Introduction (2) On judges

It is not unusual for a lawyer whose case on appeal is rejected to think that the judges have twisted the facts to suit that result. Montaigne, although not talking specifically about judges, suggested this sort of twisting is a product of intelligence:

"Men of intelligence notice more things and view them more carefully, but they comment on them; and to establish and substantiate their interpretation, they cannot refrain from altering the facts a little. They never present things just as they are but twist and disguise them to conform to the point of view from which they have seen them; and to gain credence for their opinion and make it attractive, they do not mind adding something of their own, or extending and amplifying."

Montaigne, "On Cannibals", Essays Book One Chapter 31, above p 108.

The style that Montaigne thought appropriate for advocates compliments this judicial twisting of the facts. It gives the judge as much as possible to work with. It is the style he attributed to Cicero: long drawn-out preliminaries including preambles, definitions, classifications and etymologies, time-wasting dissections and beatings about the bush,

"Cicero's way is right for addressing a judge whom one wishes to convince by fair means or foul, or for using on children, and the common people, with whom nothing must be left unsaid, in the hope that something will hit the mark."

Montaigne, "On Books" Essays Book Two, Chapter 10, above p 166.

Today this technique extends to the filing of overly prolix written submissions. It is as if the more that is said, the more likely it is that the judge will agree with something that is said.

Modern commentators can be even less charitable about judicial fact finding. Alan Dershowitz asserts that the political nature of judicial appointments in the United States means that judges who wish to be promoted should side against criminals:

"The heavy thumb of careerism is on the scale of justice in nearly every criminal case, certainly in high-profile cases involving unpopular defendants."

Dershowitz, Letters to a Young Lawyer, 2001, p 120.

Richard Posner complains that

"Too many of our judicial opinions contain unexamined assumptions, conventional and perhaps shallow pieties, and confident assertions bottomed on prejudice and folklore."

Posner, The Problems of Jurisprudence, 1990, p 97.

He also observes that

"Appellate judges in our system often can conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents."

Posner, How Judges Think 2008, p 144.

Montaigne's observation on the way intelligent people tend to think could have been made, not 500 years ago, but today. Human nature can lead judges to find the facts to be as they want them to be. The appellate judges, who do not usually hear oral evidence, have, despite their protestations to the contrary, as much power to evaluate the evidence and to criticise a lower court's reasoning as the fact-finding courts have power in the guise of assessment of credibility.

The deference that appellate judges profess for the factual determinations of lower courts may be as sham as the deference given to judges by counsel. Deference attaches to the power exercised by judges, and is just as transient.

"Like that accorded to wealthy people, this deference is of the shallowest kind: as soon as the judge loses office, as soon as the wealthy person loses money, the deference ceases. Sensitive people realize this, but it does not eliminate the pleasure of being treated in a respectful manner. The republican simplicity of manners – the "I'm no better than the next guy" deportment – that most American judges affect is intended to be admired rather than to be taken seriously. Judges receive deference because they have power, and the power resides in their votes. They don't have much power (Supreme Court Justices are an important exception, and the petty tyranny of the trial judge is well known) and they are not much deferred to (with the same exceptions). But such deference as they do receive comes from their being, like wealthy people, more powerful than most people, not from being – like athletes, popular entertainers, war heroes, saints, and scientists – admired. Most judges are quickly forgotten after they leave office."

Richard Posner, Overcoming Law (1995) pp 120-121.

The difference in manners between the friendly informality of the superior court judges and the petty tyranny that is sometimes seen in the lower courts is probably universal. Working conditions vary, and the highly pressured muddle of lower court proceedings may contribute to a judge's bad manners. So too may inability to cope:

"A man who overestimates his capacities is apt to grow impatient, and even tyrannical, in the presence of difficulties."

AC Benson, From a College Window (1906), p 276.

The kind of judge who is suited to appellate work may have a personality that is not naturally given to unpleasantness, or that is not inclined to react to high pressure and disorder by unpleasantness:

" ... judging, especially at the appellate level, is an introvert's profession ..."

Richard Posner, How Judges Think (2008), p 137.

It may be that the pleasantness of high level judges is due, apart from their indulgence in the hypocrisy of a "republican simplicity of manners" or their relatively orderly and unpressured working conditions, to their having regressed to the kind of work they did at law school. Judgment writing is a scholarly activity, and the level of scholarship is often higher than that attained by the law teachers. This brings me to my point of view on these judges: they are scholars. Sometimes they are overeager to show their cleverness, especially when promotion may be a possibility. Usually they are like ambitious honours students.

Judges at the appellate levels have an educative function. Their judgments are often like extracts from text books or specialist treatises, and as such they are designed to be studied. Some of us do study them.

Introduction (1) – the point of view

"To find a congenial subject, and to express that subject as lucidly, as sincerely, as frankly as possible, appears to me to be the most delightful occupation in the world."

AC Benson, "From a College Window" (1906) p 208

Benson's subject was human nature, and this book is required reading for any educated person. My congenial subject is criminal law, and my highly technical approach to it will be of interest to only a few. I have tried here to describe its recent developments lucidly and sincerely, but not necessarily as frankly as I could have. This is not the occasion for absolute frankness, for the law of contempt must be borne in mind, and it is more sensible to confine myself to the "delightful occupation" of attaining mastery of the subject. But first things first. What do some of western civilisation's really wise guys have to say about tackling a subject? Schopenhauer described the process of attaining mastery:

"... only through ordering what you know by comparing every truth with every other truth can you take complete possession of your knowledge and get it into your power. You can think about only what you know, so you ought to learn something; on the other hand, you can only know what you have thought about."

A Schopenhauer, "On thinking for yourself" in Essays and Aphorisms (trans.RJ Hollingdale, Penguin Classics 1970) p 89

My aim is to learn what judges have said about the law, to think about those dicta, and to compare the emergent "truths" in order to make the subject mine. In considering the opinions of judges it is more important to be sincere – that is, honest - and respectful than it is to be frank.

"One of the many excellent customs of our ancestors was their invariably respectful treatment of experts in the interpretation of our excellent law."

Cicero, "On Duties (II)", in Cicero: On the Good Life (trans. Michael Grant, Penguin Classics 1971) p 156.

Cicero also said, controversially, that it is more honourable for a lawyer to defend than to prosecute (ibid, p 145). My opinion is that when they are done properly both prosecuting and defending are equally honourable. Neither role necessarily requires frankness but both involve respect. It is apt to consider Montaigne's observation:

"It suits our imagination better to think of a craftsman on the close-stool or on top of his wife, than of a Chief Justice, venerable for his bearing and his talents, in the same position."

Michel de Montaigne, "On Repentance", in Essays (trans. JM Cohen, Penguin Books 1958) p 241.

Yes, judges defecate and copulate, some perhaps not as much as they should, but I am not here concerned with judges as people. I do not aim to inquire into whatever intrigues and stratagems may be found between the lines of their decisions. At the same time, I am not a naive toady. Like Schopenhauer (above, p 218), I concede a superior judgment to nobody. And the application of that judgment to the work of judges is an intense intellectual exercise, and like all such exercises is "the most wonderful spiritual nourishment in the world" (Cicero, "Discussions at Tusculum V", above p 87).

And now for something completely different ...

Posts to this site will continue. There will be a new approach. Instead of a commentary on new cases as they are decided, I will post occasional observations on topics which should be of interest to advanced students and practitioners.

Now we are five

Five years of blogging!

That concludes my ongoing commentary, but I may occasionally add updates to particular entries. To locate these, search this site for "Update"; if the search function isn't working, try the alternative site (link on right).

Disclosure of warnings and diversions

It may be necessary for the prosecution to disclose to the defence information about prosecution witnesses concerning warnings that they have received from the police about their conduct, and about measures alternative to prosecution (eg diversion) that such witnesses have undergone: HM Advocate v Murtagh [2009] UKPC 36 (3 August 2009), para 40(iv).

Such disclosure would be required if, as with any criminal convictions, that information would be material in the sense that it would either undermine the case for the prosecution or assist the case for the defence.

The decision on disclosure is, in current Scottish law, governed by the common law and is a matter for the prosecutor. Cases noted here and mentioned in Murtagh are Holland v HM Advocate (25.5.05), Sinclair v HM Advocate (24.5.07) and McDonald v HM Advocate (21.10.08).

The leading judgment in Murtagh was delivered by Lord Hope, and the only real point of some divergence was on whether it would be preferable for the prosecutor to disclose all the convictions of prosecution witnesses unless those convictions would be both embarrassing and immaterial (Lord Scott 43, Lord Brown 73).

While the common law does not require the prosecution to disclose information about the convictions of witnesses it knows the defence will or may call, Lord Rodger noted (70) that such disclosure would be consistent with equality of arms.

The accused's fair trial right is absolute and is not a matter for balancing against the privacy interests of a third party: Lord Scott (43; there was no disagreement on this). Criminal records held by the authorities can attract privacy interests, especially if they are old, so full disclosure is not an absolute right (Lord Hope at 18, 28). So, although the right to a fair trial is absolute, the right to disclosure is qualified (29).

Material convictions go to the witness's credibility or character (Lord Hope, 30) and a generous interpretation of what might be relevant should be taken, although a threshold applies (31). There are practical problems with the full disclosure approach favoured by Lord Scott and Lord Brown, such as the potential for harassment and other misuse of them by unrepresented defendants (33). There is no requirement of disclosure of the records of defence witnesses (39).

Lord Rodger emphasised the undesirability of redacting lists given to the defence, as that process can be time consuming (59) and can lead to disputes (69). Where disputes do arise, the judge should resolve them (69, and Lord Brown at 73), although Lord Hope saw no need for the disclosure decision to be transferred to some other party (15).

Disclosure of warnings and incidents of diversion from prosecution is not specified in recent legislation in New Zealand, the Criminal Disclosure Act 2008, although it would probably come within s 13(2)(a) which requires disclosure of "any relevant information", and the specified matters do not limit that expression.

On being informed about decisions to prosecute

There is a right to be told of how decisions about whether or not to prosecute are made: R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009).

Article 8 of the ECHR provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Appellate Committee ordered the Director to publish a specific policy on decisions to prosecute allegations of assistance in suicide. Here there was a possibility that assistance might be given to a person who wanted to commit suicide lawfully in Switzerland, by helping them leave the United Kingdom for that purpose. The potential assister wanted to know about the likelihood of being prosecuted.

The common law on liability for assisting what would be an offence in the jurisdiction where the assistance is given, but not an offence where the full offence is committed is reasonably clear, although Lord Phillips did not think it was necessarily as settled as did Lord Hope who delivered the leading opinion. Whether that jurisdictional issue was settled or not, the real issue in this case was access to information about decisions to prosecute.

Baroness Hale noted (57 – 58) the recent Parliamentary debates on the issue of assisted suicide, which did not result in legislation. There were drafting difficulties, and indications of a preference to leave the matter to prosecutorial discretion. Since a major objective of the criminal law is to warn people of when they might be punished (59), article 8(2) was engaged (62). Lord Brown said article 8(2) required accessability and foreseeability in assessing how prosecutorial decisions are likely to be exercised (85). Lord Neuberger said the applicant was entitled to guidance on that (106).

Lord Hope pointed to the crucial circumstances that a Code guiding prosecutorial decisions should address (53):

"...There could be [... cases] unsuitable for prosecution where, for example, it could be said that those who offered assistance stood to gain an advantage, financial or otherwise, by the death. An assistant who was not a relative or a family friend might have to be paid, for example, and a relative might derive some benefit under the deceased's will or on intestacy. The issue whether the acts of assistance were undertaken for an improper motive will, of course, be highly relevant. But the mere fact that some benefit might accrue is unlikely, on its own, to be significant."

He concluded:

"54. The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) [of the Suicide Act 1961[UK]] says ["A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years"] and the way that the subsection is being applied in practice in compassionate cases of that kind.

"55. The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

"56. I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act."

This is an interesting example of the common law going where Parliament fears to tread.

Disclosure, fair trial, truth and justice

No progress in development of the idea of the accused's right to a fair trial was made in R v Bjelland [2009] SCC 38 (30 July 2009).    

The remedy for untimely disclosure was discussed, and the court divided 4 – 3 on whether the availability of exclusion should be approached in a restricted way. The majority (per Rothstein J, with McLachlin CJ, LeBel, and Deschamps JJ) held that exclusion is only appropriate if there is no other way of protecting the accused's right to a fair trial or of avoiding compromise to the integrity of the justice system. Here, the judge had wrongly ordered exclusion because the trial could have been delayed further. The minority (per Fish J, with Binnie and Abella JJ) would not have reviewed the judge's decision as there had been no error on an approach that would have permitted wide discretion as to remedy, following the established approach to s 24(1) Charter.

So, what is a "fair trial"? The majority quoted (22) McLachlin J (as she then was) in R v Harrer 1995 CanLII 70 (S.C.C.), [1995] 3 S.C.R. 562 at 45:

"At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused." [Emphasis added by the majority in Bjelland.]

So, fairness means "basic procedural fairness". Ho ho. Now we know.

This was linked to the idea of the trial as a search for truth. I thought the police investigation was a search for truth, and the trial a test of the strength of the evidence presented as a result of that search. The minority thought so too (65):

"The policy of the law in this regard was well put by Samuel Freedman, then Chief Justice of Manitoba, in this well-known passage:

"The objective of a criminal trial is justice. Is the quest of justice synonymous with the search for truth? In most cases, yes. Truth and justice will emerge in a happy coincidence. But not always. Nor should it be thought that the judicial process has necessarily failed if justice and truth do not end up in perfect harmony. . . . [T]he law makes its choice between competing values and declares it is better to close the case without all the available evidence being put on the record. We place a ceiling price on truth. It is glorious to possess, but not at unlimited cost. 'Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.' "

"(S. Freedman, "Admissions and Confessions", in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 95, at p. 99, quoting Pearse v. Pearse (1846), 1 De G. & Sm. 11, 63 E.R. 950, at p. 957.)"

Nothing further was offered by the minority on what is a "fair trial".

The majority also held that the right to make full answer and defence does not include as a component the right to cross-examine at preliminary hearing (35). That is no doubt correct now that disclosure regimes have been formalised. No doubt there could be cases where the right to make a full answer requires an opportunity to cross-examine at preliminary hearing, but that opportunity would not amount to a general "right".

Choice

Capacity to make a choice requires understanding, weighing of information, and choosing:

"the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at [a] choice": see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295, approved in Re MB (Medical Treatment) [1997] 2 FLR 426."

per Baroness Hale a para 24 of R v C [2009] UKHL 42 (30 July 2009). The choice must be autonomous (free) and must not be driven, for example by a compulsion, delusion, or phobia (25).

Inability to communicate a decision to refuse consent amounts to an inability to make a decision (29).

This was said in the context of the Sexual Offences Act 2003[UK], s 30(1) and (2), but its core is no doubt of wider relevance. It could apply wherever a "decision" is required (avoiding the words "consent" or "refuse"), as in Crimes Act 1961[NZ], s 138.

The two cultures

Answers to jury questions must be responsive and must not deter further questions: R v Layton [2009] SCC 36 (23 July 2009).

If the jury has a copy of the judge's summing up then mere repetition of the words used in it is not likely to be responsive. Here, a direction on the standard of proof led to a question seeking clarification. A difficulty arose because the law is reluctant to elaborate on what "beyond reasonable doubt" means, apart from the standard direction.

It is easy to see why the phrase "beyond reasonable doubt" causes trouble to jurors. It is a description of the required level of proof, which may be thought of as going in one direction, yet at the same time it is expressed in terms of doubt, which tends in the other direction.

As lawyers we are so used to the expression "beyond reasonable doubt" that we take its meaning for granted, ignoring this contradiction in the composite concepts. Even though juries frequently ask for further assistance on the meaning of "beyond reasonable doubt" (see also R v Griffin [2009] SCC 28 noted here 19 June 2009), the law is not clear on what more should be said.

In Layton the standard R v Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320 direction had been given. In the second day of its deliberation the jury returned with this question:

"Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities"

citing the relevant part of the standard direction.

In the terms I mentioned above, although the first sentence refers to doubt, the second is about proof.

The standard direction contained this phrase: "...the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities."

Given that the jury had this in writing, why the question?

It's a mystery to lawyers, and it is not surprising that counsel in this trial had been unable to offer much by way of assistance to the judge in her preparation of the answer.

Perhaps the jury was really seeking clarification on doubt: how much difference is there between no doubt (absolute certainty) and the balance of probabilities? That is a sensible question, because proof on the balance of probabilities can be achieved by elimination of any of a range of doubts. To put it mathematically (as the law doesn't but as people do tend to: see note on R v Wanhalla 25 August 2006), proof on the balance of probabilities may leave no doubt, or up to 49% of doubt. It would be over-proof, but the result would be the same for leaving any level of doubt in that range. For example, if a doubt of 25% remained, it would still be correct to say that the plaintiff had proved his case on the balance of probabilities. So too if the doubt was 10% or 49%. But if the doubt was 51% or more the plaintiff would have failed to prove his case on the balance of probabilities.

The most helpful way of answering the question would be to say that the balance of probabilities is satisfied even though there may be 49% doubt, and absolute certainty is where there is zero doubt. The criminal standard of proof tolerates much less doubt than the balance of probabilities: much closer to zero doubt than to 49% doubt.

But the law doesn't approve of the use of approximate figures or mathematical analogies. The two cultures persist.

Aiming les brickbats at le top

A full eleven days after the decision in Matenga v R [2009] NZSC 18 (13 March 2009, mentioned in note of 9 July 2009) came to my attention, thanks to the Privy Council, I am still a bit grumpy.

Fact-finders: judges compared with juries

A pivotal part of the reasoning in that case is this sentence, beginning para 18:

"It is artificial to say that Judges, while holding one view themselves, may ascribe a different view to the hypothetical jury."

The assumption is that the appellate judges will hold a view of the appropriate verdict in the first place.

It is officially known that juries do not always reach the same verdict that trial judges would have. The New Zealand Law Commission has published a study on juries: "Juries in Criminal Trials – Part Two" Preliminary Paper 37 – Volume 2 (Wellington, November 1999). There, at para 9.3 – 9.4, the authors summarise results on jury agreement and disagreement with the judge in the trials studied:

"9.3 The judge and jury were essentially agreed on the appropriate verdict in 24 out of the 48 trials. These comprised: 17 verdicts of guilty on all or most counts; six verdicts of not guilty; and one verdict of not guilty by reason of insanity. In a further 11 trials, where there was disagreement between judge and jury as to the appropriate verdict on one or more of the counts in the indictment, the jury's view appeared to be reasonable and supportable on the evidence. In most of these cases, the disagreement simply resulted from differences in the assessment of the credibility of key witnesses, but in one case the jury based its verdict on features of the evidence, clearly establishing guilt on one of the counts, which the judge overlooked. Moreover, in many of these cases, judges were in fact hesitant about their view (sometimes making a point of stating that they did not think about it during the trial), and asserted that the jury could reasonably take a different view of the facts from that which they expressed to us. Overall, therefore, a verdict which was either fully supported by the judge or supportable on the evidence was given in 35 out of the 48 trials.

"9.4 In the remaining 13 trials, five were classified as "compromise" verdicts in multiple count cases; three were classified as either perverse or questionable verdicts; and five involved fully hung juries... ." [emphasis in para 9.3 added]

There was no need for Matenga to decide that an appellate court should take on the fact finding role of a jury. But the Court thought this was required by the existence of the proviso:

"[29] Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the Judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies."

The other view – the one that I suggest is traditional - is that the proviso requires the appellate court to be the ultimate arbiter of the fairness of the trial. That would involve determining whether the law was properly applied to facts determined impartially. Did the error, the miscarriage of justice, give rise to a real risk that the tribunal of fact was rendered partial? Many appeals, where the proviso could not be applied, would be concerned with trials that had not been fair. In deciding fairness, the appellate court does not have to reach its own verdict.

What is a "fair trial"?

Unfortunately, in Matenga the Court seems to have removed much of the content of the concept of a fair trial. This occurred by treating the requirement for a fair trial as something that could be satisfied notwithstanding that further issues of the substantiveness of the miscarriage needed to be decided. The risk is that this reduced concept of a fair trial will be nothing more than a trial by a lawfully constituted tribunal exercising lawful jurisdiction. That is a requirement for a "trial" but it doesn't establish that the trial was "fair".

The idea of a fair trial is important because if the trial was unfair Matenga does not require the appellate court to embark on deciding its own verdict. Yet Matenga, while acknowledging that the accused's right to a fair trial is an absolute right, does not say what a fair trial is. In cases where the trial transcript is a bulky document, appellate judges will be grateful for the opportunity to avoid its close study by deciding the appeal on fairness grounds. But how?

The good bits

It must be acknowledged that Matenga anticipates that wherever there is a credibility contest the proviso will be unlikely to be applied. That was the position in Matenga itself, and there was no detailed discussion of the contentious evidence.

"29 ... considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses."

Many cases are of that nature. Many others consist of incriminating circumstances and an explanation tendered by the accused; in those the "assessment of witnesses" may focus only on the accused. Even so, Matenga suggests that there also the appellate court would exercise "considerable caution" before dismissing the appeal. So Matenga may be reserved for cases where the prosecution case is circumstantial, where the accused does not give evidence, and where the error at trial would not have prevented a fair trial. Barlow (noted here 9 July 2009) was treated by the Privy Council as an example, although it is open to question on trial fairness grounds: was the jury made partial by being given evidence which may not have been as reliable as it then appeared to be?

Final jette un brickbat

Dissatisfaction with an appellate court's conclusion that a guilty verdict was correct can arise from below (we, the people) or above (the court of second appeal, as in Matenga). Jury trials were invented to place responsibility for the verdict in the best hands. It is better that criticism should be directed at juries than at the judiciary. The jury study shows that the reasonableness of judges as fact-finders is not a given. Judges should stick to their knitting.