Must you? The statutory defence of compulsion.

The defence of compulsion may be thought of as a subset of the defence of necessity. The former is, in New Zealand, a statutory, and the latter a common law, defence. The former is an exclusive codification of the circumstances in which compulsion by threats of harm from another person provides a defence: Akulue v R [2013] NZSC 88 (19 September 2013) at [29].

The Supreme Court distinguished R v Ruzic 2001 SCC 24, in which the facts were similar to those contended for in Akulue, mainly by holding that moral involuntariness is not a principle of fundamental justice engaging the Bill of Rights [20]. Instead, moral involuntariness was properly taken into account in the statutory rules relating to coercion.

Mention was made [14] of R v Hasan [2005] UKHL 22, noted here on 18 March 2005. Lord Bingham's identification of policy reasons for tightening, rather than relaxing, the conditions to be met before common law duress could be relied on were noted [15].

The legislative purpose behind the statutory defence is that if there is sufficient time to seek assistance from the authorities, a defence of compulsion is not available, and a belief, whether reasonable or not, that no assistance would be forthcoming is not within the scope of the defence [23]. It was not for the court to extend the bounds of the statutory defence [26].

Now we are nine

 If you are wondering (and I know you aren't) how to observe this, the beginning of the tenth year of this site, you could:

Study the procedure that was used for the election of the doge of Venice, and ask whether the number of steps could be reduced while retaining the same level of protection against corruption. Is the answer this complex?

Read this article about Mr Obama's suggestion that a year be deducted from the law degree, and ask questions like: What is the purpose of law school? What is the purpose of university? What is education? What is the best way to work? When is the best time to gain financial independence? What is the best way to spend youth? What is leisure for? And add as many questions of that sort as you are afraid to answer.

Eyewitness identification warnings

Getting judges to obey the law on eyewitness identification

A rigorous application of statutory requirements for identification warnings is required in Fukofuka v R [2013] NZSC 77 (16 August 2013). The Court requires greater vigilance to prevent erroneous convictions that was apparent in some Court of Appeal decisions [28, footnotes 21-23], [39].

The governing statutory provision is s 126 of the Evidence Act 2006 (quoted at [13]). It replaces s 344D of the Crimes Act 1961 (quoted at [28]), and it expands the original requirement of a judicial warning that it should "include the reason for the warning" by requiring the judge to warn the jury "that a mistaken identification can result in a serious miscarriage of justice".

This, however, requires more than just a recitation of those statutory words. The legislation carries a "statutorily required level of scepticism as to identification evidence" [38]. So,

"[28] ... trial judges should ... explain that the reason for the warning was that miscarriages of justice resulting from mistaken identifications had been known to occur."

This reflects the observations in R v Turnbull [1977] QB 244 (CA) at 228, referred to in Fukofuka at [25]-[26].

Where a warning under s 126 is required, it "must" be given, and failure to comply will have adverse consequences [32].

A digression by me: criteria for determining appeals against conviction

At the time relevant to this appeal the criteria for determining appeals against conviction were set out in s 385(1) of the Crimes Act 1961, which was a traditional formulation of what one might call the proviso approach: if the appellate court found there had been a miscarriage of justice the appeal had to be allowed, provided that the appeal could be dismissed if the appellate court was satisfied that no substantial miscarriage of justice had actually occurred.

In Fukofuka the Court of Appeal had applied this incorrectly [23]-[24]. The correct method was to firstly ask whether the error could have affected the result of the trial. If it could have, it was a miscarriage of justice. Then, if it was, the second question arose: was the appellate court independently satisfied of the appellant's guilt? Only if it was, could the appeal against conviction be dismissed. This reasoning was required by R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 (discussed here on 9 July 2009, and again here on 20 July 2009).

The separation of these questions means that under s 385 there could have been a miscarriage of justice even if the appellant was obviously guilty. You do not answer the first question by going directly to the second.

From 1 July 2013 we have had new criteria for determining appeals against conviction: s 232 of the Criminal Procedure Act 2011. This is not structured with a proviso, and, among other grounds, the existence of a miscarriage of justice (as defined in subsection (4)) of itself requires an appeal to be allowed. Included in the definition of miscarriage of justice is any error in the trial that has created a real risk that the outcome of the trial was affected. (As to what real risk means, see Sarrazin, discussed here on 22 November 2011).

The question therefore arises, how does the court assess this "real risk"? Can it go straight to ask itself whether it is independently satisfied of the appellant's guilt, and if it is, conclude that the error at trial did not give rise to a real risk that the outcome was affected? Or must it treat the analysis as requiring two steps: first, ask whether the error might have created a real risk that the outcome of the trial was affected, and, if it might have, second, ask whether the court is independently satisfied of the appellant's guilt, and conclude that if it is, then the error could not have affected the result of the trial?

The latter suggestion requires an unwarranted reading-in to the legislation of "might have", whereas s 232(4)(a) goes straight to whether the error "has" created the real risk. So the question becomes whether the appellate court can assess the existence of a "real risk" by independently (that is, aside from the error) asking whether it is satisfied of the appellant's guilt.

That is certainly a possible interpretation of subsection (4)(a). It is consistent with convictions being quashed where appellants might reasonably possibly be innocent, or where, whether guilty or not, they had trials that were unfair or were nullities. But one should remember (1) why the proviso was abolished, (2) how difficult it can be for appellate courts to assess the strength of evidence (see also my discussion here on 16 November 2012), (3) the traditional practice of recognising risk of effect on result without the appellate court itself attempting to reach a verdict, and (4) the requirement of the rule of law that trials must be conducted according to law and not be dictated by what are thought to be facts. Those considerations support appellate courts refraining from determining guilt. Even so, it must be recognised that immaterial errors do not matter, and that is why the legislation requires there to be a real risk that the error affected the outcome of the trial.

But back to identification warnings: some issues

There is a possibility that not all defendants will be adequately funded at trial (shush ma sarcasm). Not all will be able to call expert evidence on the risks that can accompany eyewitness identification. Jurors are not allowed to research that for themselves. Should judges have a responsibility to keep up with research on the accuracy of eyewitness identification, and to pass information about that to juries? Or should they repeat expert evidence that may be on the record of trials in other cases? It is all very well to require judges to tell juries that there have been occasions when innocent people have been convicted because eyewitness identification was accepted when it shouldn't have been, but most people would know that. Should the Law Commission, which has looked into (in 1999, and as background to what is now s 126) the reliability of eyewitness identification, be asked to offer a standard direction that could helpfully elaborate s 126? The Commission had said in that background material (at [194]):

"Credible identification evidence is of particular importance to the criminal justice system. Research indicates that incorrect identifications are a major factor in miscarriages of justice. In its draft Evidence Code, the Law Commission has drawn upon the research discussed in this paper to develop a regime that will help to exclude unreliable identification evidence. In proceedings where the case against the defendant depends wholly or substantially on identification evidence, the judge will continue to warn the jury of the special need for caution before convicting on the basis of such evidence. Such procedural safeguards, and the use of expert witnesses where their evidence can provide substantial help to the jury, should help to ensure that identification evidence is both reliable and properly evaluated."

 

The Supreme Court has bolstered the Law Commission's – what some sarcastic people may say is a - rather limp reading of Turnbull, by strengthening s 126(2)(a).

Statutory interpretation, causation and responsibility for accidental death

Causation is the critical consideration in Hughes v R [2013] UKSC 56 (31 July 2013). The offences under analysis, punishable by imprisonment for up to two years, are causing death while driving without a licence, and without insurance, contrary to s 3ZB of the Road Traffic Act 1988:

"A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under-

1. Section 87(1) of this Act (driving otherwise than in accordance with a licence); ...
   
2. Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks)."
   

The agreed facts were that all fault lay with the victim, and there was nothing objectionable about the appellant's driving other than his lack of an appropriate licence and his lack of insurance. A collision occurred when the victim's car crossed the centre line on a bend and struck the appellant's vehicle, and the victim subsequently died from injuries sustained in this accident. The victim had been driving erratically for some time before the accident, had been using heroin, and was overtired. The appellant could not have avoided the collision, but he was charged with the two offences created by these paragraphs of this section.

At first instance the Recorder ruled that causation had to be proved, and the Crown successfully appealed that ruling. The Court of Appeal followed its decision, delivered after the Recorder's ruling, in R v Williams [2010] EWCA Crim 2552; [2011] 1 WLR 588 in which it had held that the offences required simply that the defendant had no licence or insurance, that he was driving and had been involved in a fatal crash; there was no requirement of proof that the defendant had exhibited any fault contributing to the accident. The Supreme Court overturned this, holding:

"[36] ... it must follow from the use of the expression "causes…death…by driving" that section 3ZB requires at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death. It is not necessary that such act or omission be the principal cause of the death. In which circumstances the offence under section 3ZB will then add to the other offences of causing death by driving must remain to be worked out as factual scenarios are presented to the courts. In the present case the agreed facts are that there was nothing which Mr Hughes did in the manner of his driving which contributed in any way to the death. It follows that the Recorder of Newcastle was correct to rule that he had not in law caused the death by his driving. The appeal should be allowed and that ruling restored."

In Williams the Court of Appeal had reasoned that when s 3ZB was created, so too was s 2B, which is an offence of causing death by careless driving, so the offences against s 3ZB must involve less than carelessness, and indeed as a matter of statutory construction they did not require an element of fault. An analogy was drawn with R v Marsh [1997] 1 Cr.App.R. 67, in which it was sufficient that the defendant's driving was a cause of the accident which was an element of the offence of aggravated vehicle taking, created by 12(A)(1) of the Theft Act 1968. The focus in Williams was therefore on whether the defendant's driving had been a cause of the accident.

But in Hughes the Supreme Court reasoned that although the appellant's driving could be seen as a "but for" cause of the victim's death, in the sense that it set the scene for the accident, that did not resolve the question whether the appellant's driving was a legally effective cause of the death [24]-[25].

If Parliament had wanted to impose liability without causation, it could have done so by unambiguous language, however [26]:

"...A penal statute falls to be construed with a degree of strictness in favour of the accused. It is undoubtedly open to Parliament to legislate to create a harsh offence or penalty, just as it is open to it to take away fundamental rights, but it is not to be assumed to have done so unless that interpretation of its statute is compelled, and compelled by the language of the statute itself. The rule of construction which applies to penal legislation, and a fortiori to legislation which carries the penalty of imprisonment, is not identical to, but is somewhat analogous to, the principle of statutory interpretation known as the principle of legality."

The Court referred [27] to Lord Hoffmann's remarks on legality in R v Secretary of State for the Home Department Ex p Simms and O'Brien [2000] 2 AC 115, 131E, to the effect that in the absence of clear and unambiguous language there was too great a risk that Parliament may have not appreciated the implications of what it was legislating.

Therefore [28]:

"It follows that in order to give effect to the expression "causes…death…by driving" a defendant charged with the offence under section 3ZB must be shown to have done something other than simply putting his vehicle on the road so that it is there to be struck. It must be proved that there was something which he did or omitted to do by way of driving it which contributed in a more than minimal way to the death. The question therefore remains what can or cannot amount to such act or omission in the manner of driving."

Then, turning to what sort of driving might be sufficient to establish this causal connection, the Court at [29]-[31] declined to accept a suggestion, by Professors Sullivan and Simester in [2012] Criminal Law Review 754, that responsibility may attach without culpability, as for example where the defendant in the agony of the moment swerved the wrong way, or where he encountered an unexpected natural hazard such as ice. The difficulties with those suggestions became clear if one asked why a driver should be responsible for the death of a person who caused him to swerve but not for the death of some third and in other respects uninvolved person, or why a natural hazard should have different consequences from a manmade hazard.

No indeed [32], to avoid confusion and incoherence in the law, the Court held that under this section a defendant

" ... is guilty of causing death only when there is some additional feature of his driving which is causative on a common sense view and the latter entails there being something in the manner of his driving which is open to proper criticism. To give effect to the words "causes…death…by driving" there must be something more than "but for" causation. ... The statutory expression cannot, we conclude, be given effect unless there is something properly to be criticised in the driving of the defendant, which contributed in some more than minimal way to the death."

This still does not require negligence, and as an example of something less than negligence but sufficient to establish the causal link required by s 3ZB, the Court suggested [32] a driver who slightly exceeded the speed limit and as a result could not avoid the accident, or a driver who failed to discover a fault in his vehicle that would have been readily apparent such as an underinflated tyre or a tyre with insufficient tread. However the Court stressed that it was unwise to attempt to foresee every possible scenario, and that it remained to be seen whether the offences against s 3ZB (including a third offence, provided for by paragraph (b), involving driving whilst disqualified [18]) added much to the offence of causing death by careless driving.

The statutory language in Marsh, above, was different but there was still an open question about causation in that context that was not necessary to decide in this appeal [34].

I have previously discussed responsibility in the context of dangerous driving: R v Roy, 2012 SCC 26, on 15 June 2012, where actus reus and mens rea were the analytical tools used for determining dangerousness. That focus is different from the issue in Hughes, which is the causal element of responsibility.

Common law contempt by disobedience of an order for temporary suppression of a judgment

A non-publication order was issued by the High Court in respect of a pre-trial judgment on evidential issues. The order was made to protect the fairness of the forthcoming trial(s). A person, not involved in the proceedings but knowing of the order, published the judgment.

The person became an enthusiastic litigant, and it must be recognised that a result of this enthusiasm has been extensive judicial examination of the law of contempt.

I have mentioned here on 11 May 2012 the Court of Appeal decision in this litigation. But the Supreme Court had also looked at this litigant's efforts before, as I discussed here on 20 May 2010. So the finale last week from the Supreme Court is a monument to doggedness: Siemer v Solicitor-General [2013] NZSC 68.

At first glance you could hardly get a more obvious example of contempt of court. But the main issue was whether the court had an inherent power to suppress publication of a judgment. Another issue was who has standing at common law to apply for variation or rescission of a suppression order?

I only give a broad indication of what was decided here, in the interests of brevity. As always, the law is in the case, not in what I say.

Fair trial rights were held to dominate freedom of expression, so that if publication would compromise a fair trial, publication would have to yield [158] per McGrath, William Young and Glazebrook JJ, with Elias CJ concurring on this point at [19]. So yes, there is a common law power to suppress a judgment temporarily to protect fair trial rights [168]-[175]. Elias CJ dissented, holding that this power had been removed by statute [38]-[46], [86].

But at the post-publication stage it is too late for an alleged contemnor to protest that the court should not have made the order, except in limited circumstances. It is possible that an alleged contemnor may challenge, in the contempt proceedings, the court's jurisdiction to make the order [222], although whether it is a defence to an allegation of contempt that the court had no jurisdiction to make the order has been left undecided [footnote 283]. The majority recognised that there might be some exceptions in relation to third parties who have not had an opportunity to challenge an order or its terms, or who have taken available steps but not been heard, if obedience to the order would result in "irretrievable loss" of an important right [224]-[226].

The steps that are available to a third party who might wish to challenge a suppression order or its terms were specified and areas of uncertainty discussed at [181]-[187]. The majority noted that the effect on the common law of the position of the media under the Criminal Procedure Act 2011, ss 198, 200, 283 remains to be worked out in future cases [187].

Elias CJ would have allowed a third party to challenge the legality of an order in proceedings to commit him for contempt for disobeying it, unless such a challenge would be an abuse of process [8]-[9], [56], [61]-[85]. She would have allowed the appeal.

So, by a majority the appeal was dismissed and the appellant was ordered to report and commence serving his sentence of six weeks' imprisonment.

This is one of those cases where the law was (if the lack of unanimity in the Supreme Court is any indication) unclear at the time the alleged contempt was committed, and retrospective clarification is for the benefit of everyone except this appellant. However the Court can't just say, "Well fair enough Mr Siemer, you had a good crack at it and your case helped us clarify the law a wee bit, so don't bother with the imprisonment." As the majority said at [191]:

"Provided the court had power to make an order of its kind, a court order is binding and conclusive unless and until it is set aside on appeal or for other reason lawfully quashed. Collateral attacks on such orders are not permitted. Neither the parties, nor other persons subject to an order, are permitted to arrange their affairs in accordance with their perceptions of its flaws, including any individual views they may have concerning the validity of the order. The position is the same whether the order has been made in the High Court or in the District Court.[Footnote: 'Slater v R [2011] NZCA 568 at [17]. Mr Slater was not a party to the proceedings in which the order he breached was made.']"

And added [208]:

" ... The constitutional position with court orders is different from that of a collateral challenge to an executive or administrative action, and a different approach is required. The common law rule against collateral challenge to court orders is itself premised on the centrality of the rule of law. ... The special need in our society for compliance with judicial orders is the constitutional reason for treating disobedience of court orders differently from conduct in breach of subordinate legislation or administrative directive. No such rule of law concerns are raised when a defendant, charged in a criminal court with breach of the directions of an executive government agency, raises their unlawfulness, and resulting invalidity, as a defence. The defendant, of course, in such a case takes the risk of incurring a criminal conviction and punishment if his or her expectation of illegality proves to be wrong. Disobeying the government's administrative directions in this way does not impede the exercise of its functions. But if disobedience of court orders in that way were to be tolerated, the Court's authority and ability to discharge its functions would become seriously impaired. For that reason, the common law of contempt by disobedience of a court order rests on the existence of an order that was made with legal authority, and was thus lawful, as we have held in the present case. It does not matter whether or not the order should have been made at all or made in those terms... .]" [footnotes omitted]

A murky corner of the criminal law: punishment and dignity

Some annoyance has been expressed in the United Kingdom over the Strasbourg court's Grand Chamber decision in Vinter v United Kingdom [2013] ECtHR 645 (9 July 2013). The Court held that procedures in England and Wales for the release of prisoners serving life sentences imposed without right to apply for parole were so unclear as to leave such inmates without hope. This was a breach of Article 3 of the European Convention on Human Rights, which states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The essence of the decision was expressed by Judge Power-Forde in his concurring opinion:

"...Article 3 encompasses what might be described as "the right to hope". ... [H]ope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading."

Article 3 has a corresponding provision in the ICCPR, Article 7, which has been ratified by many countries, as can be seen from this Wikipedia entry.

Nevertheless, imprisonment for life without the right to apply for release on parole is something that many people find acceptable for the worst offenders. For example, in New Zealand s 103(2A) of the Sentencing Act 2002, and s 20(5) of the Parole Act 2002, both introduced on 1 June 2010, reflect the legislature's acceptance of this form of life sentence. The compassionate release provision in s 41 of the Parole Act 2002 appears to apply to these prisoners, but they have to be "seriously ill and unlikely to recover".

The Vinter controversy raises numerous elementary questions. If a law is enacted by a democracy, can it be called immoral? [Yes.] Who, outside the democracy, can call this law immoral? [Anyone.] When, if ever, should the democracy pay attention to an outsider's opinion about the morality of its law? [Big question. Subjectively: only if the democracy has decided to pay attention. Objectively and pragmatically: if it would be wise for the democracy to pay attention. Objectively and morally: if it would be right for the democracy to pay attention.] Can the democracy change its mind about paying attention to an outsider's opinion about the morality of its law? [As a practical matter, yes, if it insists that it has sovereignty in this respect.] Can the democracy simply ignore the outsider's opinion? [Yes, although it might be more comfortable doing so if there was clear democratic support for ignoring the opinion.] If ignoring the outsider's opinion amounts to breach of international treaty obligations, will there be consequences? [Probably "only" political ones in the form of criticism and perhaps loss of esteem (moral regard) in the context under discussion here.]

The same questions arise if the law was enacted not by a democracy but by a dictatorship, and if the "outsider" is more accurately seen as part of the legal system (a sort of sharer of sovereignty). In all cases the difference over what is moral is settled, as far as the legal system is concerned, by legislation.

A person whose Convention (or Covenant) rights have been breached may find it hard to get a remedy. The ECtHR often declares a breach and then says that the declaration is itself sufficient satisfaction. But as Judge Ziemele said in a concurring opinion in Vinter:

"...where a human rights court, in a dispute between a State and an individual, establishes a violation and where the individual concerned, an injured party, has claimed damages, the declaration that a finding of a violation is sufficient satisfaction does not answer that claim."

The tendency to say that a declaration of a breach is itself sufficient satisfaction reflects the political nature of international relations: there are occasions when what is said is all that can be done. But Judge Ziemele's point was that the court should address damages and if it thinks there should be no damages it should say so, otherwise it should say what is to be paid.

So, the United Kingdom is entitled to have whatever laws it wishes, although getting them may require some adjustment of current international law arrangements. If it wants laws that are internationally regarded as immoral, so be it.

Controversial use of the presumption of innocence

The extended meaning given by the European Court of Human Rights to the presumption of innocence (Art 6 § 2 of the Convention) requires a court, in declining to interfere with a refusal to award compensation to a defendant whose conviction was quashed on appeal and for whom no retrial was ordered, to avoid language that suggests the defendant was guilty: Allen v United Kingdom [2013] ECtHR 678 (12 July 2013).

New expert evidence cast doubt on the strength of the evidence that had been given against the defendant at the trial, although on the appeal against conviction the Court of Appeal (Criminal Division) observed (as recorded in [20] of the Grand Chamber's judgment in Allen):

"[153] ... We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount of force necessary to cause the triad, might reasonably have affected the jury's decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed."

This is quite different from concluding that no reasonable jury could have convicted the defendant. Compensation might be awarded to a defendant who, on the basis of new evidence, is shown to have been actually innocent of the crime for which a term of imprisonment has been partly or wholly served, or to a defendant in respect of whom, in the light of new evidence, no reasonable jury could properly have convicted: Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 (11 May 2011), noted here on 15 May 2011).

An inroad on this was sought to be made in Allen by resort to the extended (or what the Grand Chamber called the "second aspect" of the) presumption of innocence. This is [94]:

"... in keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the person's reputation and the way in which that person is perceived by the public. To a certain extent, the protection afforded under Article 6 § 2 in this respect may overlap with the protection afforded by Article 8 (see, for example, Zollman v. The United Kingdom (dec.), no. 62902/00, ECHR 2003-XII; and Taliadorou and Stylianou v. Cyprus, nos. 39627/05 and 39631/05, §§ 27 and 56-59, 16 October 2008)."

The Grand Chamber held that this aspect of the presumption of innocence did indeed apply to this claim for compensation because there was a sufficient link between the quashing of the conviction without order for retrial and the claim for compensation [104], [107]-[108].

It was therefore necessary to look at the language used by the Court of Appeal in the civil proceedings when it dismissed the defendant's appeal against refusal of compensation [129]. The Grand Chamber concluded [134] that the language used by the domestic courts emphasised that it would have been for a jury to assess the new evidence, had a retrial been ordered, and did not undermine Ms Allen's acquittal.

The Grand Chamber was unanimous, but Judge De Gaetano delivered a short separate opinion, saying that the relevance of the presumption of innocence in such cases should be reassessed. He believes that the presumption has no place in civil compensation proceedings.

The case is interesting for its illustration of the use of the presumption of innocence. In a narrow and largely uncontroversial sense the presumption of innocence is a procedural guarantee in the context of a criminal trial, imposing requirements in respect of the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre-trial publicity (with reservations noted below), and premature expressions by a trial court or by other public officials, of a defendant's guilt [93].

The presumption of innocence may have a role in pre-trial procedures, such as bail applications, although this will usually be modified by statute allowing consideration of the strength of the prosecution evidence and, for some defendants, placing on the applicant the burden of persuading the court that bail should be granted. The relevance of the presumption to name suppression decisions may be doubted (see, for example, Suppressing Names and Evidence (NZLC IP13 2008) at 3.56-3.57, and in its final report the Law Commission did not mention the presumption of innocence, only the presumption of openness: NZLC R109 2009).

Book review: “Law as a Leap of Faith” by John Gardner

A hankering for some difficult reading led me to click on "buy now" for the hard cover edition of "Law as a Leap of Faith" by John Gardner. He is Professor of Jurisprudence at Oxford.

I haven't had much of a look at jurisprudence since I was a law student. I had found HLA Hart's celebrated "The Concept of Law" and "Punishment and Responsibility" among the most awfully written, tedious and incomprehensible books I had ever been told I should read. My still largely-unread copies, on my shelves as I write, were lent to me all those decades ago, and the lender hasn't asked for them back.

I wanted the hard copy of Gardner's book because I knew I would be scrawling all over it as I struggled to grasp its meaning. I call him "Gardner" in imitation of the academics' habit of referring to each other by surname only, as if they were schoolboys or Great People like Socrates or Beethoven. I would rather call him John, as he seems a pleasant sort of chap, if his lecture in Auckland on reasonableness, which can be heard here, is any indication. But then people would wonder why I didn't call Hart "Herbie", and Dworkin "Ronnie" (which is what Gardner has called him: p 274, n7).

As a practising lawyer I have been content with what Gardner says (p 273) most lawyers like: the Austinian view of laws as commands; that is the nature of laws and that is all we need to know about that. I say "laws" because lawyers are concerned with "the" law, whereas legal philosophers tend to be concerned with "law" as a genre (p 184).

So, what does Gardner say about his approach as a legal philosopher? In his Preface he describes it in this way:

"Philosophy is not the art of compiling as many little thoughts as possible into as few big thoughts as possible, but the art of wearing every thought down to its rightful little size and then keeping it in its rightful little place. So the main mission of this book, as I see it, is unbundling: separating out disparate thoughts that have often been regarded, mistakenly, as part of some package deal."

There are 11 chapters, mostly based on previously published work or lectures. The first few chapters are, I thought, quite hard going, and it is eventually comforting to have Gardner admit in Chapter 9 that he finds some of the writing by his fellow philosophers difficult to follow (eg p 236: "Hart's treatment of morality ... is a mess") or simply wrong (eg pp 184-185 referring to Dworkin's critique of Hart's criteria for a legal system). Indeed in this book nearly all of the references to Dworkin are to what Gardner considers to be his errors.

Some initial difficulties arise from the technical terminology, which is not explained in a glossary. You need to quickly get used to thinking about "norms". Norms are, so it seems to me now, standards or rules of behaviour. Not an enormous insight, I admit, as this is pretty much the dictionary definition. They are not necessarily legal in nature, and there are lots of other sorts of norms: moral norms (and there is a process whereby these can become legal norms too), etiquette, rules of sports, rules of associations, etc (see p 296). Another important term is "legality". Although he seems to equate this with the rule of law at p viii of the Preface, Gardner uses legality more widely to refer to the quality a norm has when it is a legal norm. So Chapter 7, "The Legality of Law" is an inquiry into what is needed for a norm to be a legal norm.

I thought on first reading that there was a dreadful logical mistake on p 140, but, thank goodness, a hundred pages later it became clear that this was not so, thanks to Gardner's style becoming more reader-friendly (which is odd because the passage on p 140 was written in 2012, and that on p 240 in 1999: is he getting less clear as he grows up?) Could be me getting more used to the material as I read through from beginning to end. The chapters can be read in various orders, and the Preface helpfully provides what amounts to a roadmap for the book.

Following Hart (and Gardner tends to follow and improve upon Hart), an inquiry into the nature of law begins, not by analysing laws, but by considering what is required for a system of norms to be a legal system (p 179). I won't spoil your fun by telling you all of them, but very important is the requirement that the actions of the norm-applying officials can sometimes result in the making of more legal norms (p 180). Important too, and not noticed by Hart, is the legal system's claim to be supreme among the institutionalised normative systems (p 278). Legal norms are products of their legal system and encompass laws and rulings; the laws are of general application and the rulings apply to the parties in a case. Consideration of a ruling or a line of rulings in later cases may eventually result in development of a new law (eg p 185, 186-188).

Most laws are consistent with moral norms, so it is usually morally right for judges to apply legal norms. But there can be immoral laws, and this raises the question ("puzzle" p 189) of how officials become morally required to apply legal norms. Gardner calls this the main puzzle about law, and he says Hart was mistaken in saying that there is a generalised moral value in following laws (p 189). No, but officials are required to follow laws because a characteristic of legality is the binding power of the oaths taken by the officials, their contractual obligations, and the semi-voluntary obligations of their professions. Thus a judge must, in arriving at a determination, put justice above other moral imperatives such as kindness and prudence (191-192).

Laws have an inner morality, in a sense that reflects the quality of the means by which they serve their ends; it is preferable to describe laws as modal (concerned with means) rather than as procedural or substantive (pp 202, 206-207). Variations in the inner morality of different laws mean that not all laws live up to the ideals of legality. Hart thought there are two concepts of law, the wider positive law (law that is law because it satisfies the formal means by which it was made, so is correctly posited) and the narrower genre of law that lives up to an appropriate moral ideal (pp 193-194). Gardner, however, prefers to say that this second concept is unnecessary, and that it should be sufficient to say that there are specialised moral norms that are "partly constitutive of law as a genre" (p 194). Examples are the norms that law should be prospective (rather than retrospective in application), open, general, and with qualities such as these they constitute a distinctive ideal of legality, known as the rule of law.

But it's not just the internal morality of rules that determines compliance with the rule of law, but it is also the internal morality of the arrangements for upholding their purported application (pp 209-210). Gardner refers to arrangements identified by Raz: a robustly independent judiciary, affordable and easy access to the courts, effective judicial review of executive action, effective appeals, dispassionate professionalism among police, prosecutors, and other enforcement officials, strong respect for procedural propriety, and the giving of reasons for decisions. Gardner points out that it is a violation of the rule of law for a judge to declare a rule but not to apply it, or for a judge to deny there is a rule and to say a case is decided "on its particular facts" (p 210).

I should add that you might compare these requirements of the rule of law to those advocated by Tom Bingham in "The Rule of Law" (2010); he included the norm that the law must afford adequate protection of fundamental human rights, acknowledging in his Chapter 7 that this was not a principle which would be universally accepted as embraced within the rule of law, and he referred to the version of the rule of law put forward by Raz as being "close to what some economists have called a 'thin' definition of the rule of law". Bingham noted that the Universal Declaration of Human Rights and later international instruments have linked the protection of human rights to the rule of law, as has the European Court of Human Rights (citing Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 672, para 69, and Golder v United Kingdom (1975) 1 EHRR 524, 589, para 34).

I found Gardner's discussion of justice in Chapter 10 particularly helpful. He reminds us that justice is proportionality in allocation of goods and ills (p 242). Justice is not peculiar to legal systems and questions of justice arise whether or not there are rules (p 256). But in a legal system the law is only subject to justice at the point where the benefits and burdens come to be allocated. (I interpose: this does not mean only at the end of a case, as judges often have to make decisions during a trial – for example by permitting or preventing some forms of cross-examination – by applying the criterion of the interests of justice.) There are competing moral norms, such as humanity, that a legal system can give priority to, but a court ought to be just above all (pp 244, 259).

Well I don't want to spoil your enjoyment of "Law as a Leap of Faith" by going through it all and revealing its arguments. But in wondering how philosophers work you might ask how all these (what Gardner would call) little thoughts fit into their rightful little places. You may find yourself making a diagram, if like me you are the sort of person who is assisted by images (click on image for full diagram and key).

I keep not depriving you of enjoyment to save myself the task of setting it all out, and also to assist in the accumulation of Gardner's royalties. Dan Brown is safe in the popularity stakes, but "Law as a Leap of Faith" has an excitement of its own that repays any effort needed to adjust to the technical prose.

Rational sentencing

In Elias v The Queen [2013] HCA 31 (27 June 2013) a common law principle of sentencing was clarified: a sentence is determined in relation to the offence for which the offender was convicted, it being irrelevant that another offence with a different maximum penalty could have been charged on the same facts.

Therefore it is wrong for a judge to reduce, or to increase, a sentence because a different maximum penalty was provided for another offence that could have been charged.

If the judge were to be distracted by referring to sentences for other offences, the consistency of sentencing for the actual offence for which the offender was convicted could be endangered. The Court referred [28]-[30] to its decision on consistency in Hili v The Queen (discussed here on 10 December 2010).

The prosecutor's choice of charge is not a fetter on the sentencing court's discretion, because a wide range of considerations, including the maximum penalty for the offence charged, go in to determining the final sentence. The maximum penalty is merely a yardstick provided by the legislature, and consideration of it may not necessarily play a decisive role in the final determination. Justice is individualised at sentencing and judges have a wide discretion, unconstrained by the maximum penalty [26].

The judge must not interfere with the choice of charge, and any abuse of the prosecutor's discretion alleged by the defendant can be the subject of a pre-plea application [35]. The separation of the functions of judge and prosecutor makes it just as inappropriate to sentence on the basis that the judge thinks a less serious charge should have been laid, as that it should have been a more serious charge [34].

This is all said in the context of the relevant sentencing legislation, the Sentencing Act 1991 [Vic]. Things may be different in your jurisdiction, which may give rise to questions about how rational a different regime may be if it permits the taking into account of the maximum penalties prescribed for other types of offences. The Sentencing Act 2002 [NZ], s 8(b) does exactly that. Does it thereby introduce risks of inconsistencies, does it abolish fetters, and does it blur the distinction between judge and prosecutor?

Criminal process, compulsory interrogation, statutory construction, and the right to a fair trial

When might a statute impliedly compromise fundamental rights connected with criminal proceedings? This issue was at the heart of X7 v Australian Crime Commission [2013] HCA 29 (26 June 2013). The Court split 3-2.

The primary question for the Court was, put broadly, whether provisions (Div 2 of Part II of the Australian Crime Commission Act 2002(C'th)) that empowered an examiner to interrogate a person, extended to questioning a person who was subject to criminal proceedings. If the provisions did have that effect, a further question of their constitutionality would arise. The majority held that the provisions did not authorise examination of a person who was subject to criminal proceedings, so that the constitutional question did not arise.

The "right to silence" – not mentioned in the relevant legislation - could be thought of as a general expression, encompassing the right of a defendant not to answer questions put by the police or other persons in authority, and the right of a defendant not to be compelled to give evidence or to assist the prosecution in discharging its onus and burden of proof. That is broadly how the minority, French CJ and Crennan J, described the defendant's rights at issue here [39]-42], although they also mentioned – and recognised the importance of - the defendant's right to a fair trial [37]-[38].

The majority, Hayne and Bell JJ jointly, with Kiefel J concurring, drew from the accusatorial nature of a criminal trial the "right to silence" and the related "privilege against self-incrimination", applicable to defendants and suspects respectively [100]-[102], observing that although historically of relatively recent origin they are fundamental features of the accusatorial system of criminal justice [100], [102].

Whether a statute might, by necessary implication, compromise those features of the accusatorial process, depends on how much weight one is prepared to give them. The majority held these features are out of reach of implied compromise. They held that such an alteration would need to be made "clearly by express words or by necessary intendment" [118]-[119], or – Kiefel J – "must be expressed with irresistible clearness" [158].

The minority said [43] that a compromise of one of the two aspects of the right to silence that it had identified, while the other was left intact, was a legislative balance struck here between competing public and private interests. The minority found that a legislative intent to achieve this balance could be implied from the legislative history and the context of the provision in the overall Act including its provisions that protect defendants [24]-[30], [52]-[61].

Recognising that a trial must be fair, and that compelling a defendant to answer questions or to give opportunities for the obtaining of derivative evidence, could not be reconciled with a fair trial [54], the minority pointed to the existence of powers to suppress publication of evidence, and to control who was aware of the evidence, in order to protect the fairness of a trial, calling them safeguards that are capable of preventing an unfair burden on a defendant [57]. A trial judge's powers to prevent an abuse of process and to punish for contempt are also available to protect the fairness of proceedings [38], [59].

The majority denied that it was basing its reasoning on considerations of fairness, saying that the determinative question in this case was one of construction of the legislation [90]. Recognising that the requirement to answer questions after being charged would fundamentally alter the accusatorial process – which includes pre-trial inquiries and investigations (Kiefel J at [160]) - because the defendant would have to choose at trial a course in the light of any self-incriminatory answers that may have been compelled, and that this would prejudice the conduct of the defence [124], it held that such a result could only be achieved by clear words or necessary intent [125], which were absent in the legislation here [142].

Looking at this case in the round, one could say that, despite the majority's disavowal of fairness as the decisive criterion, the difference between the judges illustrates inconsistent perceptions of what "a fair trial" means. For the majority a fair trial is one in which the defendant may make decisions as to the conduct of the defence without being constrained by information he was compelled to provide to officials, or by information obtained as a consequence of his being under that compulsion. The minority, referring in general terms to the judge's powers to prevent abuse of process [38], only say that prosecutorial reliance on compelled information would be unfair [54], and they do not say how a judge would determine that the prosecution had obtained "an unfair forensic advantage" [59].

Current exploration suggests that an element of a fair trial is impartial determination of the facts, and impartial here means both without bias and without inappropriate weight being given to any item of evidence. Constraints on the presentation of a defence, arising from compulsory interrogation, endanger the appropriateness of the weighing of the evidence by the fact-finder, and thereby endanger the fairness of the trial.

Legislated schemes for compulsory interrogation vary, as one would expect, and can include a right to claim privilege against self-incrimination coupled with a right to refuse to answer a question (subject to judicial review), as does s 138 of the Search and Surveillance Act 2012 [NZ], although in that regime failure to answer questions outside of a claim of privilege appears to be an offence: s 173. In X7 the defendant was told he had a privilege against self-incrimination but he did not have an associated right to refuse to answer questions [12]-[13]. He subsequently claimed privilege and refused to answer questions, which was an offence.

Dissent on the Fifth Amendment, helpful judgment writing, and the permanence of grades

Pre-trial, non-custodial, silence by a voluntarily cooperating person, during police questioning, was the subject of a prosecutor's invitation to the jury to draw an inference adverse to that person who was subsequently the defendant, in Salinas v Texas USSC No 12-246, 17 June 2013.

The intricacies of the law on the Fifth Amendment can be left with people in the United States of America, although they are not particularly difficult. Surprising it is, therefore, to see the Court split: the majority, comprised of a plurality of Alito J, joined by Roberts CJ, and Kennedy J, with a concurring opinion by Thomas J, joined by Scalia J, appear to have all agreed that the defendant had not invoked the Fifth Amendment, and that without invocation the prosecutor was free at trial to invite an adverse inference from the defendant's silence. Thomas and Scalia JJ did not discuss invocation because they considered that a more direct solution was to ask whether the prosecutor's comments were in breach of the Fifth Amendment by compelling the defendant to give evidence, holding that the comments did not. But they did not disagree with the plurality reasoning, as Thomas J says in his first paragraph: " ... even if he [the defendant] had invoked the privilege ...".

The minority, Breyer J joined by Ginsburg, Sotomayor and Kagan JJ, held that express invocation of the Fifth Amendment is not required, and that invocation can be inferred from the circumstances, with it also being relevant to ask whether there is good reason to excuse the individual from referring to the Fifth Amendment, such as "inherent penalisation simply by answering."

The case makes me think of two general matters:

The organisation of the opinions is helpful to readers and could be followed by other appellate courts. The dissenters refer to points in the majority's reasoning with which they disagree, and they state why. Then – and this is the significant point – the majority in footnotes refer to the minority's points of criticism and answer them. The reader is left with a complete account of the debate, rather than having points left hanging.

The other thing is about the marking of student's examination papers. What if a contentious issue, such as that in Salinas, was the subject of an examination question before it was determined by the Supreme Court? Some students, like some of the justices of the Court, would reason to one conclusion, others to the opposite conclusion. The ones who agreed with their teacher's opinion would perhaps – indeed, would probably – get better grades that the others. But the teacher might be wrong. Once the teacher's error is revealed by a final determination of the highest appeal court, should the examination grades be re-assessed? The grades may have been very important for the students, denying some of them scholarships or employment prospects. Undergraduates and graduates are usually members of a university, and perhaps their university should have a duty of care to its members to get its grading right and to correct errors whenever they may be revealed. Why should an incorrectly marked examination paper produce a permanent grade?

When trials do not have to be “according to law”

Does a trial always have to be "according to law"? No.

Being in accordance with the law is not a sufficient condition for a lawful conviction. If an appellate court finds, in the facts of the case before it, circumstances that should amount to a new defence, and if the court then proceeds to recognise and define that new defence, we would expect the court to apply the newly recognised defence to the appeal before it and to allow the appeal against conviction. In such a case the trial was not according to law, in the sense that the defence was not applied, even though at the time of the trial the defence was not recognised and the trial was according to the law as it was then understood to be. Here, the trial although according to law, was defective.

Neither is being in accordance with the law a necessary condition for a lawful conviction. If an appellate court decides that a previously recognised defence has been incompletely defined, and that now, because of the circumstances revealed in the appeal now being considered, an additional matter is an ingredient of the defence, what should we expect the court to do? Should it apply the newly recognised ingredient to the present case and dismiss the appeal against conviction because at trial the defence had not included the new ingredient? Or should it say that the new law applies to future trials, but this one is to be judged according to the old law? Usually, where the substantive law is changed, a defendant has the benefit of whichever version is more favourable to him. So we would expect the appellate court to say that the old law applied to this trial. If the court does the opposite, and says that the new law applied to this trial even though it was then unknown, the court is saying that the trial could result in a valid conviction even though it was not in accordance with the law as it was at the time of the trial. This latter is what happened in R v Gauthier, 2013 SCC 32 (7 June 2013).

At issue in Gautier was whether there had been sufficient evidence at trial to give a defence of withdrawal from participation (what Canadians call abandonment) an air of reality sufficient to require it to be left to the jury. This turned on what the ingredients of the defence were. Fish J, dissenting, shows that the majority have added a new ingredient in relation to aiders and abettors – the taking of reasonable steps to negative the effect of participation – to those that had previously been identified, namely an intention to withdraw, communicated unequivocally to the other participants. Indeed, the majority do not conceal the development of the defence that they are now undertaking: [38], [49]-[50].

The majority applied the new ingredient of the defence to the trial it was considering, and held that there was insufficient evidence of the taking of reasonable steps to negative participation: [62]-[64].

This means that the trial was not in accordance with the law that the Supreme Court was now recognising, but which was unknown at the time of the trial, yet the trial resulted in a valid conviction.

The rule of law requires that the law be ascertainable. This should mean that a person should be tried according to the law as it was ascertainable at the time of the alleged offending. See, for example, PGA v The Queen [2012] HCA 21, discussed here on 30 May 2012 (and referring to Christian v R (The Pitcairn Islands) [2006] UKPC 47 at [24], R v Rimmington [2005] UKHL 63 especially at [33], and Rogers v Tennessee, 532 U.S. 451 (2001)).

Another aspect of Gauthier is reliance on inconsistent defences. There is no rule against this, and all defences, whether raised by the defendant or not, for which there is sufficient foundation in the evidence, should be considered: majority at [34], Fish J agreeing at [97]-[99]. A "sufficient foundation" exists if there is evidence to give the proposed defence "an air of reality", in the sense that the evidence is reasonably capable of supporting the inferences necessary for the defence to succeed: majority at [60], and Fish J at [100] ("some evidence upon which a properly instructed jury could form a reasonable doubt").

Modifying, or applying, the law

Appellate courts sometimes have to extend, modify, or reshape existing law to recognise matters of public policy. More usually, they merely apply existing law. These contrasting roles are illustrated in two recent decisions of the Supreme Court of the United Kingdom.

When a statute is silent on the matter, how is a court to decide whether evidence should be ruled inadmissible because the way it was obtained departed from prescribed procedures? One criterion can be whether the error can be corrected by further investigation. If the test that was done destroyed a sample that cannot be replaced, the result of the test should be inadmissible.

This criterion was mentioned in Public Prosecution Service v McKee (Northern Ireland) [2013] UKSC 32 (22 May 2013). The difference between an unrepeatable test and a repeatable one is discussed at [13]-[15]: a sample collected by a breathalyser device is unrepeatable unless an error is immediately apparent (the machine fails to work properly), so if it is later discovered that an unapproved device was used the result is inadmissible. But if, as in this case, an unapproved electronic device was used to read the defendant's fingerprint, the error could easily be checked at any time by the defendant providing another sample for analysis by, for example, an independent expert. Where opportunities exist for checking a result by repeated testing, an error in the initial procedure should not require the initial result to be held inadmissible.

Well, one might wonder what has happened to the burden of proof here. The policy behind this shift is indicated at [17], and it seems that if the fingerprint was inadmissible here the implications for other cases would have been unacceptable, with limitations on the ability of the police to prove crimes and on the opportunities for defendants to exculpate themselves.

But still. Was the executive wasting its time when it made an Order for the prescribing of procedures for electronic reading of fingerprints? Has the prosecutor in effect asked the Supreme Court to repeal the procedures that were eventually prescribed? Could the Northern Ireland police in the relevant period (1 March 2007 to 12 January 2010) have used any fingerprint reading device they wished to? Apparently yes, for there was no approved device for the first two years of that period [3]. Obviously there was great pressure on the Court to find a solution and avoid the need for retrospective legislation.

Another recent decision of the Supreme Court of the United Kingdom finds the Court exercising its less adventurous function, that of applying established law, on two matters: when, for the purpose of measuring delay, is a person charged with an offence, and when does apparent bias exist arising from judicial comments adverse to the defendant: O'Neill v Her Majesty's Advocate (No 2) (Scotland) [2013] UKSC 36 (13 June 2013).

The law on when, for this purpose, a person is charged was established in Ambrose v Harris, Procurator Fiscal, Oban (Scotland) [2011] UKSC 43 (6 October 2011), discussed here on 7 October 2011. On the facts of O'Neill the defendants were well aware, at the time they now contended was when they were charged, that the police did not intend to charge them. They were like the defendant in Cadder v HM Advocate [2010] UKSC 43, discussed here, but without reference to the facts, on 27 October 2010, and absence of access to legal advice at that time was irrelevant because the defendant's knew their rights and exercised them [35]. So the first interviews, years before the later ones which was when the defendants were charged, was not the one from which time ran for the purpose of determining whether there was unreasonable delay in bringing them to trial.

As to apparent bias, in O'Neill there were two trials: the first involving alleged sexual abuse and the second, the following week, murder. After the jury at the first trial convicted them the judge said to the defendants: "...it is clear that you are both evil, determined, manipulative and predatory paedophiles of the worst sort." The same judge presided at the second trial. The Supreme Court referred to the established law on apparent bias [47], [49], including Helow v Secretary of State for the Home Department [2008] UKHL 62 (22 October 2008), discussed here on 23 October 2008, and held that here the judge had done no more than it was his duty to do [53]-[55]. The comments were not gratuitous and were within the scope of the proper performance of the judge's duties, as a risk assessment was required and the defendants were entitled to some indication of what sentence they might expect. Importantly, no-one involved in the trials raised at the relevant times any objection to the judge's conduct:

"[56] ... the fair-minded and informed observer would take account of the fact that it did not seem to occur to those with the most obvious interest to do so, or their advisors, that the judge had trespassed beyond the proper performance of his duties when he commented on the appellants' character."

New book: Criminal Procedure in New Zealand

Those of you who need to pay attention to the criminal law of our small but picturesque country should be interested in a new textbook, shortly to be published by Brookers – Thomson Reuters:
Criminal Procedure in New Zealand

By Professor Jeremy Finn, Don Mathias, and Ron Mansfield.
It was written in anticipation of the commencement of the Criminal Procedure Act 2011 on 1 July 2013.

Getting good policy past the Fourth Amendment

Maryland v King
USSC No 12-207, 3 June 2013 illustrates how interpretations of the Constitution of the United States of America can distort perceptions of what is reasonable search. The Supreme Court split 5-4 over whether a statute was in breach of the Fourth Amendment's prohibition of unreasonable search insofar as it permitted the taking of a buccal swab from a person arrested for a serious offence, for DNA analysis and comparison with samples from the scenes of unsolved crimes.

The opinion of the Court was that this was reasonable and not a breach of the Fourth Amendment.

The dissenters, whose opinion was delivered by Scalia J, reasoned that the Fourth Amendment has always prohibited search without probable cause, and as the legislation in question permitted the search without even suspicion of the commission of an offence other than that for which the person had been arrested, it purported to authorise search without probable cause. The only relevant reason the challenged aspect of the statute allowed the taking of this sample was for comparison with DNA from unsolved crimes.

The majority held that a person who has been arrested may be searched, and that such a search is not based on probable cause but rather on reasonableness. Here the taking of the sample was reasonable because it involved minimal intrusion and the use of the DNA was a proper law enforcement interest. What the statute authorised here was not relevantly different from obtaining the fingerprints of an arrested person.

It is difficult to see how obtaining a buccal swab from an arrested person and using it for DNA analysis and comparison with DNA from unsolved crime scenes could be objectionable. There are competing interests: the arrested person's privacy, and society's need to promote law enforcement.

The privacy interest here could be analysed into two parts. First, the intrusion involved in providing the sample. This is relatively trivial and has little weight. Second – potentially far more important – the risk that a false positive match will be reported in circumstances where the analysis cannot be repeated because the sample from the crime scene is no longer available for further analysis, combined with the circumstance of the person not being able to rebut the false match with robust evidence of alibi. The coincidence of those two circumstances would be highly improbable, and this second part of the privacy interest should also be given little weight.

Society's interest in law enforcement reflects equality under the law. It is unfair that some offenders should go undetected while others have to face justice. In return for obeying the law we are entitled to insist that everyone else obeys the law. It is true that convictions of the innocent threaten equal justice, so the law must ensure they are kept to a minimum and when they occur redress is made. But overall it seems uncontroversial that society's interests outweigh the privacy interests of the arrested person in this situation.

Identification of the better policy is not difficult; the problem for the Court was to make that policy compatible with the Fourth Amendment.

The trend of legislation concerning the taking of body samples for DNA analysis is to diminish privacy rights. For example – and no doubt your own legislature has done this – in New Zealand the Criminal Investigations (Bodily Samples) Act 1995 has, over the years, been amended to increase the range of offences, arrest for which can trigger the taking of a sample. Amendments have also permitted the making of compulsion orders by officials of lesser rank than had originally been required. The general reduction of recognition of individual privacy rights has also occurred in relation to search and surveillance, with the threshold for most searches being reduced and there also being some reduction in the rank of the official who may authorise the activity. We are also authorising our security agency to gather intelligence (spy) on more people within our country than previously.

To clothe these thoughts in respectable garb, one reaches for a book and, seemingly by chance, comes upon Jacob Bronowski's The Ascent of Man (1973). In Chapter 13 he said this:

"It is a tightrope that man walks, between his desire to fulfil his wishes, and his acknowledgement of social responsibility. ... We devise ethical strategies or systems of values to ensure that what is attractive in the short term is weighed in the balance of the ultimate, long-term satisfactions."

It seems that society accepts that individual privacy must increasingly yield to the needs of law enforcement. That is the climate of our times, and reasonable people do not place their own privacy interests above more pressing societal concerns. There must, however, in the context of DNA sampling, be adequate safeguards against erroneous convictions.

There are concerns with legislation that follows this pattern. What if the person was arrested wrongly, or was subsequently acquitted, but his DNA was found to match a sample from an unsolved crime? An innocent person would then have been subjected to the risk of incrimination that should more properly be borne by the convicted. And, more generally, why is this sort of legislation directed at finding matches only with unsolved crimes; shouldn't it also be developed to serve as a check against wrongful convictions of other persons? Can't a DNA sample be used to exonerate as well as to incriminate?

Pragmatism and lawfulness

State of NSW v Kable [2013] HCA 26 (5 June 2013) is a reminder of the law's foundation in pragmatism. To make the legal system serve its purpose of providing orderly resolution of conflicts, it is necessary that the orders of a court be treated as effective unless and until they are overturned on appeal. There would be chaos otherwise [39]-[40].

So an order of a court for detention of Mr Kable was effective even though the legislation on which it was based was subsequently held unconstitutional. The order had not been set aside during the period of his detention, and his detention was pursuant to lawful authority of the order. He had not been unlawfully imprisoned. The officials who enforced the court order were right to do so.

Leaving that decision to one side for the moment, we can reflect on other instances where the law has to be pragmatic. A judge, or any other official who makes legally binding rulings, may appear to be doing so in a routine way, until someone points out that he was improperly appointed. He did not lawfully hold the office he appeared to hold. What then of all the decisions he had made?

But an official's appointment need not appear to be routine. A usurper may seize power, as in a military coup, sack the judges and "appoint" new ones. Life must go on. Ordinary legal problems must be resolved, ordinary laws need to remain enforceable. The uncontroversial orders of the obviously unlawfully appointed judges need to be obeyed, simply to avoid a worse breakdown of the social order.

One way to determine the de jure validity of the acts of de facto officials is to ask whether the person was in fact competent to exercise the jurisdiction in question, and whether the act of the official ought to be recognised. Are there circumstances of reputation and acquiescence, sufficient to colour the appointment and the acts with validity? See, for example In re Aldridge (1893) 15 NZLR 361 (CA) where a person had been appointed to a non-existent judicial office and his appointment had been held by the Privy Council to have been invalid: Buckley v Edwards [1892] AC 387. The authorities concerning officials who appeared to have been validly appointed, but weren't, are reviewed in State v Carroll 38 Conn. 449 (1871). As to officials who have obviously been unlawfully appointed, and where colour of right does not apply, see Honoré, "Allegiance and the Usurper" [1967] Cambridge LJ 214, and for the law's need to take into account revolutions or coups d'etat, Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC). See also Jarrett, "De Facto Public Officers: The Validity of Their Acts and Their Rights to Compensation" 9 Southern California Law Review 189 (1936), and Brookfield, "The Courts, Kelsen, and the Rhodesian Revolution" (1969) 19 University of Toronto Law Journal 326.

Old stuff, discussion of which has no doubt been the foundation of many academic careers. I only mention it here because I am being nostalgic. Basically it is all about when and how the law should catch up with reality. The answer is not necessarily confined to whether the official was validly appointed or whether the law was valid.

So too in Kable, the question was more complex than mere validity of the law: [22]. The position, long established in Australia, is that "the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction)" [32]. The effect given to the order that was made without jurisdiction comes from the status of the court, not from the invalid legislation, and the effect of the order continues until it is set aside on appeal [36]. Here, the order detaining Mr Kable had been set aside by the High Court in 1996, but that was after he had been released from custody.

This was an unsuccessful action for damages for false imprisonment. Mr Kable's position may be likened to that of a person who has served a sentence of imprisonment but whose conviction was subsequently quashed. The remedy, if there is one (and states make their own – pragmatic - arrangements to deal with these situations), is not an action for damages in tort for false imprisonment, for the imprisonment was lawful.

Giving reasons for dismissing appeals

The constitutional importance of reasons being given by an appellate court when it dismisses an appeal is emphasised in Laing v The Queen (Bermuda) [2013] UKPC 14 (14 May 2013):

"[14] ... All three members of the Board are well aware, from their own experience, of the pressures that are endemic to the criminal appeal courts. But the interests of justice must come first. Once again it must be stressed that an appellant has a constitutional right to be given the reasons for the court's decision if his appeal is dismissed. The more serious the offence of which he has been convicted and the more severe the sentence that has resulted from it, the more important it is that this right should be given effect. This should be done by giving written reasons for the decision or, where they have been given orally, for them to be recorded so that they can be transcribed into written form as soon as possible. Only then can one be certain that the constitutional right has been satisfied.

"[15] It will always be a matter at the court's discretion how much need be said, and whether it should deal with every point that has been raised in the course of the argument. But the guiding principle is one of fairness. The appellant is entitled to be assured that his case has been properly considered and to know why his appeal did not succeed ... ."

But here there was no reason to think that the conviction might be unsafe, and it could not be quashed simply because the appellate court had not provided its reasons for dismissing the appeal. A similar position had occurred in Maharaj v The State (Trinidad and Tobago) [2008] UKPC 28 (8 May 2008).

A failed attempt at retrospective criminalisation

Where an "offence is committed by an omission to perform an act that by law there is a duty to perform" (s 4.3(b) of the Criminal Code (Cth), in the form it was at the time relevant to Director of Public Prosecutions (Cth) v Keating [2013] HCA 20 (8 May 2013)), the duty must exist at the time of the commission of an alleged offence. So much is clear from the use of the present tense, as the High Court of Australia unanimously held in Keating at [49].

The offences alleged in Keating, essentially failure to inform the Social Security department of changes in circumstances that may have been relevant to entitlement to receipt of benefit payments, were against s 135.2(1) of the Code. The requirement there, of engaging in prohibited conduct, was that there must be a duty not to omit to disclose the relevant information. A duty of disclosure was introduced (as a result of DPP (Cth) v Poniatowska, noted here on 27 October 2011) by legislation having retrospective effect, but the existence of retrospective effect did not of itself mean that it engaged with the provisions creating the relevant offence: Keating at [47].

"[48] It is not to the point to observe that ignorance of the law affords no excuse or that the prosecution is not required to prove an intention to breach a legal duty. The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing [footnote 35: "Code, s 4.3(b)"]]. As explained in Poniatowska, s 4.3 of the Code is a reflection of an idea that is fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it [footnote 36: "[Poniatowska] [2011] HCA 43; (2011) 244 CLR 408 at 424 [44] per French CJ, Gummow, Kiefel and Bell JJ; and see Glanville Williams, Criminal Law: The General Part, 2nd ed (1961) at 579-580; Ashworth, "Public Duties and Criminal Omissions: Some Unresolved Questions", [2011] Journal of Commonwealth Criminal Law 1"]. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Mr Bennion explains the principle in this way [footnote 37; "Bennion on Statutory Interpretation, 5th ed (2008) at 807 (footnotes omitted)"]:

"A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly."

So in Keating the new legislation, aimed at overcoming the difficulty identified in Poniatowska, was inadequately drafted to overcome the presumption against unjust legislative intent. It did not render s 4.3(b) of the Code nugatory. It did not make a person criminally liable for past failure to perform what was not then an obligation.