Avoiding unnecessary complexity: Miller v R (Bahamas) [2023] UKPC 10

Explaining the meaning of the verb “to intend” led the legislature of the Bahamas into a complex mess of ideas in s 12 of its Penal Code.

Considering this, the Privy Council, in Miller v R (Bahamas) [2023] UKPC 10, observed at [18] that:

“… intention is an ordinary facet of human conduct and it is not normally a difficult concept to understand. In most cases it ought not to require any explanation. In the absence of an admission, or statement as to intention, this ingredient of an offence will generally be established through the process of drawing an inference from the surrounding, or primary, facts as proved. Such an exercise is part and parcel of the ordinary decision-making process which a jury is required to undertake….”

And in emphasising the importance of simple directions to a jury, the Board held that simplicity would have sufficed in this appeal. Indeed, the circumstances were so compelling that despite a series of judicial misdirections at trial on the meaning of “intend to kill” the proviso could be applied so that the appeal against conviction for attempted murder was dismissed.

In its effect, s 12 (reproduced in the judgment at [13]) did not alter the ordinary meaning of “intend”. This was so, despite its intensive mixing of complex concepts: causing, contributing to causing, belief, unlikely, voluntarily, probably, reasonable caution, great risk, presumed, shown that, probably not.

Anyone who was unsure of the meaning of the verb “to intend” would consult a dictionary, and would find that it means to have as one’s purpose. Enough said.

Section 12 widens this. Here, intention is not just a matter of what the defendant wants to occur. It also includes what the defendant believes will probably occur.

Subsection (3) is so remarkable that I set it out here:

“If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event, until it is shown that he believed that the act would probably not cause or contribute to cause the event. “

In this case, the Board pointed out at [40] that there was no need for the judge to have considered s 12(3) at all. One of the judge’s errors was to interpret s 12(3) as applying a standard of negligence and objectively assessed intention (at [43]).

Most lawyers reading s 12(3) would think it does indeed impose liability for negligence (failure to use reasonable caution and observation in assessing the risk of a consequence), and further, that it reverses the onus of proof by the use of a presumption of intention.

That difficulty was brushed aside. At [40] it was held that the jury must be given “clear guidance”, and that s 12(3) should not be read to a jury. If it is read, it needs “proper explanation”, and “clear exposition” to avoid suggesting to the jury that an inference of intent must necessarily be drawn.

This was not a case where foresight of consequences was properly in issue (the appellant had fired a shotgun at a person from a distance of "fifty to sixty feet" (at [3])), but

“… Even in a case in which foresight of consequence is properly in issue the Board doubts that there will be value in inviting a jury to absorb and apply the provisions of [s 12(3)].” (at [41])

The message seems to be that there may be times when a legislative intent is more clearly expressed by a court than by the legislature itself.

Interveners and discussion of extraterritoriality: R v McGregor, 2023 SCC 4

There has been a good deal of discussion among Canadian academics over the extent to which “international” law applies in Canada. Criticisms have been made of R v Hape, 2007 SCC 26 (a case I noted here on 11 June 2007).

A domestic trial is conducted according to domestic law. In criminal cases the main point of contention, when evidence is collected in another country, is whether it is admissible according to domestic law.

Some people think that this involves extraterritorial application of domestic law. It doesn’t. Nobody in another country is affected in any way by what the domestic court rules in a domestic criminal trial. Certainly, officials in another country may wish to consult the domestic law if they are to be helpful in obtaining evidence that will be admissible domestically, but that is a practical matter, not a legal one.

If evidence is collected in another country in a way that is unlawful according to the law of that country, the question for domestic courts is still determined according to domestic law. It is quite likely that illegality in another country would also be illegality domestically, at least where the other country follows the common law tradition inherited from England, or where it has incorporated into its law the same human rights treaties and conventions. But that is not necessarily so. Imagine, for example, that in some country search warrants could only be granted if it was certain that evidence would be found. That is a much higher standard than the usual (and in this example, domestic) requirement of reasonable grounds to suspect that evidence would be found. The question for the domestic court would be whether the domestic standard was met, notwithstanding that the search was illegal in the other country.

In R v McGregor, 2023 SCC 4 (17 February 2023) the Court had, in anticipation of the appeal, allowed submissions from interveners on whether the law as stated in Hape needed to be changed. As it turned out, and unsurprisingly in my view, the Court decided it did not need to consider Hape, as neither party to the appeal suggested that Hape was materially wrong.

The circumstances surrounding the obtaining of the evidence in McGregor were unremarkable. There was no illegality either according to the law of the foreign country (the USA) or of Canada.

The Court did not find it necessary to grapple with supposedly difficult questions about the extent to which so-called international common law is part of the common law of Canada, or whether comity requires Canadian statutes to be read according to a foreign prescription. I say “supposedly” because I think that the criticisms of Hape, summarised by Karakatsanis and Martin JJ at [66]-[76] are well founded.

But one can still ask, is there really a question about extraterritorial application of the Canadian Charter of Rights and Freedoms? Does international law impose on domestic courts new rules for interpreting legislation, or does domestic law inherently recognise equivalent rules? No, no and yes.

More interesting is the discussion of the role of interveners. Rowe J is strong and restrictive on this, but Karakatsanis and Martin JJ jointly wanted to discuss Hape so were more tolerant of an expansive role for interveners in assisting the Court in developing the jurisprudence by dealing with questions of public importance.