Board’s criticisms of delay be confined to the local proceedings? The Board said [25]:

“The Board is aware that judicial resources in Mauritius are strained, but that is not a satisfactory explanation for the length of time which elapsed in this case. The Court record shows that the hearing of the appeal on 13 February 2012 occupied the Court for 47 minutes. The date of the appeal appears to have been fixed at hearing on 15 February 2011, at which the parties were represented. The Board is not aware of the full circumstances, but on the face of it the Board considers it highly regrettable that an appeal of this kind should be fixed for a hearing date in a year's time. It is also regrettable that it took nearly six months thereafter for the court to deliver a 4 page judgment.”

This invites us to note that the Board took 3 months to deliver a 10 page judgment (pdf version).

And so, one inevitably asks, if 3 judges take 6 months to write 4 pages, how long should it take 5 judges to write 10 pages?

According to my calculator, and assuming, to be generous, judges work in the weekends just like we do: the Supreme Court of Mauritius wrote at the rate of 0.015 pages per judge per day, and the Board wrote at virtually the same rate: 0.022 pages per judge per day.

Privacy and electronic records

At common law a cell phone, seized when a person is arrested, cannot be searched. I say “at common law” because the rule may be modified, subject where relevant to any constitutional constraints, by legislation, which, for example may provide for authorisation of such a search by warrant.

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,”... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”

Riley v California, USSC No 13-132 (25 June 2014), Roberts CJ delivering the opinion of the Court.

The Supreme Court of Canada has similarly recognised the enhanced privacy interests that can be associated with electronic information, holding that a warrantless obtaining of information about a computer user’s name and address, from an internet service provider, was illegal, where the information was used to link that person to particular internet usage: R v Spencer, 2014 SCC 43 (13 June 2014). But here the illegally obtained evidence was admissible because the public interest in obtaining a conviction outweighed the breach of the defendant’s privacy.

A breach-but-admissible result also occurred in R v Cole, 2012 SCC 53, noted here on 9 November 2012.

Activity can be called a search if it involves a breach of a legitimate privacy interest (both Riley and Spencer illustrate this) or if it involves a trespass (there are many illustrations; see for example United States v Jones mentioned briefly here on 31 March 2012).

In Spencer the Court did not assert that there is a right to privacy (anonymity) in relation to online activity, only that there can be such a right [49]. The Court referred to its previous recognition of significant privacy interests in relation to online activity in R v Morelli, 2010 SCC 8 (CanLII), 2010 SCC 8, [2010] 1 S.C.R. 253, at [3], noted here on 23 March 2010, R v Cole above, and R v Vu, 2013 SCC 60 (CanLII), 2013 SCC 60, [2013] 3 S.C.R. 657, at [40]-[45], noted here on 17 November 2013. One might fairly ask whether it is appropriate to make the existence of a right dependent on circumstances. More logically, a right does, or does not, exist, and if it exists, the next question is how it interacts with other rights.

For an example of legislation that modifies the common law on search of electronically stored information, see my comments on Vu. That legislation, which I blush to admit is New Zealand's, seems to authorise a search of a cell phone in circumstances which include where a person can be searched without warrant, not merely where there are reasonable grounds to believe relevant information will be found, and not on the lesser threshold of reasonable grounds to suspect, but simply on the basis that the information "may" be found.

I do not think that Riley justifies a reading-down of statutory powers of warrantless search in New Zealand. The express power in s 88 of the Search and Surveillance Act 2012, coupled with the elaboration of the powers in relation to places and vehicles in s 110 and persons in s 125 are not stated to be only exercisable if it is impracticable to obtain a warrant. But the overarching requirement of s 21 of the New Zealand Bill of Rights Act 1990 is one of reasonableness, implicitly both as to the decision to exercise the power of warrantless search and to the manner of carrying out the search. An issue of reasonableness will be a case-specific inquiry. It would be wrong to say that a warrantless search of a cell phone or a computer that was in the possession of an arrested person will always be unreasonable.

Who shall yield? Recovering proceeds of crime from joint offenders.

Forfeiture orders, to recover benefits obtained by crime, may be issued against each participant in the offending for the full amount of the group’s benefit, so that the total of the orders may exceed the total of the benefit obtained: see R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008), discussed here on 16 May 2008.

The Supreme Court of the United Kingdom has now held that in such cases each order should be subject to a condition:

“ ... that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit.”

R v Ahmad [2014] UKSC 36 (18 June 2014) at [74] (the Court’s emphasis).

This case follows and clarifies the line of authorities beginning with May, Green and Jennings [39].

In particular, “obtained” in this statutory context of obtaining a benefit from offending has its ordinary, non-technical, meaning. It doesn’t depend on legal concepts involving property transfer. It just means to get something. It doesn’t mean to obtain ownership [42].

Where it is alleged that offenders have obtained something “jointly”, that just means they got it together [44], or they got it between them [45]. In this sense, it can be proper for the court to conclude that where offenders obtained something through acting together, they each obtained the whole of that thing [46], at least in the absence of proof to the contrary [47]-[48].

This conclusion should not be reached automatically, for

“[51] ... Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings.”

But, especially where it is unlikely that all the offenders have been apprehended, it will often be proper to infer that the obtaining was joint [51].

When the obtaining is, in this sense, joint obtaining, each offender is liable for the full amount of the benefit obtained in the joint offending, and the court will not concern itself with squabbles among offenders as to who should pay what (I paraphrase, but see especially [67]).

This liability is subject to the condition quoted above from [74].

Confiscation proceedings (this is me now, not the Court) can raise complex and interesting questions, as is illustrated by R v Waya [2012] UKSC 51 (14 November 2012), discussed here on 2 January 2013. In Ahmad no question was raised about the majority in Waya’s method of determining the value of the benefit, so we can take it that Waya’s authority is undiminished. The market value of what was obtained is determined as at the time of the proceedings for recovery. But this should not be applied too broadly. The statutory context is important, and here the UK legislation was subject to a gloss applied by the European Convention on Human Rights, Protocol 1, Article 1 ("A1P1"), which, as was held in Waya, requires the court to avoid making a disproportionate order. One can distinguish a statutory benefit from a real benefit, and resort to the real benefit where confiscation of the statutory benefit would be disproportionate. For an illustration, see Paulet v United Kingdom [2013] ECHR 13 May 2014, cited in Ahmad at [77]. In jurisdictions not subject to A1P1, statutory limitations on confiscation orders may arise from the need to avoid undue hardship, and one would need to consult the relevant legislation.

People who have to make up problems for students to grapple with may well be thinking along the following lines. If offenders import or manufacture a controlled drug, intending to market it, have they obtained a benefit? Yes, they have got something of value. What value? If the drug was seized by the authorities and thereby forfeited, there was no benefit obtained by the offenders, except in the sense that they had the drug for a period. If they sold the drug, they obtained something of value, and one or more of them may have then bought an investment such as shares or real estate. That value is to be assessed, if Waya is applied, as at the time of the forfeiture proceedings, and it may have diminished since the benefit of the offending was obtained. If another of the offenders used a share of the benefit to make a good investment, there is an inequality, arising probably from mere chance, as between offenders’ loss through enforcement of the forfeiture order. But if there is no evidence of any of that dealing with the immediate proceeds of the drug offending, the court will, applying Ahmad, make an order for equal forfeiture against all offenders, presumably equalling the estimated proceeds of the offending, and ignoring the current value of those proceeds.

Inequities could arise, where orders are made subject to conditions as specified in Ahmad at [74], from the times at which they are enforced. The true benefit may end up being kept by the lucky last, if offenders against whom orders were earlier enforced yielded the full amount. Those earlier enforcements may have been against good investors, whose skill in the markets has protected the share of the offending that can be kept by the others.

And so on. Often the answer, or at least one answer, to these questions will be found in legislation. The legal answer is, as always, able to be evaluated in moral terms. Where there is room to do so, courts should strive to apply legislation in ways that are morally right, and Ahmad illustrates the difficulty of achieving this where constraints on the availability of evidence make fact determination impossible. Some responsibility for the lack of evidence probably rightly rests with the defendant, but where other offenders have not been apprehended and they do not give their account of proceeds, what else can a court do but impose equal liability?

Beyond the law: the kindness of strangers

At common law, once a defendant has been convicted, disclosure obligations change. This is because of the public interest, particularly the interests of victims and witnesses, in the finality of litigation. So a defendant who disputes a conviction has limited rights to disclosure for the purposes of appeal, but even more limited rights – not really rights at all – once usual avenues of appeal have been exhausted.

This is illustrated in Nunn, R (on the application of) v Chief Constable of Suffolk Constabulary [2014] UKSC 37 (18 June 2014), at [23]-[29], [32], [35]. Resources of money and personnel available to the authorities are relevant once criminal proceedings have taken their course:

“[38] It does not, however, follow ... that the law ought to impose a general duty on police forces holding archived investigation material to respond to every request for further enquiry which may be made of them on behalf of those who dispute the correctness of their convictions. Indeed, the potential for disruption and for waste of limited public resources would be enormous if that duty were to be accepted. The claimant's initial requests in the present case for investigation of the finances of the deceased, as well as his earlier applications for sight of the entire investigation files, afford good illustrations of the kind of speculative enquiry which such a rule would encourage. There is no such duty. If the duty of disclosure pending appeal is limited, as it plainly is, to material which can be demonstrated to be relevant to the safety of the conviction, it is all the clearer that after the appellate rights which the system affords are exhausted the continuing obligation cannot be greater than that stated in the Attorney General's guidelines, read as explained in para 30 above.”

Even the Criminal Cases Review Commission does not indulge in inquiries that are merely speculative [39].

Obviously, not every jurisdiction has a body like the UK’s Criminal Cases Review Commission. In any event, once criminal proceedings are over a convicted person who disputes the conviction has a “legitimate interest” in obtaining such proper help as others can be persuaded to give [36]. The burden falls on others, and importantly,

“None of this means that the work of solicitors and others in the interests of convicted persons may not be of great value. There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it, and not only because its funding is not unlimited, but also because accurate legal formulation focuses the mind correctly. Sometimes, such solicitors or others can usefully undertake enquiries of their own, respecting of course the interests of third parties. On other occasions they may well, by their arguments and presentations, enlist the co-operation of the police, or the prosecution, or both: Hodgson was just such a case. The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons. If there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction, then there should be co-operation in making it. It is in nobody's interests to resist all enquiry unless and until the CCRC directs it.”

At this boundary of the law, where no legal rights to action are applicable, a convicted person who has exhausted all legal remedies must rely on (to borrow Tennessee Williams’s phrase) the kindness of strangers.

IQ and intellectual disability

One of the things about the death penalty is that the Supreme Court of the United States has held that no legitimate penological purpose is served by executing the intellectually disabled: Atkins v Virginia, 536 U.S. 304, 312 (2002).

So, what does “intellectually disabled” mean? Currently the medical community defines it as the existence of concurrent deficits in intellectual and adaptive functioning. The courts regard it as proper to consult the medical community’s opinions when it is necessary to come up with a definition.

In Hall v Florida, USSC No 12-10882, 27 May 2014 the issue was whether interpretation by the Florida Supreme Court of legislation, that could be read consistently with the USSC’s caselaw, was constitutional. The Florida court had held that intellectual disability requires an IQ of 70 or less. Mr Hall scored 71 (although as the USSC dissenters in Hall point out he had actually had several tests in which he scored higher). The case is not concerned with what “adaptive functioning” means, only with what “intellectually” means in the expression “intellectually disabled”.

The majority, Kennedy J, joined by Ginsburg, Breyer, Sotomayor, and Kagan JJ, held that the requirement for a score of 70 or under was unconstitutional because it ignored the margin of error inherent in testing. When a score of 70 is within the margin of error, the defendant should pass the first requirement and then have the opportunity to present evidence of lack of adaptive functioning. The decision of the Florida Supreme Court was reversed and the case remanded for determination consistent with the majority’s opinion.

The minority, Alito J, joined by Roberts CJ, Scalia and Thomas JJ, dissented on the grounds that the Florida court’s interpretation was reasonable because it allowed the defendant to present several IQ test scores, and it is known that accuracy increases when more than one test score is considered. The majority’s opinion introduced uncertainty, as to what scores could come within the range that passed the first requirement, and as to how courts should deal with changing medical opinion as to what score indicates intellectual disability. The law should apply society’s standards, not those of a professional body, and the proper focus is on whether the defendant is able to understand the possibility of execution as a penalty notwithstanding diminished ability to comprehend and process information, to learn from experience, to reason logically, or control impulses.

The minority criticised the majority’s method of counting the states when assessing what public opinion regards as appropriate, and pointed out that the majority did not address why Florida’s method of accounting for the risk of test error (by allowing more than one test to be considered) was ineffective.

There is plenty of interesting discussion of IQ testing in this case. The average IQ is 100, a standard deviation is about 15, and two standard deviations below average is taken to be 70, the upper limit for being intellectually disabled (more accurately: the upper limit for meeting the "intellectually" limb of the description "intellectually disabled"). But a test score comes with a range of error, and a person who scores 70 may really have an IQ between 65 and 75, but the range varies according to the range applicable for a given test and the extent to which one wishes to be sure of the result (that is, the degree of confidence). Some tests may carry a lower range of error, so that one could say with a high degree of confidence that a person who scored 70 really had an IQ between, for example, 68 and 72.

An interesting point, from a lawyer’s perspective, was made in the dissent: before this decision, a defendant had to satisfy the court on the balance of probabilities that his IQ was 70 or less. Now, if a defendant may have an IQ in a range that includes 70, he is entitled to go on to produce evidence of his lack of adaptive functioning. The standard of proof is, say the minority, altered.

I note (this is me now, not the Court) that in law we often receive scientific test results without reference to a range of error or a confidence interval. For example, regimes for testing in alcohol-related driving cases usually involve a test result which the defendant can challenge by independent analysis of a blood sample, where one has been taken. It is usual for the prosecutor's analysis laboratory to knock off a bit of the alcohol result just to be safe, so that even if the final reported level is just over the limit, an independent result would probably be higher. If a defendant facing a penalty for an alcohol-related driving offence has an opportunity to challenge the test result, so should a defendant facing the death penalty. Obviously everyone would agree with that. The analogy suggests that it is not necessary to express an IQ score as being within a range of error or as being within a given confidence interval.

Some test results received by courts, such as DNA results, are stated in probabilistic terms, and rightly so. If one were to require a probabilistic report of an IQ test score, one would look for some statistic such as a likelihood ratio: the probability of getting this score, given that that was the defendant’s IQ, compared to the probability of getting that score, given that that was not his IQ. But I suspect that the confidence interval says the same thing, and the question becomes, do courts really need that extra information?

If the reasoning of the majority in Hall were to be applied to evidence of the result of a blood test for alcohol, the effect would be to remove the legal limit. If, as I do, you instinctively side with the majority in cases like Hall, you still have to deal with the logic of the dissent. Instead of ignoring it, like the majority here, you could accept that sometimes in law logic is trumped by experience, and do as the Privy Council majority did in Ramdeen v The State (Trinidad and Tobago) noted here on 28 March 2014.

The prosecutor's discretion

Judicial interference with decisions about what submissions a party to litigation should make will occur only rarely, to prevent an abuse of process: R v Anderson, 2014 SCC 41 (6 June 2014).

Here the issue was whether the court should review a prosecutor’s decision to seek a minimum penalty for a repeat offender on sentence for an alcohol related driving offence.The Supreme Court of Canada, in a judgment delivered by Moldaver J, recognised that the legislation made this a matter within the prosecutor’s discretion, and held [31]-[32], [35] that judicial review of the exercise of a prosecutor’s discretion is generally undesirable and would only be appropriate to prevent an abuse of process.

Prosecutorial discretion must be exercised independently of political or judicial interference [37]. Examples of discretionary matters are: whether to bring the prosecution of a charge laid by police, whether to enter a stay of proceedings in either a private or public prosecution, whether to accept a guilty plea to a lesser charge, whether to withdraw from criminal proceedings altogether, whether to take control of a private prosecution [40], whether to repudiate a plea agreement, whether to pursue a dangerous offender application, whether to charge multiple offences, whether to negotiate a plea, and whether to initiate an appeal [44].

These are only reviewable if there would be an abuse of process, that is, where there had been a flagrant impropriety, improper motives or bad faith, where the decision undermined the integrity of the judicial process, or where it would result in an unfair trial [49]-[51].

Judicial intervention can occur in the absence of abuse of process, where the conduct of a party interferes with the orderly and effective functioning of the court [58], but the conduct of litigants or counsel is to be distinguished from the conduct of litigation [59]. Tactical decisions about how a party will present its case will be deferred to by judges unless the situation is exceptional or trial fairness requires intervention.

Where official guidelines for prosecutors have been issued, although they may not have the force of law, a breach can indicate when the court should give weight to a defendant’s claim that a prosecutorial decision would give rise to an abuse of process [56].

See also: New Zealand Law Commission, Criminal Prosecution (NZLC R66, 2000) at [61]-[66], A v R [2012] EWCA Crim 434 at [83], R v DPP ex parte Kebilene [2000] 2 AC 326 at 371, Likiardopoulos v R [2012] HCA 37 per French CJ at [1]-[5].

A particularly important prosecutorial decision is, especially in cases of high public interest, a decision not to prosecute. Judicial review has a role here, especially where there is no practical means of private prosecution. But again, a plaintiff would have to demonstrate that the prosecutor, in deciding not to prosecute, considered an irrelevant matter, or failed to consider a relevant matter, or was wrong in law, or was plainly wrong. And even if the plaintiff could show that the prosecutor had failed to consider a relevant matter, or had considered an irrelevant matter, or had made an error of law (for example by being wrong about the legal elements of the alleged offence), the plaintiff will further have to satisfy the court that if the error had not been made the prosecutor could have decided to prosecute. Even then, the reviewing court could simply refer the issue back to the prosecutor for reconsideration.

The trial process provides protection against wrong decisions to prosecute, but there is little real and practical protection against decisions not to prosecute.

When the right hand unfairly finds out what the left has been doing

If something can go wrong, it will, and there can't be many criminal defence lawyers who will be surprised that there has been a glitch in relation to compulsory interviews concerning proceeds of crime.

See the discussion of X7 v Australian Crime Commission [2013] HCA 29 here on 27 June 2013, and Lee v New South Wales Crime Commission [2013] HCA 39 here on 10 October 2013.

By oversight, transcripts in relation to which there had been a suppression order were released to the prosecution before a criminal trial in Lee v The Queen [2014] HCA 20 (21 May 2014).

This went to the fairness of the trial, because the prosecutor obtained information about how the defence might be conducted and was put in a position to prepare cross-examination in the event that the defendant gave evidence. This was a forensic advantage to the prosecutor for which there was no legislative authority and which undermined the fundamental premise of a criminal trial, namely that the prosecutor is not entitled to the assistance of the defendant in pursuing a conviction.

There was no occasion here for a policy balancing of interests, such as occurs when evidence is improperly obtained [51]. Here the issue was not admissibility, but abuse of process. There could be no thought of applying the proviso, as it were, and saying that there was no substantial miscarriage of justice, because here the trial had been unfair. This was an example [48] of the kind of "serious breach of the presuppositions of the trial" referred to in Weiss v The Queen [2005] HCA 81 (discussed here on, for example, 25 June 2007). 

A retrial was ordered.

Was the trial unfair? Not in terms of the definition that emerges from case law: a trial where the law is accurately applied to facts determined impartially. The case was not concerned with whether the legal elements of an offence were accurately applied to facts determined without bias or without improper weight being given to particular items of evidence. The issue was not substantive fairness, but procedural fairness.

Procedural unfairness can be thought of as a kind of abuse of process. Here it concerned a breach of a fundamental right. Attention is on what the officials did, not on what the defendant did.

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.

Assessing reasonableness of suspicion

When can a tip-off provide the police with reasonable grounds to suspect that an offence has been committed? 

If the informant is not known to the police, what circumstances can provide sufficient assurance of reliability to establish reasonable grounds for this suspicion?

General rules providing for criteria of reliability may be difficult to apply uniformly in actual cases, and judges may differ in the same case, as is illustrated by the 5-4 split in Navarette v California, USSC No 12-9490, 22April 2014.

Thomas J and Scalia J differed here, the former giving the opinion of the Court and the latter the dissent. The central issue here was the grounds upon which the police stopped a vehicle on a road, which must be borne in mind in jurisdictions where the police can stop without grounds any vehicle for a routine licensing and roadworthiness check.

But more generally, Navarette illustrates how descriptions of requirements for reliability (was the informant an eyewitness, had there been time for fabrication of the report, would a false report carry risks that the informant would be called to account, did the reported facts indicate criminal activity, did subsequent police activity dispel the inference of reasonable suspicion?) can undermine the protection against unreasonable search when the facts are assessed.

Scalia J cogently reasoned that the police activity - following a suspected drunken driver for five minutes without observing anything irregular about the driving - dispelled suspicion. On his evaluation of the evidence there had been time for fabrication - "Plenty of time to dissemble or embellish" - and there was no evidence that the informant knew of any difficulties there may have been in locating her, and there could have been many innocent explanations for the driving behaviour she reported. Further, the driving was observed by the police to have been irreproachable and it gave rise to no suspicion of any criminal activity. A drunk driver cannot (necessarily) decide to drive carefully when he sees that he is under police observation.

The case focuses on the lawfulness of the stopping of the vehicle. A subsequent smelling of marijuana led to search and discovery of 30 pounds of that drug in the vehicle. The case is not concerned with the question of whether the evidence would be admissible if the search had been illegal. Here there was no police misconduct, but on the other hand the police should be deterred from relying on inadequate grounds for a search. Problematically, the distinction between belief and suspicion is difficult to apply in practice, and an erroneous belief that a suspicion is reasonably based can be a slight error compared to the public interest in detecting serious crime. Still, expansion of what is considered to be reasonable grounds for suspicion makes it less necessary to consider the admissibility consequences of police actions in good faith (Illinois v. Rodriguez, 497 U.S. 177 (1990), cited in Findlaw, Annotation 6 - Fourth Amendment, fn 224).

Dangerous indifference

Recklessness as to whether a complainant is consenting to sexual activity is not the same as recklessness as to why the complainant isn't consenting. The latter is not an element of the offence, whereas the former is, for offences defined in statutory provisions the same as or similar to those considered in Gillard v The Queen [2014] HCA 16 (14 May 2014).

Broadly, the legislation defined sexual offences that are committed in the absence of consent, and specified occasions where consent is deemed not to have existed, for example where consent has been caused by abuse by the defendant of authority over the complainant. Knowledge of the complainant's non-consent is sufficient for liability, as is recklessness as to whether the complainant consents.

In this context the High Court held that recklessness means indifference to the complainant's consent (applying Banditt v The Queen [2005] HCA 80). Here, indifference to whether the complainant consented was not to be equated to indifference as to whether an exercise of authority over the complainant may have caused a consent which the statute deemed not to be consent. Of course the existence of such authority could be evidence of the defendant's indifference as to whether the complainant consented, but that would depend on the circumstances.

Here the prosecutor, with the judge's apparent approval, had invited the jury to conclude that the defendant was reckless as to consent because he was reckless as to the cause of any apparent consent. That was incorrect reasoning and a new trial on the relevant counts was ordered.

Indifference here is not simply an emotional attitude. It is a state of mind warranting criminal liability when it causes harm. It is not merely being rash or lacking caution (see my comment on Banditt here on 24 January 2006, referring to Lord Bingham's dictum in R v G). It is a determination to have one's way regardless of the other person's wishes.

Paying for doing harm

For discussion of how to determine the amount of restitution (often in criminal law called reparation) a defendant should pay a victim whose online pornographic images he possessed, see Paroline v United States USSC No 12-8561, 23 April 2014.

The majority held that defendants should only be liable for the consequences of their own conduct, not the conduct of others. Courts must use discretion and sound judgment in fashioning restitution orders.

Roberts CJ, joined by Scalia and Thomas JJ, held that restitution could not be ordered here because the legislated standard for restitution left, in this case, the amount to be determined arbitrarily. Sotomayor J also dissented, holding that the legislation applied the tortious concept of liability of an individual defendant on a jointly and severable basis for the full amount of the victim's loss, and that accordingly an order for the full amount should have been made.

Article by Lord Phillips: Closed Material

As a special favour to yourself – a reward for a virtuous life – read the article by Lord Phillips on the way courts accommodate the need that some evidence be kept secret: Nicholas Phillips, “Closed Material” London Review of Books, Vol 36, No 8, 17 April 2014 (currently available here but don’t rely on this link surviving in perpetuity).

As the editor notes, “Nicholas Phillips retired in 2012 after three years as the first president of the UK Supreme Court. ‘Closed Material’ is a version of last year’s Blackstone Lecture, delivered at Pembroke College, Oxford.”

Many of the cases he mentions have been noted here: Chalal, Secretary of State for the Home Department v AF [2009] UKHL 28, and Secretary of State for the Home Department v MB [2008] 1 AC 440 here on 11 June 2009, AF again briefly here on 12 June 2009; A & Ors v. Secretary of State for the Home Department [2004] UKHL 56 here on 17 December 2004 (a case which Lord Phillips rates “as [the House of Lords’] most impressive decision in my lifetime”) and which moved me to quote, with rather spooky prescience, Montaigne; W (Algeria) & Anor v Secretary of State for the Home Department [2012] UKSC 8, here on 20 March 2012; Al Rawi v The Security Service [2011] UKSC 34, here on 14 July 2011; Roberts v Parole Board [2005] UKHL 45, here on 11 July 2005.

The case law led to the Justice and Security Act 2013 [UK], and Lord Phillips describes its passage through both Houses of Parliament from his perspective, focusing on disputes as to the criteria which should apply to any decision to permit the use of the closed material procedure (see now, ss 6(5) and 8(1)(c); it seems that efforts to impose more restrictive conditions on the use of the closed material procedure were unsuccessful). The enacted requirement is (broadly, and with qualifications) that “it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration” that a closed material application may be made, and an application must be granted if the court “considers that the disclosure of the material would be damaging to the interests of national security”.

Lord Phillips concludes,

“There is a danger that familiarity with the use of such a procedure will sedate those who use it against the abhorrence that the need to resort to such means should provoke. I would have been happier had the bill stated that it could be used only as a last resort.”

Fairness and contempt proceedings

Procedural fairness in contempt proceedings is the topic of general interest in Dhooharika v The Director of Public Prosecutions (Mauritius) [2014] UKPC 11 (16 April 2014). Of subsidiary interest is the analysis of the common law offence of scandalising the court.

The appellant, a newspaper editor, had published comments that were subsequently held by the Supreme Court of Mauritius to have undermined public confidence in the independence of the judiciary and the administration of justice.

This offence of contempt requires that, as an actus reus, the act or writing published must carry a real risk that public confidence in the administration of justice will be undermined, and the mens rea is intentionally, or subjectively recklessly, undermining public confidence in the administration of justice [42], [48] – [49].

As to fairness [50]:

“ ... The Board understands that it may be necessary for the DPP in an appropriate case to take summary action and that a classic form of trial may not always be necessary, but the Board is of the clear view that the alleged contemnor is always entitled to a fair trial and that, depending upon the circumstances, he will almost certainly be entitled to call oral evidence on his behalf, including his own evidence. In the instant case the Board has formed the view that the appellant was, as a matter of practical fact, deprived of his right to give evidence on his own behalf.”

Since the trial was unfair the conviction could not stand [54], but independently of the fairness difficulty, the published comments were not proved to have been made in bad faith [57] (meaning that mens rea was not proved).

The conviction was quashed, but the Judicial Committee observed that the procedure at sentencing had been unfair [60]:

“[The Board] ... would have allowed the appeal against sentence on the simple ground that the appellant should have been afforded an opportunity to make submissions in mitigation before a conclusion as to the correct sentence was reached. The transcript shows that the court proceeded to sentence immediately after delivering its judgment on the merits. There were a number of points which could have been advanced on his behalf in support of the conclusion that a custodial sentence was not necessary. The experience of this case shows that the prosecuting authorities should be careful to remind the trial court of the need to hear and consider submissions that go to possible mitigation of the sentence before sentence is pronounced.”

The Board surveys the history of contempt by scandalising the court [21] – [26], and considers its continuing existence, particularly in Mauritius but also elsewhere in the Commonwealth [29] – [41] (especially at [38] and Annex 1 to the judgment).

And (this is me now, not the UKPC) aspects of the law of contempt remain uncertain. Perhaps because flexibility in procedure may be essential if contempt has to be dealt with urgently, statutory procedures leave some areas untouched. Are there occasions when a charging document should be filed and the usual criminal procedures utilised, even though dealing with the alleged contempt may fall only within the court’s inherent power (see O’Brien v R [2014] UKSC 23 (2 April 2014), noted here on 4 April 2014)? How can a charging document be filed if there is no enactment against which the contempt is alleged? If there is no charging document, how should the court record its orders? If civil procedures are adopted to initiate proceedings, to what extend do they colour subsequent steps?

Some points can be stated with confidence because they have been established by case law. As Finn, Mathias and Mansfield say in Criminal Procedure in New Zealand (Thomson Reuters, Westlaw NZ online) at [1.3.3]:

“Both common law and enacted contempt require the criminal standard of proof [footnote: Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] 1 WLR 2559, [2000] 2 All ER 814  (CA)]  and the alleged contemnor has the rights of a person charged. [footnote: Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [53]–[56] per Blanchard, Wilson and Anderson JJ]  Neither form of contempt carries a right to elect jury trial and all offences of contempt are subject to maximum penalties which are less than the level at which jury trial could be elected. [footnote: Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [60], [62]–[65] and [67] per Blanchard, Wilson and Anderson JJ, decided under the former law which gave the right to elect jury trial whenever (with a few exceptions, such as those which were mentioned in the Summary Offences Act 1981, s 43, with due respect to Tutu v R [2012] NZCA 294 at [19]) the maximum penalty was imprisonment for more than three months. Now all contempts are category 2 offences.]  The judge must identify the act or acts giving rise to the alleged contempt with sufficient particularity to ensure the defendant understands what is alleged, and must give the defendant the opportunity to take legal advice.”

Whether there is still a need for the common law offence of scandalising the court may be debatable, as is illustrated by the points made by Lord Pannick and referred to in Dhooharika at [28].

Our Law Commission is currently reviewing the law of contempt. And there is a particularly interesting paper by Professor ATH Smith, Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper available at Crown Law.

Points to file away ...

To do an act “with” the defendant

Policy was an important consideration in interpreting the phrase “to do an indecent act with or upon” the defendant in s 2(1B) of the Crimes Act 1961 [NZ], where the defendant, an adult, induced young people to masturbate in his presence but without any physical contact or overt participation by him: Y (SC40/2013) v R [2014] NZSC 34 (3 April 2014). The policy point is apparent at [16].

Equally interesting is the submission made for the appellant that the interpretation imposing liability on the defendant would amount to retrospective criminalisation, in view of decisions that appeared to suggest he would not be liable. At [27] the Court noted that the earlier decisions did not deal with situations where young people had performed the indecent acts, so this was not retrospective criminalisation.

Civil but contemptuous

The distinction between civil and criminal contempt of court was the basis for holding that extradition on a criminal matter did not operate to bar proceedings for an earlier civil contempt, in O’Brien v R [2014] UKSC 23 (2 April 2014). The distinction between civil and criminal contempt is mentioned at [37] – [40], [42]. It is the nature of the defendant’s conduct that determines the category of the contempt.

They say we can't, but we say we can! Fairness trumps logic in the Privy Council.

Every judge dislikes constraints on jurisdiction that impede justice. One can be confident about that.

In our legal system – and perhaps in yours too – the greatest jurisdiction is given to the senior trial court, the High Court, while the appeal courts, the Court of Appeal and the Supreme Court, have jurisdiction that is limited by statute.

You might think that it would be sensible to give the final appeal court the greatest jurisdiction. But no, that is not the way that the legislature has decided to distribute jurisdiction. Admittedly, an appeal court should not need original jurisdiction, so that difference is understandable. But once an appeal court has a case before it, it should be able to do anything that another court could lawfully do.

Yesterday the Privy Council riled against a jurisdictional constraint and turned its face, by a majority, against a logically irrefutable limitation on its jurisdiction to order commutation of a death sentence to life imprisonment: Ramdeen v The State (Trinidad and Tobago) [2014] UKPC 7 (27 March 2014).

Justice overrode logic. The appeal was against conviction, and after lengthy delays during the course of judicial process [conviction 29 July 2008, appeals dismissed in T&T 26 February 2010, leave to appeal to the Board granted 18 March 2013, this appeal heard 23 January 2014], it was dismissed by this Board. Should the death sentence stand, notwithstanding that it had not been appealed? The prosecutor indicated no enthusiasm for its imposition.

Lord Toulson, with Lord Kerr [49], [58], [59] and, separately, Lord Neuberger [68], agreeing, held that the Board was seised of the criminal proceedings as a whole once it granted leave to appeal against conviction, and that as it was satisfied that carrying out the sentence would be unlawful in view of the inhumanity caused by the delay, it had the power to order commutation instead of requiring further proceedings to be brought on that issue. Fairness and convenience both pointed to this conclusion [69].

Lord Mance, with whom Lord Sumption agreed, dissented on logical grounds. They had no doubt that the appellant’s ordinary remedies in Trinidad and Tobago would be forthcoming.

Can technology make extradition for trial unnecessary?

If you need clarification of disclosure obligations in the context of extradition proceedings involving the “record of case” procedure, Dotcom v United States of America [2014] NZSC 24 (21 March 2014) should be of assistance.

The decision of the Court is in the joint judgment of McGrath and Blanchard JJ (delivered by McGrath J), the concurring judgment of William Young J, and the partially concurring judgment of Glazebrook J. See [153], [172], [177], [191], [194]; [213] – [217], [221] – [223], [228].

Where legislation permits a slightly more relaxed approach to treaty obligations, so that there is more room for fairness, the dissent of Elias CJ, and the partial dissent of Glazebrook J deserve consideration.

The central concept is the “duty of candour”, pursuant to which a requesting state must disclose to the defendant any information that [152] “destroys or very seriously undermines the evidence” on which the requesting state relies (adopting Lord Bingham in Knowles v Government of the United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35]).

Enforcing this duty of candour, in the absence of judicial powers to make orders, requires the court to rely on the candour of a party that may well not want to be candid. Of course the judges didn’t put it like that [177]:

“We accept that there will be exceptional cases where an extradition judge might want further information to be sought from the requesting state. Such concerns will usually be resolved through dialogue between the Court and counsel. In cases where that does not meet the perceived need, we also accept the view expressed in [Norris v Government of the United States [2008] UKHL 16, [2008] AC 920 at [107]] by Lord Bingham that where the relevant extradition treaty provides for government-to-government requests to be made for additional information or evidence, as art 12 of the Treaty does, that formal procedure may be availed of. The Court should inform counsel for the requesting party that the Court wishes to receive further information from the requesting state. Counsel must then bring the matter to the attention of the appropriate New Zealand Ministers so that a decision on whether to request the further information through diplomatic channels is made and given due effect.”

The weakness in this legislated scheme is obvious. The “state” seeking extradition is really a group of people whose jobs are to be prosecutors. They have allegiance to their country. They believe they have right on their side. So-called “states” do not treat each other with candour: if they did there would be a lot of unemployed spies.

Is the meaning of a “fair” extradition hearing different from the meaning of a “fair” trial? Fairness in extradition hearings requires impartial determination of the facts – in the sense of giving the evidence appropriate weight and determining issues without bias – in deciding whether a prima facie case has been established by the requesting state. There must be evidence, summarised in the record of case (where that procedure applies), on every element that the prosecutor would have to prove at trial. None of that evidence can be so unreliable that no fact-finder would accept it. The defendant must be able to challenge the reliability of the evidence, and that may require access to information that only the prosecutor may have. The prosecutor may be unaware of weaknesses in the case for extradition, or may not appreciate the magnitude of a possible weakness.

There is a point on which one might have reservations about the reasoning at [161] of the joint judgment (and concurred by William Young J at [228]). Disclosure, the judges seem to be saying, is not required when the defendant has independent knowledge of the facts. But the difficulty with this is that disclosure enables the defendant to know how the prosecutor intends to prove the facts needed to establish a prima facie case. It doesn't matter what the defendant knows, it's what the prosecutor knows, and how that knowledge was obtained, and whether it is admissible as evidence, that the defendant needs disclosure of, to challenge the assertion that there is a prima facie case.

It seems obvious that the statutory scheme for extradition where the record of case procedure is used does not meet the requirements of a fair hearing, because of constraints on disclosure of the prosecutor's case and the requirement that courts accept - although on a supposedly "rebuttable" basis - the candour of the prosecutor. You could hardly get a clearer example of the legislature requiring the court to take a biased stance. Yet the majority judges don't accept this. In considering whether the scheme complies with the requirements of natural justice [193], [229], [239] they - in effect - explain why it doesn't then they say that it does.

If there are questions about the power of the legislature to require courts of justice to act unjustly, resort will be had to the inherent powers of the court to act in the interests of justice. Elias CJ and Glazebrook J seek to advance this principle. The majority refer [181] to the court's ability to refuse extradition after a "meaningful judicial assessment of whether the evidence is sufficient to meet the threshold of a prima facie case", and the word "meaningful" may, one may speculate, encompass cases where there is a judicial sense that unacceptable unfairness has occurred.

Lord Devlin said something sensible in Connelly v DPP [1964] AC 1254, 1354, which I quoted in an article that, for reasons that now nearly escape me, I called "Criminal Equity" [2000] New Zealand Law Journal 427, a copy of which is available here.

In these times of technological sophistication, when trials do not really require the presence of defendants, or often even of witnesses, because they can participate remotely by audio visual links, extradition may only be necessary when a person is required to be present in court for sentencing.

Have you tried marine biology?

I’m told that there are some people who need to use little untruths to advance their chance of romantic success.

The most famous example I can think of is George Kostanza in Seinfeld, 5^th season, episode 14: “The Marine Biologist”. Being thought of as a marine biologist did indeed enhance George’s prospects, but it also led to a call to action of another sort.

In R v Hutchinson, 2014 SCC 19 (7 March 2014) Mr Hutchinson’s untruth was of a more mundane kind: it came down to saying, “This is a really good condom.”

In fact he had put pin pricks in it, hoping to make his partner pregnant but knowing she did not want that. The result was she did become pregnant.

Had the complainant consented to the sexual activity?

The Court was unanimous in dismissing the appeal, but for differing reasons. The majority said yes, she had consented but her consent was vitiated by the dishonesty. Consent had been given to the sexual activity in question, and consent does not have to extend to the conditions or qualities of the act, such as birth control measures. However there was dishonesty which resulted in serious bodily harm [67] – [70], and this constituted the fraud that vitiated consent.

The minority said no, there was no consent ab initio, because use of the condom was part of the sexual activity and the complainant had the right to determine how she was touched, how the sexual activity she engaged in was carried out. It was not necessary to look for a vitiating factor such as fraud, as there was no consent from the beginning.

The majority found some difficulties with the minority reasoning [45] – [53]. How are the boundaries of the sexual activity, the nature and quality of the act, defined?

If a complainant had thought she was being propositioned by a marine biologist (this is my example, not the Court’s), and if she wouldn’t have had sex with the real George, would she be consenting to the ensuing sexual activity? If so, would her consent be vitiated by fraud?

My goodness! Is that a gun?

For what would be accepted in the common law world as a conventional analysis of secondary liability insofar as it applied to the facts of Rosemond v United States, USSC No 12-895, 5 March 2014, see the judgment of the Court delivered by Kagan J (with significant agreement by Alito J, joined by Thomas J, in dissent).

It is the point over which the dissent occurred that is of interest to you and me.

The relevant offence was double-barrelled: committing a drug dealing offence, while in possession of a firearm. Does the secondary party, who assists or encourages the offence, have to help with both the dealing and the firearm possession? No disagreement here: it is only necessary that the defendant provides assistance or encouragement with some part of the offence. Does the secondary party have to know of all the circumstances – both the dealing and the firearm? Again, no disagreement: the defendant must know of all the circumstances of the offending.

But what if the defendant, present during the commission of the drug dealing, only becomes aware of the firearm after it is too late to withdraw from participation? The defendant may not be able realistically to say, “Everyone stop! No guns!” because that might risk the safety of other people or even of the defendant himself.

Here the dissenters say this is like the affirmative defences of duress or necessity: the defendant is saying he can’t withdraw because of forces beyond his control. He should, according to the relevant law (not universally applicable), have to prove those defences. They do not negate an element of the offence.

The majority disagreed with that (slip op, p 10 footnote 10). The question is one of fact: what did the defendant intend to assist or encourage? Evidence that he only learn’t of the firearm after the drug deal had commenced would be relevant to whether he intended to assist or encourage the firearm possession. His continuation with his participation could be consistent with him encouraging the gun element, or not: that is a matter the fact-finder would have to determine (see slip op, p 13, footnote 9). The prosecutor must, when such issues are raised, prove the necessary intent without a burden of proof passing to the defendant.

Defences like duress or necessity could, on relevant facts and subject to local law, be available, and again, subject to local law, may only require the defendant to raise them as live issues by pointing to some supporting evidence.

Normally, aside from in offences that include a proscribed purpose, the law does not concern itself with the motive behind an intention; Robin Hood was a thief. Where an intention existed because the defendant faced circumstances that it would be beyond normal human fortitude to endure, a defence of necessity might be available. But not necessarily. This is where policy limits on justifications and excuses operate. In Rosemond the Supreme Court majority lowered the moral hurdle for defendants by allowing a motive for an intention to limit responsibility even though the stricter requirements of an affirmative defence would not be satisfied.

I doubt that this would be a universally acceptable recognition of human frailty.