The principle of legality, rights limitation by necessary implication

Parliament may make laws that deliberately infringe people’s rights. Including rights contained in a Bill of Rights.

 

But bills of rights may require that legislation is to be interpreted consistently with individual rights, so far as it is possible to do so.

 

The exact wording of this sort of interpretive requirement may vary between bills of rights in different states. [1]

 

However, there is a generally applicable principle which requires that when Parliament intends its legislation to infringe individual rights, it can only do so “by express words or necessary implication.” This is called the principle of legality.

 

Differences over whether rights infringement was a “necessary implication” were central in D (SC 31/2019) v Police [2021] NZSC 2 (9 February 2021). [2]

 

The majority held that the relevant legislation was insufficiently clear to displace the presumption against retrospective penalties. The minority considered that the only available interpretation of the legislation was that it did displace that presumption.

 

It is for Parliament to decide what to do to avoid the consequent incongruities (noted by Glazebrook J, dissenting on this point, at [243]-[248] and referred to in the joint majority judgment of Winkelmann CJ and O’Regan J at [82]).

Given the disagreement here among Judges of the final appeal Court over application of the principle of legality, you might fairly ask whether the majority could have given clear guidance on how such disagreement might be avoided in future. Should the principle of legality have been modified by excluding “necessary implication”, so that clear words are required for legislation to infringe rights? A statutory example of clear words is mentioned at [79].

 

The rejection in New Zealand of the more “far-reaching” interpretive approach in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 drew mention from Glazebrook J at [253] of academic commentary about when the courts might be prepared to override Parliament’s purpose.

 

The extent to which, on an appeal against sentence, the appellate court should consider evidence of recent (that is, post-sentencing) assessments an offender’s prospects of rehabilitation, also arose for comment in this case.

 

No objection had been taken to the consideration of such material by the appellate courts here, so the point did not need to be decided, but William Young J observed that on sentence appeals the issue is whether there had been an error at sentencing, so he had reservations about the practice ([305]-[307]). Glazebrook J had reservations too, but on the narrower ground that the scheme of the present legislation seemed to be against consideration of such updating material (at [262]).

There are also some interesting remarks on judgment anonymisation in contrast to name suppression: see [136]-[147].

I don’t need to distress you with a more detailed consideration of this appeal, because the Court itself sets out an admirably clear summary of the positions taken by each Judge and the result of the case (at [1]-[11]). Thank goodness for that.

Update: All the judges in this case recognised that Parliament may wish to address the anomalies identified by Glazebrook J (see majority judgment at [82]). A Bill was introduced on 17 March 2021, and it became law on 23 March 2021, to make the retrospective effect explicit in respect of people convicted and sentenced on or after 14 October 2016 (when the Registration Act came into force) for offences committed in New Zealand or overseas before that date. An exception is made for the individual appellant in D (SC 31/2019), who can keep his victory in the appeal. This exception may be for constitutional reasons, illustrating the separation of powers - Parliament, in correcting its legislation after the successful efforts of an appellant, will not interfere with the court's decision in that individual's case.

 

 

[1] For example, s 6 of the New Zealand Bill of Rights Act 1990, s 3 of the Human Rights Act 1998 [UK], and see my comment on the difference between these (8 September 2011). See also my discussion of Momcilovic (9 September 2011).

 

[2] The principle of legality is referred to in this case at [76]. For background, see Bruce Chen “The Principle of Legality: Issues of Rationale and Application” (2015) 41 Monash University Law Review 329. In New Zealand the principle has statutory form in s 6 of the New Zealand Bill of Rights Act 1990. Its rationale as an interpretive aspect of the rule of law is that Parliament understands the way the courts will interpret its legislation, treating it as improbable that there would be a departure from fundamental rights without express and unambiguous statutory wording to avoid the risk that legislation will have unintended consequences.

Consent and sexual grooming - when discussion gets irrational

Calm rationality quickly flies out the window when talk turns to the subject of consent in the offence of rape.

 

This thought occurred to me upon reading an article in the December 2020 edition of the New Zealand Universities’ Law Review. [1]

 

The issue was whether so-called relationship evidence (not a statutory term) should ever be admissible in support of a defendant’s claim of having a belief on reasonable grounds that the complainant consented.

 

Note that a requirement for conviction is that the prosecutor proves beyond reasonable doubt that the defendant did not have a reasonably held belief in consent.

 

Written by an academic, the article offers criticism of two decisions of senior courts, with the aim of encouraging debate over reform of this area of the law.

 

There is a good deal of virtue signalling. The author claims the views he supports are “progressive”. There are plenty of harsh adjectives. One decision is described as “effectively greenlighting the exploitive sexual behaviour forming the subject of the case,” as “brush[ing] aside any attempt at more subtle, sophisticated or policy-based discussion,” as failing to “get to grips with these issues” in a way that “is simply evidence of deeper flaws underlying [the decision’s] approach” to the legislation. Further, there is vagueness, indeterminacy, and erroneous reasoning.

 

Needless to say, with that resounding criticism as a motivator, I read the decision at which it was aimed. Here it is: Christian v R [2017] NZSC 145, [2018] 1 NZLR 315.

 

The Court did not decide that relationship evidence (the complainant’s previous sexual experience with the defendant) is always admissible. The Court (in the joint judgment) was simply applying the law to the circumstances of the case before it. Its speculative comments at [45] are no more than supposition about what could be a positive expression of sexual consent, a positive expression which is necessary for it to be legitimate (that is, reasonable) for the defendant to infer consent. Relationship evidence “may be capable of evidencing consent if there is nothing to indicate that the mutual expectations [concerning consensual sexual behaviour] are no longer accepted.” [emphases added]

 

The decision does not change the law. It did not have to resolve general matters, which are for legislators to decide. It does not make assertions about when relationship evidence must support an inference of consent. The word “grooming” is used once (at [67]), and is here equivalent to “seducing”, something the Court felt was highly unlikely but it should have been left for the jury to consider.

 

It is wrong to sever the question of consent from the circumstances in which it is claimed to have been absent. I disagree with the author’s endorsement of the view that “Consent is ... given to a person, not a set of circumstances.” Indeed, the quotation from Lady Hale offered in support of the separation of consent from circumstances actually puts the opposite proposition: “One consents to this act of sex with this person at this time and in this place.”

One must look at the circumstances to assess whether the defendant could not reasonably have believed the complainant was consenting. Just as propensity evidence can be admissible against a defendant, so too should it be admissible against a complainant. If a complainant had a propensity to consent to sexual intercourse with this defendant on other occasions similar in time and place, and if there is nothing to indicate any difference on the present occasion, why should that previous behaviour be ignored?

It is sometimes said that it is illogical to say that because a complainant consented before, there must have been consent now. That indeed is illogical, but it is not really the rationale for the relevance of previous conduct. The focus is on what the defendant perceived, and whether a perception of consent on the present occasion was reasonable. The relevant standard is common sense, which is not always the same as logic.

 Grooming, as that word is currently used by commentators in this context, means “overbearing the will of a younger complainant in order to falsely manufacture their compliance.” While the conduct referred to in that definition is indeed objectionable, and should be criminal, that is not the sense in which the word is used by the Court in this decision. There could have been an issue for the jury about whether the complainant’s will had been overborne or whether she had been seduced into consenting.

 

The complexities of life are not necessarily appropriately examined within the strictures of absolute evidentiary rules. Courts need the flexibility to assess evidence in the full context of the realities of sexual behaviour.

 

 

[1] Scott Optican, Christian v R and Jones v R: How Bad Consent Law Creates Bad Evidence Law in New Zealand Sexual Offence Trials (2020) NZULR 283.