The Arnold Solution

I ask, just for fun, whether you have read Thurman Arnold’s “The Role of Substantive Law and Procedure in the Legal Process”. It is available courtesy of the Yale Law School’s Faculty Scholarship Series, here, and will also be found in 45 Harvard Law Review 617 (February, 1932). Yes, 1932.

He uses “procedure” in a special sense, rather than its classification as found in the law school curriculum (p 647, fn 44). Also used in a special sense is “substantive law” which is the body of legal precedent that has been established and which has been accorded reverence because of its attributes and those recognised in the legal system, and by society, attaching to courts. Substantive law concerns principles, whereas procedure is entirely practical. Procedure is not tradition-bound but changes in the light of practical requirements. Whereas substantive law may be restated, procedure can be reformed. The difference is only in attitude, “any doctrine may be treated as procedure and the problem discussed, or as substantive law and the principle stated” (p 643).

Given these special definitions of substantive law and procedure it is plain that Arnold is not talking about what we would call substantive law and procedure. So, what is he saying?

His fear is that the multiplication of precedents through increased reporting of cases will reduce the law to confusion and chaos. The way to avoid this, he says, is to reduce access to appeals. The English did this, he further says, in criminal law by requiring that a miscarriage of justice had to be “substantial” before an appeal against conviction would be allowed. This was a barrier which discouraged appeals and minimised disruption to the established body of precedent. (p 638)

“It is this ability of the English to keep an ideal from too close contact with reality which explains the prestige which they are able to throw around their institutions.” (p 640)

He quotes, at p 639 fn 29, the then hot-off-the-press Goodhart, Essays in Jurisprudence and the Common Law (1931) at 57:

“Perhaps the reason why the English Lawyer is not dissatisfied with the present system is that the 'myriad' precedents do not exist. The English cases to 1865 are reprinted in the English Reports in about 175 volumes. The semi-official Law Reports from 1865 to the present date occupy about 450 volumes. Thus 625 volumes make up a complete working library."

Wonderful times indeed, not that I personally remember them. But how different is it today?

The point is not the number of volumes in which the law can be printed, but the ease with which the law can be ascertained. It hardly matters how many millions of precedents there are, if the relevant ones can be obtained from an electronic database almost instantly. Present problems are around applying acquired legal skills to honing down electronic search results to bring into focus the cases that are truly relevant, and keeping those to a minimum. A concentration on cases that have been cited and discussed in recent decisions should assist this focusing process. So instead of having 625 volumes on the shelves, a practitioner need only have a few leading textbooks and a subscription to an appropriate electronic database.

But Arnold, if he were here today, might still be concerned about what is happening, behind the electronics, to the law itself. Is it becoming uncertain because of confusion arising from what is, in effect, the use of legal principles as if they were rules. Multiplication of exceptions and additions of refinements could be moving the fundamentals in a way which makes them less venerable and worthy of the reverence that has, he would say, attached to the law and the courts. Would it be practical to counter this by restricting arguments about the application of precedent to trial courts, and only allow cases that require discussion of principles to go to the appeal courts?

This points to the real question, whether there is something that needs to be countered. Has the digital revolution saved the law from the Arnold solution? 

Proving propensity

Propensity evidence is evidence about the defendant’s conduct, not directly connected to the presently alleged offending, but which shows a propensity to act in a way that is relevant to an issue now before the court. To what, if any, standard must propensity be proved before it can be used in the process of determining the facts on the present allegation?

The United Kingdom Supreme Court has held that propensity must be proved beyond reasonable doubt before it can be taken into account in fact-finding: R v Mitchell (Northern Ireland) [2016] UKSC 55 (19 October 2016).

The Court noted that the common law had not settled this question, and legislation only covered admissibility, not standard of proof.

New Zealand common law has taken the position, almost as a mere assumption, that no particular standard of proof of propensity is required, but that instead admissible evidence of propensity is just circumstantial evidence that can be considered with all the other evidence in determining guilt on the present charge. For example, see R v Guy (1996) 13 CRNZ 589 (CA). And if the defendant had been previously charged with offending that would be evidence of a relevant propensity, but had been acquitted, evidence of the facts supporting that earlier allegation can, notwithstanding the acquittal, be given to prove the propensity: R v Degnan [2001] 1 NZLR 280, (2000) 18 CRNZ 319 (CA).

Is there necessarily an inconsistency here with Mitchell? That case only requires the propensity, not the evidence of it, to be proved beyond reasonable doubt. Its effect is that the method for determining facts if propensity evidence is relied on is to consider all the admissible evidence of propensity, to assess it and to decide whether propensity is proved beyond reasonable doubt. If it is, then it may be taken into account with the evidence of the present allegation. If it is not proved to that standard it must be ignored. It is not mixed with the other evidence in the case when the fact-finder is deciding whether there is a propensity.

This is inconsistent with the New Zealand approach. See for example R v Holtz [2003] 1 NZLR 667, (2002) 20 CRNZ 14 (CA), discussed here on 14 October 2004, where no standard of proof is required except for an ultimate conclusion of guilt. It is sufficient (at [39]) that the fact-finder “conclude” or be “satisfied” that the evidence of propensity establishes the relevant propensity. There the Court “rejected a general requirement that pattern or the like must be found beyond reasonable doubt before similar fact evidence may be used”.

The Mitchell rule requires the fact-finder to ignore evidence that is in reality highly probative. The judicial consideration of a variety of solutions to this problem in HML v The Queen [2008] HCA 16 (discussed here on 26 April 2008) was not mentioned in Mitchell. In Mohammed v R [2011] NZSC 52, [2011] 3 NZLR 145, (2011) 25 CRNZ 223 (discussed here) the focus was on other aspects of how juries should be directed on propensity evidence, so this point may still be open.

Update: On 26 November 2018 the New Zealand Supreme Court refused leave to appeal on a challenge to the absence of a requirement for proof of propensity to the beyond reasonable doubt standard, holding that, despite the different approaches in the United Kingdom and Australia, the law in New Zealand had taken a different course and was now settled: Grooby v R [2018] NZSC 114.

Error and injustice

In Booth v R [2016] NZSC 127 the Court changed the interpretation of the Parole Act 2002 to make some prisoners eligible for release earlier than they had been under the law as it had been understood and applied.

The Court did not decide whether any prisoners should get compensation.

When considering whether compensation should be given, there are several categories of prisoners to look at:

1.      .     Some prisoners were released the day after Booth was decided.
2.      .     Others will be released as soon as inspection of their files reveals that they should be released under Booth.
3.      .    Other prisoners will have their release dates re-calculated in compliance with Booth.
4.      .    And some prisoners have served their sentences under the law as it had previously been understood to have been, but if Booth had been applied to them they would have been released earlier.

Plainly, category 3 prisoners will be released on their correctly calculated dates and will not have been imprisoned longer than the law now permits. Compensation is not an issue for them.

Compensation is a live issue for category 2 prisoners whose release is delayed because of the time needed to ascertain their eligibility for release under Booth.

Less obvious, but still in my view fairly clear, is the position of prisoners in categories 1 and 4. These prisoners have all been in custody for longer periods that the law under Booth allows. But were they unlawfully detained? They were detained in compliance with the law as it had been understood to have been under a Court of Appeal decision (Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).) That case was not appealed (an appeal would have had to go to the Privy Council) and it was a long-standing precedent.

Does a change in the interpretation of legislation have retrospective effect? Courts have an inherent power to limit the retrospective effect of their decisions: Cadder v HM Advocate (Scotland) [2010] UKSC 43 at [58]. In Jogee and Ruddock v R [2016] UKSC 8 at [100] the principle of finality in litigation was referred to in the context of (what may be seen as more fundamental) the issue of convictions obtained under law which was subsequently held to have been wrongly understood:

“ … where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years.”

And in the same paragraph the Court added:

“Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:

“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

It is not the change in law that is the decisive point, but it is whether an exceptional substantive injustice can be demonstrated by a prisoner whose sentence was served under the old understanding of the law. Here the exceptional and substantive injustice is the detaining of prisoners in the Booth category for longer than they should have been as a result of not counting all their time on remand as part of the sentence served. Those who were released on parole at the earliest opportunity have therefore been detained for longer than was lawful because a proper allowance for time served was not made when calculating their parole eligibility dates. Similarly, those who were not released on parole but who had to serve their sentences until their statutory release dates were detained for longer than they should have been if the miscalculation of credit for time spent on remand meant that their statutory release dates were later than they should have been. It can not matter for this seriousness of impropriety that the unlawfulness was only recently discovered: the fact that the officials were obeying the misconceived understanding of the law is irrelevant.

That seems to me to be the legal answer. The policy answer will depend on the weight to be given to finality in litigation as against the need to ensure that those who enforce the law obey the law, particularly in relation to people - prisoners - who are otherwise without remedy against institutional abuse of power. Their vulnerability became entrenched at a time when the final appeal court - the Privy Council - was, as a matter of practicality, out of their reach. I think the policy answer will be consistent with the legal answer, that retrospective effect of Booth will be acknowledged, and that compensation should be paid. There will still be arguments about whether compensation can be given without discriminating in favour of those prisoners whose offences did not have victims, because of the Prisoners' and Victims' Claims Act 2005.

Update: On 18 December 2017 the Court of Appeal, upholding the High Court, held that the decision in Booth, like the great majority of common law decisions, is retrospective in effect, and that the prisoners who had not been released on their correctly calculated dates were falsely imprisoned and were eligible for damages, and that an appropriate award for a recidivist prisoner who was not freshly traumatised by incarceration was in the range of $8,000 to $12,000 for one month's wrongful imprisonment: Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608.

Good to get that settled?

Ah yes, another report on the Bain case. I have added some comments to an earlier post (15 December 2012).

Extended common purpose - correcting the common law on secondary liability

Well, interweb, if I’m going to do a post this year I had better get on with it.

Extended secondary liability has received attention on this site before, on Dec 22, 2011, and Dec 18, 2006.

The Privy Council, in a judgment delivered jointly with the Supreme Court of the United Kingdom, has corrected a long-standing (30 years) error in the law of this form of liability: R v Jogee [2016] UKSC 8 (18 February 2016).

The change, reverting to what had been the correct position, is that a secondary party must always intend that the offence be committed. The error had happened when the Privy Council gave judgment in Chan Wing-Siu [1985] AC 168. The Board had held that under the extended form of secondary liability intention is not required, but instead only foresight that commission of the offence is a probable consequence of the prosecution of an unlawful common purpose.

This is explained extremely clearly by Francis FitzGibbon in the London Review of Books, Vol 38, No 5, 3 March 2016.

Embarrassingly, the blame for all this is attributed to the then Sir Robin Cooke (later, Lord Cooke), who delivered the Board’s judgment in Chan Wing-Siu. If one is to place the blame in that way, one must assume that the other members of that Board were asleep: Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook, and Lord Templeman. None of them tugged at Sir Robin’s sleeve and said “hang on a minute mate” (or whatever the equivalent English expression was).

From where did Sir Robin get his misunderstanding of the common law? As a New Zealand judge he would have been familiar with our s 66(2) of the Crimes Act 1961, which is the provision for this form of liability. An early interpretation of the (not materially different) predecessor of this - s 90(2) of the Crimes Act 1908 - was that the secondary party had to intend the commission of the foreseen offence: R v Malcolm [1951] NZLR 470, 485 line 33 (CA) where there is only a brief comment "Subsection 2 of s 90 requires a common purpose" [emphasis added]. However that was criticised in an influential textbook, Criminal Law and Practice in New Zealand (2^nd ed FB Adams, 1971) at para 664, where it was said that “the whole point of s 66(2) [is] that something is done which may have gone beyond the common primary purpose.”

So, contrary to Malcolm, s 66(2) has subsequently (at least) been understood to mean that the secondary participant need not intend the commission of the offence, but that only foresight of it as a probable consequence of pursuit of the common purpose is required.

Regardless of why the mistake may have been made and why it had gone unnoticed for decades, the common law is now that intention is required. Foresight of a risk is evidence of intention, not a substitute for it. Can a provision like s 66(2) be interpreted consistently with that? I think it can. A “common intention to prosecute any unlawful purpose, and to assist each other therein” refers to a range of intended offences. Otherwise, the subsection would have said “common intention to commit an offence”. The phrase “known to be a probable consequence of the prosecution of the common purpose” functions to keep liability within the bounds of what was intended.

[Update: The Supreme Court has declined to modify the interpretation of s 66(2) to bring it into line with Jogee: Uhrle v R [2016] NZSC 64 (13 June 2016).]

[Another update: The High Court of Australia has refused to revise the common law insofar as it applies in Australian jurisdictions, and will not bring it into line with Jogee: Miller v The Queen [2016] HCA 30 (24 August 2016).]

Decision models for the stay of criminal proceedings

Legal terminology at common law can change over time.

For example, exclusion of improperly obtained evidence is decided by what used to be called a discretion, but which is now called an application of judgement as a matter of law. The difference between exercises of judgement and exercises of discretions is not always easy to see. Bail decisions are currently called discretionary, but who knows whether they might come to be called exercises of judgement?

The only practical difference is in how they are approached on appeal. This difference has arisen because, during the latter part of the twentieth century, the common law developed powers of review, applicable to all decisions affecting people’s legal interests including decisions of judges in lower courts.

On review, the correctness of the method applied by the decision-maker is determined, and this involves looking to see whether certain kinds of errors occurred. These errors are: erroneous application of principle, wrongly taking into account irrelevant matters, not taking into account relevant matters, or being plainly wrong. If one or more of those errors occurred the review court will usually remit the issue back for determination in the correct way, and only occasionally will the review court be in a position to make the determination itself. The review court acknowledges the advantages that the decision-maker had in seeing and hearing witnesses, or in having special expertise in the relevant subject.

Review applies to discretionary decisions. What is usually called “general appeal” applies to exercises of judgement. On a general appeal the court will, if it finds that an error occurred, apply its own view of the appropriate outcome. There has to be a demonstrable error, and this is called the error principle. On general appeal the court can hear evidence if necessary, but usually the evidence taken in the court below is sufficient.

There will obviously be overlap between errors that qualify to come within the error principle and errors that qualify for purposes of review. Nevertheless, as the law currently is, the difference in the form of proceedings can lead to very different outcomes resulting from the same sort of errors. This makes the classification of a decision as either discretionary (review) or a matter of judgement (general appeal) rather important.

The point I am making from all this is that the common law can create distinctions which are difficult to apply and yet which have serious implications as to outcome.

The decision to exclude improperly obtained evidence (now a matter of judgement but it used to be a discretion) had developed at common law but is now, in New Zealand, governed by statute and therefore will be elaborated in case law. By “case law” I mean judicial interpretation of legislation, as opposed to common law which is entirely judge-made. There are other ways of using the term common law, but that is what I mean. The admissibility of improperly obtained evidence is determined by applying a relatively clear decision model. I mean that the model is clear, even if the result of its application in individual cases may not be easy to predict. This model is a balancing of factors favouring admission against factors favouring exclusion, the result being assessed in terms of the need for an effective and credible criminal justice system. This need could be imagined as a sort of scale to indicate the consequences of where the balance has come to rest.

That model, or method for making the decision, is conceptually clear, although only lawyers and judges and people who have made a study of the subject are likely to have sufficient knowledge of the case law to understand what the balancing factors are and how the scale distinguishes between admissible and inadmissible evidence by using precedent to establish markers for future reference.

But, significantly for what I will say below, the factors favouring admission of improperly obtained evidence are dominated by the seriousness of the alleged offending in the particular case. Therefore it is important to have a clear way of deciding what is a serious offence. At common law the criterion was that the starting point for sentencing would be in the region of four years’ imprisonment. Subsequent case law has followed that, but in 2011 some doubt was cast on that in the Supreme Court, arising from a different view expressed by at least one judge with probably some support from one other, although the decision of the Court does not seem to have been intended to make a change that would require overruling a large number of decided cases. That different view was that seriousness should be measured by the maximum penalty for an offence.

Over the last few years in New Zealand the courts have been particularly concerned with how to decide whether to stay criminal proceedings. One difficulty that seems to have been avoided is deciding whether a decision to stay is discretionary or a matter of judgement. It seems to be the latter, although before the difference in terminology emerged the cases may well have called it discretionary. But what is the model for making the decision?

There is no statutory guidance on this. It is purely a common law matter. In Wilson v R [2015] NZSC 189 (14 December 2015) the model devised in England was used. Unfortunately this law uses the term “discretion” in an historical sense from before the review powers developed to the extent that they have, so that discretion here means an exercise of judgement:

“[51] ... a judge considering a stay application was required to weigh the countervailing considerations of policy and justice and then to decide in the exercise of his or her discretion whether there has been an abuse of process ‘which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.’” [footnotes omitted, here and in the extracts quoted below]

Blanch though we may at the “his or her”, it looks as though this reference to public conscience is to a scale, of the sort I mentioned above in relation to improperly obtained evidence. Countervailing considerations are weighed against this scale.

Important among the balancing factors:

“[54] ... the gravity of the alleged offence was a factor of ‘considerable weight’ for a court undertaking the balancing process to determine whether to stay proceedings on abuse of process grounds.”

And, of great interest in clearing up any confusion over how to assess the seriousness of the alleged offending, it is the starting point for sentencing, not the maximum penalty, that is relevant. This follows from, as it turns out, the majority’s resort to what was really the model applicable to the admissibility of improperly obtained evidence, and their description of the offending here as “moderately serious” [92(a)] although it included supply of LSD (maximum life imprisonment).

Unfortunately the model for deciding stays was significantly muddled by reliance on the following common law dictum:

“[54] ... ‘The central question for the court in all these cases is as to where the balance lies between the competing public interests in play: the public interests in identifying criminal responsibility and convicting and punishing the guilty on the one hand and the public interest in the rule of law and the integrity of the criminal justice system on the other. Which of these interests is to prevail?’”

The majority judgment in Wilson concluded on this:

“[60] ... when considering whether or not to grant a stay in a second category case [that is, one where the fairness of the trial is not in issue], the court will have to weigh the public interest in maintaining the integrity of the justice system against the public interest in having those accused of offending stand trial. In weighing those competing public interests, the court will have to consider the particular circumstances of the case. While not exhaustive, factors such as those listed in s 30(3) of the Evidence Act will be relevant, including whether there are any alternative remedies which will be sufficient to dissociate the justice system from the impugned conduct. In some instances, the misconduct by the state agency will be so grave that it will be largely determinative of the outcome, with the result that the balancing process will be attenuated. The court’s assessment must be conducted against the background that a stay in a second category case is an extreme remedy which will only be given in the clearest of cases.”

This has changed what should have been the scale into a balancing factor. Plainly the integrity of the criminal justice system should be an absolute requirement, not something that can be traded away in the interests of prosecuting serious crime.

Once that is accepted it follows that the model that should be used here is not the sort of balancing where two competing interests are measured against a scale, but instead it is a movement along a single scale of magnitude, going one way or the other and reaching a resting point on that scale. It is like a thermometer, not a balance. It isn’t really weighing anything, just measuring the intensity of the wrongful conduct of officials and seeing if that reaches a point where the integrity of the criminal justice system is compromised.

I think the Chief Justice was right (dissenting on whether a stay should have been ordered but agreeing in the result of the appeal), to emphasise, uncontroversially,

“[121] ... the critical question is not the strength of the prosecution evidence or the weakness of the defence, but the effect of the defect on the legitimacy of the trial.

...

“[123] ... the critical issue ... was whether the trial could be legitimate given the serious irregularity.”

However she did not distance herself to any marked extent from describing the decision model as one of balancing, and instead retreated from clarity by adopting a rather flaccid dictum:

“[133] ... general guidance on how the jurisdiction is to be exercised is not useful when ‘an infinite variety of cases could arise’.”

Decision models are designed to deal with an infinite variety of cases. Overall the issue of whether a stay should have been ordered in this case, which seems to conclude the Antonievic saga, came down to a vote count, without much clarity being given for future guidance. The majority’s application of the law to the appeal is really a retreat to the issue whether exclusion of the evidence was appropriate (using the conventional balancing exercise applicable to that decision) and then a recognition that the impropriety here did not go beyond what could appropriately be remedied by exclusion of some of the evidence.

So, to return to my theme of how the common law terminology and methods can change over time, a decision to stay criminal proceedings is no longer appropriately described as discretionary, but is a matter of judgement. On appeal the court will come to its own view of what should have been done. The decision model is currently that of weighing, but, I suggest, it should ultimately develop into a measure of the intensity of wrongdoing by officials to determine whether it affects the integrity of the criminal justice system. It is a different model from that applicable to improperly obtained evidence, and it should only apply if exclusion of tainted evidence is inadequate to protect the integrity of the criminal justice system. Where the wrongdoing colours the obtaining of evidence, the first decision will be the balancing required to determine the admissibility of that evidence, and then, if the wrongdoing was particularly bad it should be assessed for its impact on the integrity of the judicial proceedings. As has long been recognised, the position is different if the wrongdoing affects the fairness of a trial adversely to a defendant, for then a stay must be ordered.

Hardcopy edition of Misuse of Drugs

My textbook Misuse of Drugs will be published by Thomson Reuters NZ Ltd on 11 December in a new hardcopy edition. Orders may be made here.

Criminal Procedure in New Zealand, 2nd ed 2015

The second edition (hardcopy) of the criminal procedure text by Professor Finn and me will be available from 23 October, and may be ordered from Thomson Reuters NZ Ltd. Electronic formats, updated quarterly, are also available by subscription.

Life, and the meaning of Proust

“In Search of Lost Time” – what does that mean? It is the search for happiness, for the connection between past happiness and the state of being in the present which allows us to exist outside time and to enjoy the essence of things. It is the search for that which is common to the past and the present and which is more essential than both because it energises the desire to live.

“let a sound, a scent already heard and breathed in the past be heard and breathed anew, simultaneously in the present and in the past, real without being actual, ideal without being abstract, then instantly the permanent and characteristic essence hidden in things is freed and our true being which has for long seemed dead but was not so in other ways awakes and revives, thanks to this celestial nourishment.”

Although the book has strong themes of unequal love, of jealousy, hatred and disgust, of death and grief, there is also an irrepressible happiness. The point is that, although time will eventually drag us all down, it is only the extent to which our spirit has soared with the joy of life that really matters.

Proust posting 3: On human nature

Contemplation of human nature calls to mind the relationship between what we think and what we do. Proust found human nature endlessly (yes) interesting. Here, among his observations, are my favourites:

A. Our place in society

Everyone has their place:

“ “Oriane,” (at once Mme. des Laumes looked with amused astonishment towards an invisible third, whom she seemed to call to witness that she had never authorised Mme. de Gallardon to use her Christian name).”

And we want to be superior:

“she never gets a chance of being a snob; she doesn’t know anyone.”

We mark our superiority politely:

“She treated each of them with that charming courtesy with which well-bred people treat their inferiors ...”

“... “But you are our equal, if not our superior,” the Guermantes seemed, in all their actions, to be saying; and they said it in the most courteous fashion imaginable, to be loved, admired, but not to be believed; that one should discern the fictitious character of this affability was what they called being well-bred; to suppose it to be genuine, a sign of ill-breeding. ...”

“... they are naturally polite to anybody, as beautiful women are glad to bestow a smile which they know to be so joyfully received. ...”

“... he was sufficiently persuaded of his own importance to be able to mix with the very humblest people.”

B. Our relationships

We get over people:

“Nothing can be more affectionate than this sort of correspondence between friends who do not wish to see one another any more.”

We disconnect mutually:

“... the fiction of a mutual incognito, on hearing her friend’s name from the manager she merely looked the other way, and pretended not to see Mme. de Villeparisis, who, realising that my grandmother did not want to be recognised, looked also into the void.”

We try to impress:

“ “In fact, it was drolatic,” put in M. de Guermantes, whose odd vocabulary enabled people in society to declare that he was no fool and literary people, at the same time, to regard him as a complete imbecile.”

Aggressively we try to deflect criticism:

“... people against whom certain things may be hinted like to shew that they are not afraid to mention them.”

Gaydar alert!

“There is a special kind of glance, apparently of recognition, which a young man never receives from certain women — nor from certain men — after the day on which they have made his acquaintance and have learned that he is the friend of people with whom they too are intimate.”

C. Our own natures

I’m nasty, but funny with it:

“... it’s often difficult not to be a little spiteful when one is so full of wit ...”

“... “Mme. Verdurin, why, I used to know her terribly well!” with an affectation of humility, like a great lady who tells you that she has taken the tram.”

Stress can reveal us as essentially silly:

“... an exclamation the silliness of which kept him from sleeping for at least a week afterwards. His remark was of no great interest, but I remembered it as a proof that sometimes in this life, under the stress of an exceptional emotion, people do say what is in their minds.”

Meaning can get lost when one has to be polite:

“... she answered as she did, in order not to seem to be unaware of what I meant, as in a conversation one assumes an understanding air when somebody talks of Fourrier or of Tobolsk without even knowing what these names mean. ...”

“... the sterile pleasure of a social contact which excludes all penetrating thought”

Our errors compound:

“... the ill-balanced mentality of early manhood (a period in which, even in the middle class, one appears ungrateful and behaves like a cad because, having forgotten for months to write to a benefactor after he has lost his wife, one then ceases to nod to him in the street so as to simplify matters),...”

We can have a self-perpetuating insecurity:

“But he was so anxious not to let it be seen that he was not sought after, that he dared not offer himself. ...”

“... “You don’t happen to know what you will be doing in the next few days, because I shall probably be somewhere in the neighbourhood of Balbec? Not that it makes the slightest difference, I just thought I would ask you.” This air deceived nobody, and the inverse signs whereby we express our sentiments by their opposites are so clearly legible that we ask ourselves how there can still be people who say, for instance: “I have so many invitations that I don’t know where to lay my head” to conceal the fact that they have been invited nowhere.”

We can try to wound with silence:

“M. de Charlus made no reply and looked as if he had not heard, which was one of his favourite forms of insolence.”

We like to be noticed:

“ “You are the talk of the Conservatoire,” she added, feeling that this was the argument that carried most weight; ...”

Our attacks are justified:

“People are not always very tolerant of the tears which they themselves have provoked.”

We must make an effort to be social:

“... said the Duchess, making an effort in order to speak of a matter which did not interest her.”

The children must get established:

“... the great receptions given by Mme. de Marsantes and Mme. de Forcheville, given year after year with an eye chiefly to the establishment, upon a brilliant footing, of their children, ...”

There are times when we must appear decent:

“... he assumed the modest air of one who is not asking for payment.”

Proust on how to write a great big book

Continuing from last time ... Twelve tips from the master:

1. All this writing and just one book?

“I explained to Albertine that the great men of letters have never created more than a single work ...”

2. The grind gets it done:

“it is not the desire to become famous but the habit of being laborious that enables us to produce a finished work ...”

3. The effort can even be tiring:

“Perhaps some of the greatest masterpieces were written yawning.”

4. Don’t admit to being unoriginal:

“In this book ... there is not a single event which is not fictitious, in which there is not a single personage “a clef”, where I have invented everything to suit the requirements of my presentation ...”

5. Just because I use the first person, doesn’t mean it’s me!

“As soon as she was able to speak she said: “My ——-” or “My dearest ——” followed by my Christian name, which, if we give the narrator the same name as the author of this book, would be ‘My Marcel,’ or ‘My dearest Marcel.’”

6. It’s really about YOU:

“every reader, as he reads, is the reader of himself.”

7. Obsessive writer, obsessive reader:

“the writer, in creating each character, would have to present it from conflicting standpoints so that his book should have solidity, he would have to prepare it with meticulous care, perpetually regrouping his forces as for an offensive, to bear it as a load, to accept it as the object of his life, to build it like a church, to follow it like a régime, to overcome it like an obstacle, to win it like a friendship, to nourish it like a child, to create it like a world, mindful of those mysteries which probably only have their explanation in other worlds, the presentiment of which moves us most in life and in art.”

8. Don’t be preachy-preachy – or at least don’t admit to it:

“that vulgar temptation of an author to write intellectual works. A great indelicacy. A work in which there are theories is like an object upon which the price is marked.”

9. They won’t understand!

“I was soon able to show an outline of my project. No one understood it.”

10. Be your own favourite author:

“I read the article [that I had written] forcing myself to imagine that it was written by some one else. Then all my images, all my reflexions, all my epithets taken by themselves and without the memory of the check which they had given to my intentions, charmed me by their brilliance, their amplitude, their depth.”

11. Just reveal the great universal laws of human nature:

“It is the feeling for the general in the potential writer, which selects material suitable to a work of art because of its generality. He only pays attention to others, however dull and tiresome, because in repeating what their kind say like parrots, they are for that very reason prophetic birds, spokesmen of a psychological law. He recalls only what is general.”

12. And remember, for the publisher it’s all about the money:

“the impenetrable solidity of certain commercial houses, booksellers’ for example or printing presses, where the wretched author will never succeed, notwithstanding the diversity of the persons employed in them, in discovering whether he is being swindled or not.”

Marcel the joker

In search of lost laughs

I have just finished reading Proust’s “In search of lost time”, in the translation by CK Scott Moncrieff (vol 1-6) and Sydney Schiff (vol 7), Centaur Editions, available on Kindle.

Literary types argue over the merits of this translation, and it has been contended that it is better than the original French – a mischievous wit suggested that, if so, it should be translated back into French.

Proust could have fun:

... he began once more to cough and expectorate over me. “Don’t tire yourself by trying to speak,” I said to him with an air of kindly interest, which was feigned.

... he said of one of M. Verdurin’s footmen: “Isn’t he the Baron’s mistress?”

“... You must know far more than I do, M. de Charlus, about getting hold of sailors.”

... his stock of Latin quotations was extremely limited, albeit sufficient to astound his pupils.

... he had that detailed knowledge of Paris only to be found in people who seldom go there.

She looked like an exhausted swimmer far from shore who painfully manages to keep her head above the waves of time which were submerging her.

... the Duchesse de Guermantes’ cheeks which had remained remarkably unchanged though they now seemed compounded of nougat ...

His formerly brick-red skin had become gravely pale; silver hair, slight stoutness, Doge-like dignity and a chronic fatigue which gave him a constant longing for sleep, combined to produce a new and impressive majesty.

Somebody mentioned a name and I was stupefied to know it applied at one and the same time to my former blonde dance-partner and to the stout elderly lady who moved ponderously past me.

... the Princesse de Guermantes’ locks, when they were grey, had the brilliance of silvery silk round her protuberant brow but now having determined to become white seemed to be made of wool and stuffing and resembled soiled snow.

He declared that I had not changed by which I grasped that he did not think he had.

... for three years she had been taking cocaine and other drugs. Her eyes deeply and darkly rimmed were haggard, her mouth had a strange twitch.

“You took me for my mother,” Gilberte had said and it was true. For that matter it was a compliment to the daughter.

For this American woman, dinner-parties and social functions were a sort of Berlitz school. She repeated names she heard without any knowledge of their significance.

So people said: “You’ve forgotten. So and so is dead,” as they might have said: “He’s decorated, he’s a member of the Academy,” or — which came to the same thing as it prevented his coming to parties — “he has gone to spend the winter in the south ” ...

Hearing that Mme d’Arpajon was really dead, the old maid cast an alarmed glance at her mother fearing that the news of the death of one of her contemporaries might be a shock to her; she imagined in anticipation people alluding to her own mother’s death by explaining that “she died as the result of a shock through the death of Mme d’Arpajon.” But on the contrary, her mother’s expression was that of having won a competition against formidable rivals whenever anyone of her own age passed away.

Messing with LCN DNA

The delights of Bayesian probability reasoning are sufficient to draw from me another case comment!

Our Court of Appeal, in Manoharan v R [2015] NZCA 237 (11 June 2015), has said that a likelihood ratio of 20 (meaning 20 to 1, or in context, 20 times more likely under the prosecutor's hypothesis than under the defendant's) is “not strong” [52].

This was an LCN DNA analysis and obviously compared to the usual DNA results of likelihood ratios in the many millions, 20 is not high. But in the context of a case it can be, as can be seen from the results of applying Bayes’ Theorem (this was a single-issue case involving independent items of evidence).

I should emphasise that the single-issue nature of this case ("who did it?", an actus reus issue) simplifies the use of Bayes' theorem. Where several elements of the offence charged are in issue, the theorem must be applied to each separately, and only evidence relevant to that issue is used in each application. This prevents, for example, a huge scientific LR on the issue of identity from swamping the issue of intention. For each issue the "probability of guilt" means the probability that that issue is proved to the standard required for it to be established.

The likelihood ratio used by the scientists in declaring a match is not necessarily the same as the likelihood ratio for the activity evidence used by the fact-finder in the trial. This is because the defence may have an innocent explanation for the match which brings the denominator of the likelihood ratio (the probability of getting the match on the assumption that the defendant is innocent) close to the value of the numerator. Then, the probative value of the test result for the prosecutor would be very reduced or even extinguished.

We can compare what the probability of guilt would have been if the scientific LR had been in the millions and the trial LR numerator approximately 1, with what the probability of guilt would be under the revised scientific LR and corresponding new trial LR, for priors-in-combination (by which I mean, the ratio of probability of guilt to probability of innocence, based on all the other evidence in the case and the starting assumption about the probability of guilt and the probability of innocence, for this single-issue case) of various levels. (For multi-issue cases the priors will be assessed separately for each issue.)

A perspective on the size of a LR of 20 is obtained from considering a case where the evidence is not given, compared to one where it is.

• If, without the evidence, the probability of guilt is 0.90, then with the evidence that probability increases to 0.99.

• If, without the evidence, the probability of guilt is 0.60, then with the evidence that probability increases to 0.96.

• And, if, without the evidence, the probability of guilt is 0.30, then with the evidence that probability increases to 0.89.

These 3 examples show that evidence with LR = 20 can have strong probative value.

Perhaps the Court under-emphasised the strength of the DNA evidence in this case. It approved defence counsel’s submission that the jury should have been told that in New Zealand it was likely that there are 200,000 people who would have the same profile. The fallacy is to include people who had no opportunity to commit the crime.

Update: on 28 October 2015 the Supreme Court refused leave to appeal: Manoharan v R [2015] NZSC 156. The Court could see no basis to indicate that the Court of Appeal had been wrong when it had held that there had been no miscarriage of justice.

Another update: Bernard Robertson has commented on this case in"Likelihood ratios in evidence" [2016] New Zealand Law Journal 22. He points out that the Court at [39] correctly describes the witness's evidence as stating a likelihood ratio, but earlier in the judgment, at [17], it had transposed the conditional when referring to the same evidence. Mr Robertson also points out that the "20 times more likely" assertion should have been clarified because juries will not know what to do with a likelihood ratio, and that in this case source level propositions (where the sample at the scene came from) were mixed with activity level propositions (how it got there).

Search seminar

Notes for the talk on the law of search that I gave at the Auckland District Court on 1 July are available here. They are complementary to the more detailed paper that has been distributed to lawyers, and now is available here.

Proportionality and the Rule of Law

As you know – although I’m sure you wouldn’t admit it in front of your drinking buddies – there are few more enjoyable ways of spending a wet Queen’s Birthday holiday weekend than by struggling to understand a book written in technical language that you feel you should understand.

So it is with Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP, 2014), a collection of essays by 18 contributors, edited by Grant Huscroft, Bradley W Miller, and Grégoire Webber.

I can only speak of the Introduction, as the book is rather expensive, and even the ebook seems over-priced. At least Amazon gives us a free sample, which includes the very excellent (as opposed to sort-of excellent?) Introduction by the editors.

So my little game, if you think of it like that, is to translate into ordinary lawyers’ English the technical language of the Introduction. But beware of the risk that I do this with a clarity born of misunderstanding.

“Proportionality” has a range of meanings and can refer to a method or to a goal of decision-making. I wouldn’t want to confuse it with other kinds of decision-making, such as logic, formalism (the application of rules to facts), morality (what would be the morally right decision), pragmatism (what result would work), although there can be some overlap.

Balancing of competing values is a proportionality method of decision-making. So is the rather different ends/means balancing, but this can be seen as a method or as a goal. Using reasonableness to limit what is acceptable is also a proportionality method. Sometimes proportionality endangers rights, in balancing them against other values, and sometimes it compromises moral values, where what is right yields to a greater right or some greater interest.

What happens to rights in proportionality reasoning can vary. Rights are not necessarily eroded in the balancing process, which will usually recognise their enhanced weight by virtue of their status as rights, but if an issue of limitation is being considered then there is a risk of erosion if proportionality requires that.

Proportionality can require recognition of the autonomy and dignity of the person, and this may guide the interpretation of legislation. Legislators, however, may have a greater awareness of rights and social interests than do courts, so executive decisions should be judged by their method rather than their outcome. This concern would limit the role of proportionality reasoning. Indeed, it is arguable (although I am not convinced by this) that proportionality is too abstract a method to be of use to judges.

You could say that morality is important and that proportionality reasoning is not a complete method for judicial decision-making. There are risks attending proportionality reasoning: irrelevancies may be taken into account, things that are doubtful may be treated as certainties, a judge may yield too much to extraneous determinations, aspects of the public good may be ignored, and a judge may have resort to a personal political philosophy.

In their conclusion to the Introduction the editors ask some pertinent questions, which the essays apparently leave the reader to consider. I put these in my own words, sacrificing the subtleties. Does proportionality erode rights? What about absolute rights? Should judges take more account of the reasons that motivate enactments? Should legislators, rather than the courts, use proportionality reasoning? Where proportionality reasoning includes morality, does it prefer some moral theories over others? How should the dangers of proportionality reasoning by courts be overcome?

Well, it’s a shame that the book is so expensive. Too expensive to read. Hopefully my clumsy summary of its Introduction will make some of the essayists’ interesting ideas more accessible.

I doubt, therefore I am, but what are you?

In Seeing Things as They Are (OUP, 2015) John R Searle gives idealism a long-deserved slap. “There is something tragic about the massive waste of time involved in the whole tradition of idealism.” (P 93, footnote 10, if my Kindle app pagination is accurate.)

Idealism is that philosophy which claims that the only things we have perceptual access to are our own subjective experiences: all we can ever perceive are our own subjective impressions and ideas (Descartes, Berkeley, Hume), we can never have knowledge of things in themselves (Kant), we can only perceive sense data (Ayer). Searle’s position is that idealism leaves us with essentially an unbelievable conception of our relation to the world (p 231).

I am not able to review the book, [Update: here is a review by Josh Armstrong in the LA Review of Books.] but you may wish to view this YouTube clip of a seminar conducted by Searle which substantially overlaps the subject-matter of this book and gives a sense of the technical language generated by philosophical contemplation of perception.

Searle makes an interesting observation about El Greco and whether the painter had defective vision (p 141):

“The hypothesis ... that he painted distorted figures because a normal stimulus looks distorted to him makes no sense, because if he is reproducing on the canvas what produces distortions in him, then he will simply reproduce what looks normal to the rest of us.”

This has implications not mentioned by Searle but which will occur to lawyers. Would El Greco have described in words an obviously distorted image? Are errors in one mode of perception only apparent to other people when translated into a different mode of communication? If a witness describes what was seen, will that description necessarily correspond to the witness’s visual perception? How should a verbal description of what was seen be checked?

Judicial accounts of how facts are determined give no assurance of their correspondence with reality. As EW Thomas observes in The Judicial Process (CUP, 2005) at p 321, “The facts are the fount of individual justice” but there is scope for improvement in the ways they are determined. For example, there is too much weight placed on the demeanour of witnesses (324), and truth, as far as the system will permit “can be gleaned from a close reading of the contemporaneous documentation, if any, or an analysis of the probabilities intrinsic to the circumstances and about which there may be little or no dispute” (325).

As a senior appellate judge, Thomas cautions that

“what judges must not do is fill an unresolvable gap with a judicial ‘hunch’. To do so is to succumb in part to what I have perhaps unkindly labelled the ‘God Syndrome’. Anecdotal evidence suggests that the God Syndrome settles on some judges shortly after their appointment to the Bench ... [and] many appellate judgments would be edified if judges at that level did not show an unhealthy preparedness to adopt a version of the facts which cannot be found in the [trial] judge’s findings of fact or in the transcript of the evidence itself. ... The God Syndrome does not strike at first instance only.” (326)

The resort to assessment of probabilities to assist in determining facts is also referred to by Richard A Posner in How Judges Think (Harvard UP, 2008). He uses (65) Bayesian decision theory to illustrate how, before a witness even testifies, a judge will have formed an estimate that the testimony will be truthful, based on experience with witnesses in similar cases (including when the judge was a lawyer), on a general sense of the honesty of the class of persons to which the witness belongs, or even the way in which the witness enters court and approaches the witness box. It would, says Posner (67), be irrational for judges to purge themselves of this way of thinking.

And the sneakiness of some appellate judges does not escape Posner’s comment (144):

“   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.”

(I mention in passing – just to show that some judges do read each other’s books - that at 261 footnote 63 Posner cites Thomas’s book.)

Posner had also discussed the difficulties of ascertaining, from evidence given in the courtroom, the reality of what happened, in The Problems of Jurisprudence (Harvard UP, 1990), particularly at 203-219. He adds (217):

“The celebration by lawyers and judges of the “fairness” of a system in which it is thought better to acquit ten guilty defendants than to convict one innocent defendant is an attempt to put a good face on what is actually a confession of systemic ineptitude in deciding questions of guilt and innocence.”

Ah yes, there’s nothing like a little philosophy to make you have doubts about everything (except your existence).