Fairness, efficiency and case mismanagement: R v Haevischer, 2023 SCC 11

I once knew a judge whose smile was upside down. The corners of this person’s mouth almost reached the jaw line. When I first noticed this, I thought the condition must be neurological. Then I noticed it in many judges, so it must have been contagious.

If inverted happiness is a judicial condition, what causes it? What is its relationship to sadness? Sadness should be unknown among judges, as they have chosen to have reasonably secure employment without any of the pressures of running a law practice. They can approach each case without a care in the world. Which side wins or loses should be of no concern whatsoever to the well-balanced judge.

But there are some pressures on judges, although they are pseudo-pressures, invented by people who care about time and motion efficiency. Judges are closely policed by such officials. It would be scandalous now, whereas I can remember when it was unremarkable, for a courtroom full of counsel, clients and their supporters, to wait until as much as an hour for a judge to return from a long wet lunch at the club. 

Judges are supposed, nowadays, to make rapid decisions in the summary jurisdiction. There will be some lawyers still in practise who can remember a judge in Auckland who, after hearing all the witnesses in summary cases, would spend 20 minutes or so sitting in silence at the bench, presumably mulling over the evidence, before delivering oral verdicts that almost invariably resulted in convictions. That judge, like nearly all judges, was a thoroughly decent person, and no one would have thought of complaining about such a leisurely approach to judicial work.

Now, judges are supposed to engage in “case management”. This is an invention of time-and-motion experts who apparently had little appreciation of the importance of judicial disengagement with trial preparation. Accompanying this is an unrealistic expectation that each side of a criminal case will cooperate with the other to achieve efficient disposal of a case, as if it were a civil matter.

We didn’t used to have disclosure requirements (except for notice of alibi), and defence counsel would not expect to be given any information about the conduct of the preceeding investigation. All that could come out in voir dire hearings, which, if they were used at all, occurred during trials. But now there seems to be immense fear of inconveniencing juries by sending them out of courtrooms while voir dire hearings, which can be quite lengthy, are held. Such hearings are now usually held before trials, and are scheduled in separate case management hearings. Case management tends to generate multiple pre-trial hearings, as judges are now expected to care about whether a defendant pleads guilty before trial so that trial schedules are not disrupted by unexpected guilty pleas.

Defendants are given incentives to plead guilty before trials. Aside from jeopardising counsel’s income, pre-trial guilty pleas presuppose adequate disclosure of information about the way evidence was obtained, and encouragment of such pleas is assumed not to place improper pressure on innocent people to plead guilty. That presupposition and that assumption are quite unrealistic.

With lengthy lists of cases awaiting trial, pressures on judges to place pragmatism above careful conduct of trials according to law, can result in case management becoming case mismanagement.

A reminder of the need to lawfully conduct case management of trials is given by the Supreme Court of Canada in R v Haevischer, 2023 SCC 11. I do not suggest that any of the thoughts I have set out above reflect what actually happened in this case, but it does illustrate an incorrect approach to a refusal in case management to set down a defence application for a stay of proceedings prior to trial. A refusal to do that is only lawful if the application is, in Canadian law, “manifestly frivolous”. The Court, in a unanimous judgment, explains in detail what that threshold means. Every judge who works in the criminal jurisdiction should study this judgment.

Statutory delay of parole eligibility: Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14

The life of a criminal barrister has several sources of irritation.

One is the difficulty of getting clients to see the marvelous subtlety of the logic of the criminal law.

For example, “If you plead guilty you will get a reduced sentence” is not the same as, “You get a longer sentence for not pleading guilty”. You do get a longer sentence, but only because it is the sentence that fits the crime and any mitigating factors you point to will not include a guilty plea.

Yes, but …

Another irritant is having to explain for the millionth time the difference between a sentence of imprisonment and an eligibility for release. Why, for example, a person sentence to a richly-deserved 10 years’ imprisonment [1] may be released after, say, only one year. [2]

This distinction between the sentence and the release is particularly acute if the law on release is changed after a person is sentenced, so that initial calculations of time to be spent in prison have to be revised upwards. You can imaging how irksome this is for the prisoner, to whom it looks like an increased sentence.

The need to properly interpret such a change was the central issue in Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14 (19 April 2023). The answer looks easy now that we can read the judgment, but there were respectable arguments on both sides. Did the change in release eligibility amount to a retroactive penalty, and further, did it make it impossible for proper legal advice to have been given before the change?

A central consideration was a decision of the Grand Chamber of the Eurpoean Court of Human Rights, Del Río Prada v Spain (Application No 42750/09) (2014) 58 EHRR 37. Pursuant to that decision, the imposition of a sentence could be taken to include the administrative rules as to release. It is not always easy, as European decisions illustrate, to distinguish between measures concerning the imposition of a sentence and measures concerned with its execution or enforcement. In Del Río Prada the distinction was recognised and endorsed, and the same distinction had been made in the relevant domestic law (see Morgan at [83] ff) but the Spanish law interpreted in Del Río Prada was distinguishable (at [94]).

And on the foreseeability of the law point, there was authority for the proposition that measures relating to the execution or enforcement of a sentence do not need to be foreseeable (at [100]). As noted at [103], the Court in Del Río Prada had said that foresight of a change in a penalty is to be assessed in the context that “the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States”.

Any barrister who has to explain to a client why an increase in the period that has to be spent in prison is not the same as an increase in the sentence can hand over the judgment in Morgan. And any advice on when release can be expected can always be given with the caveat that the law on release might change.

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[1] Another source of irritation is having to use all those fucking apostrophes when specifying periods of sentences such as imprisonment.

[2] On good behaviour and without a judicially-imposed minimum term, a successful application for release on parole after serving one-third of the sentence can be expected, with any actual period in custody prior to being sentenced taken into account as time served. In the example I have suggested, the prisoner was most fortunate to have been refused bail from the outset and so to have spent a couple of years in pre-sentence custody. In any event, release on parole comes with conditions and there is potential for recall to prison to continue serving the sentence until it expires. This applies to so-called long-term sentences, which are usually defined as being more than two years’ imprisonment. Shorter sentences of imprisonment commonly have no parole date but release is usually when half the term has been served. Consult your local laws.