Book review: The Sense of Style - The Thinking Person's Guide to Writing in the 21st Century, by Steven Pinker

I enjoyed most of Steven Pinker’s, The Sense of Style – The Thinking Person’s Guide to Writing in the 21^st Century.

My computer puts a green wavy line under the second definite article in that title, apparently because it doesn’t like the capitalisation. Just illustrating that we can all find something to argue about when deciding how groups of words should be written. I could object to the inelegance of the occurrence of two definite articles in so few words, and I could wonder at the ambiguity: who is the thinking person, the author or any reader who finds the book a useful guide?

And arguments can get heated. To deter criticism – rather as Kremlin parades of nuclear missiles averted Moscow’s annihilation – Pinker ends with five things an antagonist should do before engaging. The fifth includes this:

“Psychologists have shown that in any dispute both sides are convinced that they themselves are reasonable and upright and that their opposite numbers are mulish and dishonest. [Footnoting Haidt, J. 2012. The righteous mind: Why good people are divided by politics and religion. New York: Pantheon, and Pinker, S. 2011. The better angels of our nature: Why violence has declined. New York: Viking, chapter 8.]”

Squabbles about being right or wrong are beside the point. The point is style, not grammar. And Pinker concludes by saying that the reasons to strive for good style are:

“to enhance the spread of ideas, to exemplify attention to detail, and to add to the beauty of the world.”

And how to achieve good style? Pinker describes his own writing method, presumably used for this book: rework every sentence, revise a chapter two or three times before showing it to anyone, revise again at least twice in response to feedback, then give the whole book “at least two complete passes of polishing” before it goes to the copy editor for a couple more rounds of tweaking.

Good style doesn’t come easily. And what is the thing that all this revision is trying to get into the writing? Pinker gives plenty of examples of how writing can be improved. In the end, however, all that can really be said by way of defining good style, it seems to me, is that it feels right, and in the case of a revision it feels better than what went before. And this improvement would be accepted by most adults who have English as their first language and who appreciate good writing (the thinking people of his title). Read aloud, to get syntax right so that readers don’t stumble: “laboratory studies have shown that even skilled readers have a little voice running through their heads the whole time.” If it doesn’t sound right it’s not good style.

In one – what is for me significant – respect I find Pinker’s style repellent. I suspect his ears (as he says in relation to a different topic) have “been contaminated by a habit ... to avoid spitballs from the Gotcha! Gang.” It seems to me that his ears have been contaminated in the academic environment by the requirement, appropriate though it may be during a developmental stage of young people’s education, to avoid the sexism of using he to include the female gender, by using he alternately with she, or by using the phrase he or she, or by using their to refer to a singular of either gender.

I agree that sexist language should be avoided, but the right way to do it is to revise until the need for reference to gender disappears. I agree with Antonin Scalia on this (see my review of Scalia and Garner, Making Your Case – The Art of Persuading Judges).

Pinker begins (according to my Kindle app this is p (iv)) by telling us that he will “avoid the awkwardness of strings of he or she ... [by] consistently referring to a generic writer of one sex and a generic writer of another. The male gender ... will represent the writer in this chapter; the roles will alternate in subsequent ones.” But later (p 260) he refers again to science: “Experiments that measure readers’ comprehension times to the thousandth of a second have shown that the singular they causes little or no delay, but generic he slows them down a lot.”

So generic he is bad. Presumably generic she is too. So Pinker’s plan was to alternate bad style chapters with other bad style chapters.

Although he acknowledges that he or she is clumsy (p 256), his plan leads Pinker to do worse by alternating male and female pronouns, even in the one sentence (p 29): “The writer can see something that the reader has not yet noticed, and he orients the reader’s gaze so that she can see it for herself.”

This would have been better: "The writer can see something that the reader has not yet noticed, bringing it to the reader’s attention." And even better: "The writer can bring something new to the reader's attention."

And sillier too is the image one gets of Pinker marking a student’s paper, when he says that (p 28) a “college student who writes a term paper is pretending that he knows more about his subject than the reader and that his goal is to supply the reader with information she needs ...”.

Better would have been: "a college student who writes a term paper is pretending to know more about its subject than the reader and that the goal is to supply the reader with needed information." Even better: "a college student who writes a term paper is pretending to tell the reader something new."

My suggestions are not perfect, and I’m not calling Pinker mulish, but they point to directions for further revisions.

This narrow point of objection to Pinker’s style may not be shared by you (I have done this sort of thing before), and it doesn’t really diminish the value of the book. A good guide for everything except avoidance of sexist language.

Book review: Lord Mansfield - Justice in the Age of Reason by Norman S Poser

If you are not yet in love with eighteenth century London, Lord Mansfield – Justice in the Age of Reason by Norman S Poser will get you started. If, as mine did, your infatuation began with Boswell’s The Life of Samuel Johnson, LL.D., you will be well prepared. But Poser’s account is so straightforward and clearly written that there is really no threshold of preparation to be overcome.

Both Boswell and Mansfield (born William Murray) were social climbers. Both were lawyers. Both were Scottish. They knew each other. In April of 1772 they appeared on opposite sides in an appeal in the House of Lords, and Murray won. Murray was educated in England, after at age 13, and unaccompanied, he rode a horse to London from Edinburgh, never seeing his parents again, to attend Westminster School. Johnson observed to Boswell: “Much may be made of a Scotchman, if he be caught young.” Boswell was educated in Scotland and Holland.

As a lawyer Murray had an appreciation of Roman law and as a judge he was inclined to be guided by principles rather than rules, introducing what some thought was an alarming unpredictability into the common law. Poser summarises this (p 402):

“His study of the great philosophers of law instilled in him a belief that all law was based on morality, reason, and human nature, which were the same everywhere, even though customs, mores, and traditions differ from country to country.”

Poser’s review of the courts in Westminster Hall is extraordinarily clear, and it is only regrettable that those who taught me legal history, and who wrote the textbooks, were not so interesting. The times were ones of, by our standards, corruption. Judicious payments could lead to judicial office. Judges kept for themselves a proportion of the court fees in cases they heard. Lord Mansfield – he insisted on being ennobled as a condition for his acceptance of the position of Chief Justice of the court of King’s Bench – on occasion was in the House of Lords when appeals from his own decisions were heard. His fear of exposure for a youthful indiscretion, which could have led to accusations of treason, led him to be unduly concerned with placating those in political power. But this was widely known anyway, and he was occasionally subjected to harsh criticism in print.

Murray was so able a lawyer, particularly because of his learning and his eloquence, that he quickly became a leader of the profession. He amassed a fortune, even before going to the bench – indeed it was probably his potential financial sacrifice that gave him the leverage to demand the peerage. He invested in mortgages on properties owned by aristocrats. He was incurably ambitious. As Horace Walpole wrote, “he knew it was safer to expound laws than to be exposed to them.”

He was an autocratic judge, although unafraid of admitting that he had been wrong. Poser gives us this:

“when asked why he had changed his mind on a particular point of law, he answered that it only showed that he was wiser today than he had been the day before.”

I can’t help but wonder whether Bramwell B was thinking of this when he said, in Andrews v Styrap (1872) 26 LT 704, at p 706: “the matter does not appear to me now as it appears to have appeared to me then”.

Mansfield worked extremely hard as a judge. He sat long hours and kept cases going even after he had gone home: juries would sometimes have to visit him in Bloomsbury Square to return their verdicts. His instructions to juries were alien to our standards, and he had a rather flexible attitude to penal laws he didn’t like. On one occasion he told a jury that (pp 352-353)

“... These penal laws were not meant to be enforced except at proper seasons, when there is a necessity for it; or, more properly speaking, they were not meant to be enforced at all, but were merely made in terrorem ...

“   Take notice, if you bring him in guilty the punishment is very severe; a dreadful punishment indeed! Nothing less than perpetual imprisonment!”

Americans make a hero of Mansfield, and of his contemporary Blackstone, because they inherited the common law as it then was. More realistically, he had characteristics that are all too familiar: he was erudite, opinionated, a bully, a climber, avaricious and ambitious, acquisitive and greedy. He ended his years at his (then) country house, Kenwood in Hampstead, obese and arthritic, having clung to office until his inability to write forced him into retirement. In some ways, too, he was very kind, but he had a lot to be kind with.

Although he had, and apparently enjoyed, a long marriage, there were no children. As a ladies' man he seems to have fitted Clive James's description of Isaiah Berlin:

"Sexually inoperative but incorrigibly flirtatious, he loved the high-born ladies, who loved him right back, although his paucity of physical response - a desert under the ocean of talk - led several of them to despair ..."

Boswell, in his journal entry for 11 April 1773, describes a conversation with Mansfield (who would live another 20 years, dying at age 88):

“He is all artificial. He affected to know little of Scotch appeals when over. I catched him ... [showing that] he well remembered what he affected not to remember. It is unpleasant to see so high an administrator of justice such a man.”

Book Review: Peter Gill, "Misleading DNA Evidence: Reasons for Miscarriages of Justice"

Every criminal lawyer needs to read Peter Gill’s “Misleading DNA Evidence: Reasons for Miscarriages of Justice” (Academic Press, 2014).

Judges should read it too. It is admirably clear and no expertise is required of the reader. If you have some experience with DNA evidence and Bayesian reasoning you will still find the book useful for its descriptions of how things can go wrong.

Peter Gill is one of the world’s leading experts on forensic DNA. I say ‘one of’ just to be polite to any other contender, for Dr Gill is really the leader.

Things can go wrong (as I so eloquently put it above) because DNA detection is now very sensitive and DNA is everywhere. A typical crime scene will have detectable amounts of DNA from many sources. Partial DNA profiles can be detected too, and this complicates the evaluation of mixed samples. Investigators can contaminate a crime scene, transferring DNA from one thing to another, with even latex gloves being vehicles for transfer. Detection of DNA does not mean that it is necessarily present because it was in a body fluid present at a crime scene. Samples collected for analysis must be sealed, and gloves changed, so that no transfer should occur between them, and in the laboratory the risk of transfer between suspect and scene samples must be minimised. There should be studies of the risks of contamination within a laboratory, and these should be done without the knowledge of those who work in that laboratory.

Courts tend to leap to conclusions that are not scientifically sound. Inferences that could be tested experimentally are often drawn without that evidence. A common example may be the assumption that a defendant’s DNA on a murder weapon found at a crime scene was only on the weapon and was not also on a  number of other items which would innocently explain why it was also on the weapon; what the media refers to as the Amanda Knox case is an illustration that Dr Gill uses to make this point: the defendant’s DNA on a knife, allegedly the murder weapon, in a kitchen drawer, was given significance it may not have deserved in the absence of evidence of whether her DNA was also on other items in the drawer (which it surely would have been as she used the kitchen).

I don’t want to spoil your enjoyment of this book by saying more. The Kindle app version, giving coloured text, has links that are easy to navigate, including links to some of the cited technical papers that are available online. It is a book that should be discussed with expert witnesses, whether they are relied on by the prosecutor or by the defendant.

Wrapping up

And that was ten years of commentary. Just a consequence of having the radio on while working at my desk on 25 August 2004, and hearing a computer person being interviewed about how to start a blog.

600 commentaries. Ovid’s self-rebuke comes to mind:

Cum relego, scripsisse pudet, quia plurima cerno, me quoque qui feci judice, digna lini.

A defendant's liability for Parliament's mistake

A couple of statutory interpretation questions were answered in Beezadhur v The Independent Commission against Corruption & Anor (Mauritius) [2014] UKPC 27 (7 August 2014), one unanimously, the other not.

The relevant provisions were s 5 of the Financial and Anti-Money Laundering Act 2002 [Mauritius], which prohibited transactions in cash above a fixed amount but subject to exemptions, and s 2 which defined exempt transactions in terms which, relevantly here, included the phrase “lawful business activities”. This legislation has, since the result of this case in the Mauritius Supreme Court, been amended by omitting the reference to “business” [4].

The Board agreed that the defendant had the burden of proof at trial on the issue of whether a financial transaction came within a statutory exception to liability, applying the long-recognised [26] policy that this should be no particular hardship because the information would be readily available to the defendant [32], applying R v Johnstone [2003] 1 WLR 1736 para 50 per Lord Nicholls.

The other issue, the meaning of “business” in the relevant statutory exemption, in particular the phrase “the transaction does not exceed an amount that is commensurate with the lawful business activities of the customer”, drew a dissent from Lord Kerr. He favoured a liberal construction, to give a wider exemption, consistently with the shift of the burden of proof to the defendant [39], [40]. The majority held that the policy of the legislation required exemptions from liability to be construed narrowly [22], [23].

This raises, we might think, a more general question: should legislative action, taken before a case has completed its appeal process, to remedy what has been revealed in the lower court to be an unintended consequence of the original enactment, be taken into account in interpreting the original provision for the purposes of the final appeal?

It was accepted [37] that the defendant’s (appellant’s) four deposits, which were retirement savings, were from legitimate sources and his one withdrawal was also for legitimate purposes, and the Board noted that there was no reason to believe that he thought he had broken the law. The legislation was new and it was not clear to what extent it had received publicity. The Bank, it seemed, should have alerted him to the requirements of the Act, and for unknown reasons the Bank had not also been prosecuted. Although there was no appeal against sentence (which had been fines on each of the five counts), the Board indicated that a non-penal disposal could properly have occurred.

The limitation on the Board’s powers, confined here to the appeal against conviction, meant that the defendant had received an unduly harsh sentence (I say “harsh” relative to a discharge; the total fines here amounted to only 1.68 percent of the total monies involved in the charges). Where the penalty imposed is harsher, the jurisdictional limit may be worked around, so to speak: compare Ramdeen v The State (Trinidad and Tobago) [2014] UKPC 7 noted here on 28 March 2014, where the Board riled against a jurisdictional limitation and ordered commutation of a death sentence to life imprisonment. I try not to be sarcastic, but must ask: is it only murderers who get the Board's extended efforts to achieve a just result?

More on expert evidence

Two decisions of the High Court of Australia yesterday don’t develop the law but they do illustrate how careful everyone should be about expert evidence.

Is the evidence based on specialised knowledge?

In Honeysett v The Queen [2014] HCA 29 (13 August 2014) an expert was called to compare images of the offender obtained from CCTV footage with photographs of the defendant (appellant) taken at a police station. The expert noted some points of similarity. Although in the High Court the respondent suggested that this evidence was adduced only to show that the defendant “could not be excluded” as the offender, the reality was that at trial it had been advanced as supporting an inference of identity. The issue was whether the witness was giving expert testimony.

It seems obvious, now that we know the result, that this sort of comparison could be made by members of the jury for themselves; it did not require any expertise. The limited nature of the evidence in this case was such that it did not involve use of the witness’s expertise in anatomy. Also, the respondent resiled from what in the lower courts had been advanced as engaging expertise: the witness’s experience in viewing CCTV images and making comparisons with suspects; only expertise in anatomy was now relied on [39].

The non-engagment with the witness’s expertise was apparent from a passage in the court below (Macfarlan JA, with whom the other members of the NSW CCA agreed, in upholding the conviction), and quoted by the High Court at [37]:

“In addition to his formal qualifications in anatomy, Professor Henneberg is a person of extensive practical experience in examining CCTV footage, with all its deficiencies, and attempting to identify characteristics of persons depicted in it. The view he expressed on this topic is necessarily subjective and not amenable to elaboration beyond the reasons he gave, or to measurement and calculation.”

(emphasis added by me). This, correctly understood, supported the conclusion that the evidence was not based on specialised knowledge [43]:

“Professor Henneberg's opinion was not based on his undoubted knowledge of anatomy. Professor Henneberg's knowledge as an anatomist, that the human population includes individuals who have oval shaped heads and individuals who have round shaped heads (when viewed from above), did not form the basis of his conclusion that Offender One and the appellant each have oval shaped heads. That conclusion was based on Professor Henneberg's subjective impression of what he saw when he looked at the images. This observation applies to the evidence of each of the characteristics of which Professor Henneberg gave evidence.”

The evidence was not admissible. The Court did not have to decide whether, as submitted by the appellant, to be based on specialised knowledge an opinion must be able to be independently validated [42].

Mere use of technical language does not mean that an opinion is based on specialised knowledge [45]:

“Professor Henneberg's evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One share a number of physical characteristics. [footnote: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 429 [44] per Gleeson CJ; Morgan v The Queen [2011] NSWCCA 257; (2011) 215 A Crim R 33 at 61 [145] per Hidden J.] Among other things, the use of technical terms to describe those characteristics – Offender One and the appellant are both ectomorphic – was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny.”

What is the witness actually saying?

The other decision, Fitzgerald v The Queen [2014] HCA 28 (13 August 2014) concerns a prosecution case that, it now seems, could hardly have been weaker: a trace of DNA from the defendant (appellant) was found on a didgeridoo located at the scene of a violent attack. The prosecutor, held the High Court, could not exclude innocent explanations for the DNA’s presence and the conviction was quashed and a verdict of acquittal entered.

The error in the courts below was essentially that the expert’s evidence had been misunderstood. In evaluating whether the prosecutor had proved guilt beyond reasonable doubt the High Court referred to the following points [36]:

“On Dr Henry's evidence ... the prosecution's main contention, that the appellant's DNA in Sample 3B derived from the appellant's blood, was not made out beyond reasonable doubt. Secondly, Dr Henry's evidence was not that secondary transfer of DNA was "rare"; rather, she said that a primary transfer is a much more likely source of contact or trace DNA than a secondary transfer, but that nevertheless a secondary transfer of contact or trace DNA is possible. There was no conflict in the evidence that there were at least two distinct occasions ... on which a secondary transfer of the appellant's DNA to the didgeridoo may have occurred. Thirdly, the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. For those reasons, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt. [footnote: M v The Queen (1994) 181 CLR 487 at 493-494.] Alternative hypotheses consistent with the appellant's innocence, in particular the hypothesis that Sumner [co-defendant] transferred the appellant's DNA to the didgeridoo on Sumner's first visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded them. As the evidence was not capable of supporting the appellant's conviction for either offence, no question of an order for a new trial arose.”

Other cases on expert evidence

See also: Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011), discussed here on 22 August 2011, and on various types of expert evidence: fingerprints here on 27 January 2006, drug couriers here on 25 February 2014, hypnosis here on 2 February 2007, blood alcohol here on 18 April 2008, sexual assault injuries here on 18 June 2010, the dangers of manipulation of expert evidence here on 26 June 2009, sounds on a recording here on 12 June 2009, unfair criticism of an expert by counsel here on 28 May 2009, and (a brief mention, see the case for details) qualifying as an expert here on 23 January 2006.

Photos from abroad

In taking photographs of a girl performing oral sex on another man, the defendant did an act “with or on” the girl so as to commit an offence as a principal offender under s 132(3) of the Crimes Act 1961 [NZ] (following Y (SC40/2013) v R [2014] NZSC 34 (3 April 2014), noted briefly here on 4 April 2014). He was therefore liable in New Zealand, even though this all occurred overseas, because of the extension of jurisdiction by s 144A of that Act.

That is how the Court reasoned in LM v R [2014] NZSC 110 (13 August 2014).

In addition to accepting that liability could arise in that way, two of the five judges found another path. They considered that the defendant was liable as a secondary party under s 66(1)(b)-(d) of the Act, regardless of where the principal offender committed the offence, and that therefore, since he committed the acts of secondary participation overseas, Mr LM came within the s 144A extended jurisdiction. On this approach (as I understand it) one pretends, when asking whether the defendant was aiding or abetting, inciting counselling or procuring the commission of an offence, that the offence was committed in New Zealand by the principal, just for the sake of establishing that what was done was an offence under New Zealand law.

William Young J for the majority on this aspect of the case (with Elias CJ and McGrath J) was “unable” to construe ss 144A and s 66(1) as imposing liability on someone who is a secondary party to a substantive “offence” which occurred overseas but which, because the principal party was a foreigner, was not an offence recognised in terms of s 144A [24]. In this case the other man’s acts done overseas were not an offence under New Zealand law because he was not a New Zealand citizen and was not ordinarily resident in New Zealand.

Putting aside the “with or on” aspect of the actus reus, which enabled the court to find that Mr LM could be liable as a principal party, more generally there are three permutations of circumstances illustrating potential liability. If both men had been New Zealanders, both would have been liable in New Zealand, one as a principal and one as a secondary party [17]. If the principal party had been a New Zealander, but not the other, the principal would be prosecutable in New Zealand, but as the legislation does not specifically impose liability on secondary parties who are New Zealanders, a foreign secondary party’s liability would be less certain, and the better view [20] is that only New Zealanders could be liable as secondary parties under s 144A (the minority seem to agree: [40, footnote 26]). And if the principal was a foreigner and the so-called secondary party a New Zealander, the New Zealander would not be liable as there was no offence, over which there was jurisdiction in New Zealand law, to which he could have been a secondary party [23]-[24] (disagreeing with the minority).

The majority suggest that s 144A should be revised to specifically refer to secondary liability, as in the corresponding provisions in Australia and the United Kingdom, to meet the concerns raised by this analysis of the permutations [25]. There seems, as the minority point out [40], no logical reason for the policy to be to exclude the secondary liability of a New Zealander merely because the principal party happens to be a foreigner.

In summarising this case I have used the terms “principal party” and “secondary party” in the sense that is consistent with s 66(1): a principal party actually commits the offence and is liable under s 66(1)(a), and a secondary party does any of the acts described in s 66(1)(b)-(d). The meaning in the judgments is the same but the tendency is to use the expression “party liability” to mean “secondary party liability”, see, for example [23], and so to distinguish a principal from a party (meaning a principal party from a secondary party) as in [19].

The embarrassing c.v.

This month marks the 10^th anniversary of the start of this site. I try to be modest but the facts make that unconvincing. My normally fetching diffident modesty could easily be misinterpreted as obnoxious condescending pomposity. Not that many of my colleagues will notice, as they seem to regard the internet as almost exclusively an outlet for their obsessive prostate therapy.

And here, for the less onanistic, we have an exciting new decision from the Supreme Court of Canada: R v Hart, 2014 SCC 52 (31 July 2014).

At least it is exciting for lawyers who encounter occasions of police operations that in Canada are called “Mr Big” operations. Broadly, and the details are in the decision, this involves undercover police officers masquerading as members of a gang that the defendant wants to join. They require the defendant to detail the offences that form a sort of curriculum vitae in the application for membership, and those details are later offered to the court as evidence on relevant charges. When are such confessions admissible?

The majority, in a joint judgment delivered by Moldaver J (Cromwell J separately concurring on the test for admissibility, Karakatsanis J dissenting on that) laid down a “new” test. I explain the quote marks in a moment. The test has two prongs, as the Court called them. First, there is a balancing of probative value against prejudicial effect, and secondly there is consideration of abuse of process. The prongs need not be considered in that order, because if there would be an abuse of process in admitting the evidence then it is excluded, or in an extreme case the prosecution is stayed, without the need for consideration of the first prong [89].

My quote marks are because these prongs are not new. The test is only new in the sense that evidence obtained in the context of one of these operations is presumptively inadmissible on the first prong [10], [85]. The prosecutor must prove that, on the balance of probabilities, the probative value of the evidence outweighs the prejudicial effect of admitting it [89]. But the defendant still has the traditional burden if reliance is placed on abuse of process as the ground for exclusion [11].

While this is a special rule for special facts, the joint judgment includes explanations of the balancing exercise and the abuse of process decision that could have general application.

If one wants to find disappointment, one should contemplate the missed opportunity to sort out the relationship between the probative value/prejudicial effect balancing and trial fairness. As is generally accepted – and obscurely referred to at [109] - a problem with describing the probative value/prejudicial effect decision as a balancing exercise is that it suggests that high probative value can only be outweighed by a high level of risk of prejudicial effect, and this in turn suggests a high tolerance of risk of trial unfairness. The only solution offered here is “trial judges will have to lean on their judicial experience” in difficult cases [109].

A better requirement would have been that the first prong would focus on trial fairness: would admission of the evidence create a real risk that the trial would be unfair because it would endanger the impartial determination of the facts. There would be no balancing, just an assessment of this risk. “Impartial” here is used in the sense that it emerges from trial fairness jurisprudence.

Still, Canadians must work with the prongs as established in this case. There are valuable comments at [95] – [105] on how probative value should be assessed, addressing both the circumstances in which the confession was made, and the credibility of the confession itself. And prejudicial effect is addressed at [106] – [107].

As far as abuse of process – the second prong – goes, the joint judgment acknowledges that this has not hitherto provided an effective remedy in this context, and recognises that it has to be “reinvigorated” [114], mainly through enhanced judicial sensitivity to the risk that the circumstances of a given case may amount to coercion [114] – [118].

One should ask whether the new test for evidence obtained in the context of Mr Big operations provides adequate protection against self-incrimination, which was the basis for exclusion that Karakatsanis J would have preferred [170], [180]-[185]. Moldaver J’s reasons for disagreeing are at [124]-[125], essentially they are that the way the principle against self-incrimination would provide a remedy here would have to be worked out, adapting rules of evidence and prevention of abuse of process (illustrations of similar workings out are the confessions rule and the right to silence), and the two-pronged approach does that.

Karakatsanis J’s reason for dissent was that the two-pronged rule does not adequately take into account broader concerns like human dignity, personal autonomy, and the administration of justice [167]. The focus should be on three “vital concerns”: the reliability of the evidence, the autonomy of suspects, and the potential for abuse of state power [168]. There is established case law on the principle against self-incrimination and there is no need for a new rule [181].

Well, as I indicated above, the new bit is really the presumption that evidence obtained in a Mr Big context will be more prejudicial than probative and that it should be excluded for that reason alone. Whether that shift of burden to the prosecutor is really significant should be assesed by reference to how difficult it was for the defendant to put the question of admissibility in issue. Usually, as judges tend to say, it is only in marginal cases that it matters who has the burden of persuasion (see for example Lord Brown in O v Crown Court at Harrow [2006] UKHL 42 at [35], noted here on 31 July 2006). Trial judges have, however, been given a nudge towards being very careful to avoid improper prejudice, and to be especially sensitive as to abuse of process, in cases where this new rule applies.

Cromwell J would have left application of the new rule to the trial court in the event that the prosecutor decided to pursue a new trial, whereas the majority ruled the evidence inadmissible in this case [152] - [163].

The case also illustrates another point: the trial judge should have allowed the defendant to give evidence in the absence of the public (who could have been accommodated in another courtroom to view the proceedings by closed-circuit TV), because of the special vulnerability of this defendant [42], [48], [51]-[55].

When is fairness intolerable?

The right to legal advice was central to R v Taylor, 2014 SCC 50 (18 July 2014). The defendant had requested legal advice but this request was not acted on during the collection of a blood sample which was of central importance on an alcohol-related driving offence. On conducting the balancing exercise in accordance with R v Grant (discussed here on 19 July 2009) the Court held that the improperly obtained evidence was inadmissible.

The right to legal advice is closely associated with the right to silence. A motive for refusal of access to a lawyer, it may be reasonably be conjectured, could be that the police do not want the suspect to exercise the right to silence. And the right to silence is of fundamental importance: it is a corollary of the obligation on the prosecutor to prove the charge, and of the need to do so without the assistance of the defendant.

The right to legal advice has previously been the subject of commentary here: see Cadder v HM Advocate [2010] UKSC 43 (here on 27 October 2010), R v Sinclair [2010] SCC 35 (here on 15 October 2010), Salduz v Turkey [2008] ECtHR 1542 (here on 3 December 2008).

The central issue highlighted in those comments is whether a breach of the right to legal advice raises fair trial issues, in which case a balancing exercise is not appropriate (but an exclusionary rule is), or whether it raises issues of public policy, where balancing of competing interests is appropriate.

It is easy to forget history and to say that the issue of the admissibility of evidence obtained in breach of the right to legal advice is an issue of policy. The Birmingham Six abuses of police power, and the manufacture of false confessions, came as a shock to British justice, and drove home the importance of the right to silence and the vulnerability of people who are held in custody.

In his wonderful article in the London Review of Books, vol 15 no 21 (4 November 1993) “A sewer runs through it”, Alastair Logan (a solicitor whose clients included the Guildford Four and the Maguire Seven) noted that research presented to the Royal Commission on Criminal Justice

“shows that 42 percent of those who were arrested and detained in police stations during the currency of the Commission were educationally subnormal or of borderline intelligence; another 7 percent were suffering from defined mental illnesses. The average IQ of detained persons was 82. One third were intellectually impaired, and 35 percent were not in a normal mental state due to extreme distress, mental disorder or drugs. Twenty percent were suffering from an unusually high level of anxiety and distress. About 20 percent required the assistance of an adult to safeguard them and their rights, though the police identified only 4 percent of that number as requiring such protection. The police commonly failed to recognise that detained persons suffering from depression were vulnerable. There is no systematic training available to police officers to enable them to identify vulnerable suspects or mental disorder. The removal of the right to silence attacks the vulnerable and the disorientated, who massively outnumber the terrorists and the professional criminals, in or out of uniform.”

It is very easy, in cases like Taylor where the alleged offending is not of the most serious kind, for courts to conclude that a balancing exercise favours exclusion of evidence obtained in breach of the right to legal advice. Indeed, in Taylor the Court was not concerned to explore what advice the defendant could have been given [41], or in what way absence of legal advice may have prejudiced his defence. For more serious allegations the balancing exercise may well include such considerations. Yet it is when being held in custody on more serious allegations that a person will be most in need of the protection of the right to legal advice, and a court would have to consider whether use of evidence improperly obtained from a vulnerable defendant really promotes respect for the law.

Support for determination of admissibility of improperly obtained evidence by a balancing of policy interests is found in the seemingly ever-present fear that those defendants who face the most serious charges will have to have fair trials.

Noted in passing ...

Three recent decisions:

Of narrow interest is R v Quesnelle, 2014 SCC 46 (9 July 2014) on when a defendant can have copies of reports, recorded by the police, of a complainant’s allegation of other offending. At issue was the construction of the Criminal Code, ss 278.1 to 278.91.

Slightly more interesting is R v Sipos, 2014 SCC 47 (10 July 2014) on when an appellate court should receive fresh evidence if it finds error of law, or unreasonableness, in the decision of the court below. Further, recognising that there can be a greater role for fresh evidence when the issue is unreasonableness, the appellate court may nevertheless conclude that even if the errors were corrected, or the fresh evidence were to be taken into account, the decision of the court below should be upheld. The context of this appeal was a sentencing determination of the defendant’s dangerousness, Criminal Code ss 753, 759.

And also of interest – at least for its quirky facts - is the ‘apparent bias’ case of the Judicial Committee, Yiacoub v R [2014] UKPC 22 (10 July 2014), holding that a judge whose decision is to be appealed may not take part in the selection of the appellate bench:

“[15] The difference in the present case is that the Presiding Judge found himself not simply appointing a judge to deal with a matter of general concern, but nominating a judge to hear an appeal from himself. The Board is satisfied that that carries an appearance of lack of independence and impartiality in relation to the process, viewed as a whole, which would impact on an objective informed observer. It is not difficult to imagine circumstances, under other regimes, in which such a process could be open to abuse of the kind not suggested here to have occurred in fact. The objective observer would, as it seems to the Board, say of such a process ‘That surely cannot be right’.”

Here, those gender pronouns are appropriate because the reference is specifically to a male judge, but it is an interesting – or moderately interesting – and not a particularly easy exercise to rework that first sentence into gender-neutral English. You may need to resort to more than one sentence, for example (and I’m not suggesting this is the best way of doing it):

“The difference in the present case is that the Presiding Judge was not simply appointing a judge to deal with a matter of general concern. Rather, the appointed judge was to hear an appeal from the Presiding Judge’s own decision.”

Unnecessary gender pronouns in legal writing

One of the advantages of writing is that an author has more time to think about how to put into words a thought that a speaker may only clumsily express.

Writing can be more aesthetically pleasing that speech, even if both forms of the language comply with grammatical rules.

A phrase which is acceptable when spoken, such as “he or she”, “his or her”, and similar conscientious efforts at avoiding sexist language, can disrupt the flow of the printed word. There are cleverer ways of avoiding sexism in writing.

It is never necessary to refer to a neutral noun with a gender-specific pronoun. And an aggregate of gender specific pronouns is a clumsy way of attempting neutrality. It is equivalent to the foolish thought, “Oh, I just wrote ‘he’, so now I have to write ‘or she’”. Better not to have unnecessarily written ‘he’ in the first place.

Textbook writers can be awful at this, and I admonish myself here too. They are usually associated with institutions that are particularly careful about sexism - and rightly so - but its avoidance tends to dominate concern about how something is written. Focus is, in such cases, and perhaps understandably, on what is written rather than how it is written.

The highest appellate courts whose judgments I consider here very rarely use expressions like “he or she”. From judgments handed down in June and July there are the following instances, which are like the kind of English written by judges’ clerks.

Judge’s English: “Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence.”

Better English: Accordingly a prisoner can be recalled under section 255 even if the conditions of the licence have been fully complied with.

Judge’s English: “I appreciate, of course, that the judge imposes the sentence which he or she thinks correct, without regard to the right to early release.”

Better English: I appreciate that the judge imposes the sentence which is thought to be correct, without regard to the right to early release.

Judge’s English: “The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”

Better English: The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where the need is seen for further inquiries, but a choice is deliberately made not to make those inquiries.

Going back to May (just for the sake of pointing a finger at the HCA), we find: Judge’s English: “An accused person may be prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case.”

Better English: The defence may be prejudiced because it is no longer possible to determine the course to take at trial by reference only to the strength of the prosecution case.

Note that in the second example I have omitted the judge’s phrase “of course”. Bernard Williams was good on this: it can indicate “a knowing condescension to whatever view is being interrogated, from the standpoint of some other, vaguely implied, view which would itself be patronised and ridiculed if it were being questioned.”

And to be fair, here is an example of one of my own clumsinesses in a textbook:

I wrote: “A defendant who successfully completes diversion will be told by the police that he or she does not have to reappear in court ...”

Oh, if only I had written: A defendant who successfully completes diversion will be told by the police that further appearance in court is not required ... .

Previously, here on 19 December 2013 I have mentioned pronouns in legislation in the context of the power of Chief Parliamentary Counsel to adjust legislation to conform to current drafting standards. In a recent NZSC case, on which I have not yet commented, the Court refers to the now-repealed s 381A of the Crimes Act 1961. The current provision is s 296 of the Criminal Procedure Act 2011, which commendably avoids gender pronouns. But the old version included this:

381A(2): The prosecutor must apply as soon as reasonably practicable after the Judge gives his or her reasons for the direction, and in no case later than 10 days after the reasons for the direction are given.

This "his or her" is unnecessary. There is no need for pronouns here. The subsection makes perfect sense revised to read:

 "The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after the reasons for the direction are given."

You could even improve it by omitting the repetition of "reasons for the direction":

"The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after those reasons are given."

But then you notice the opportunity for using a gender-neutral pronoun, to make it even better:

"The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after they are given."

Back to the Criminal Procedure Act 2011, which has numerous instances of "he or she", "him or her" and so on. Not a few of these are due to a provision which is repeated several times, containing the phrase

"issue a warrant to arrest the defendant and to bring him or her before the court".

Far better, but much less obvious, would be

"issue a warrant to arrest, and to bring before the court, the defendant".

I like this suggestion, because it puts the defendant as a remote target of the collected powers.

Currently, the best legal prose is found in the judgments of the leading appellate courts, but even these can have infelicities deserving of reconsideration.

Rights and the clutter of precedent: prisoner access to judicial determination of recall

A prisoner who has been recalled to prison after being released on conditions during the term of the sentence may wish to have the legality of that recall determined judicially rather than by executive decision.

Generally, parole boards do have to act judicially: see for example R v Parole Board, ex parte Smith and West [2005] UKHL 1, discussed here on 31 January 2005, but an executive decision might only be constrained by the need for it to be reasonable: compare R (Black) v Secretary of State for Justice [2009] UKHL 1, discussed here on 22 January 2009.

In the absence of a specific avenue of recourse to a judicial body, prisoners may look to international law for the right to have their recall to prison determined by a judicially. For example, the International Convention on Civil and Political Rights provides in Article 9.4 that

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

And the European Convention on Human Rights, Article 5.4, says the same thing:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Whether there is recourse to a right in international law will depend on the domestic legislation, which may exclude it, incorporate it, or be unclear.

Statutory schemes for prisoner release vary, but there is a general pattern, always subject to local variation. Broadly, there are two sorts of release during a sentence of imprisonment. First, during an early part of the sentence but after a period has elapsed, there is discretionary release. The prisoner is not entitled to be released at this stage, but if released may be recalled for some reason such as the impracticability of ongoing electronic monitoring. Secondly, after a set proportion of the sentence has passed, the prisoner may become entitled to release, although again may be recalled during the remainder of the sentence, usually only because it has become clear that the release entails an ongoing risk to the safety of a person or of the community.

Can prisoners who have been recalled after discretionary release expect to have access to a judicial determination of the lawfulness of that recall?

The United Kingdom Supreme Court has unanimously held no: Whiston, R (on the application of) [2014] UKSC 39 (2 July 2014). Lady Hale, in her brilliantly clear separate judgment, points out that this case decides that point only, not the question of access to judicial determination where a prisoner who was entitled to be released has been recalled.

But Lord Neuberger, jointly with Lords Kerr, Carnwath and Hughes, applies Strasbourg jurisprudence “as explained and applied in Giles” [43]. This refers to R (Giles) v Parole Board [2004] 1 AC 1, in which Lord Hope said at [51]:

“Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.”

This distinguishes determinate sentences (that is, sentences where the court has fixed the term) from indeterminate sentences (where the court has imposed life imprisonment or preventive detention). Although the concepts of judicial review and judicial determination are not distinguished, Lord Hope concluded that access to a judicial tribunal is only available to prisoners recalled during indeterminate sentences.

Lord Neuberger agreed [38], adding that the prisoner still has domestic remedies [40].

Instead of lumping all determinate sentences together, Lady Hale distinguished between prisoners who have been recalled from discretionary release (no access to judicial determination) from those recalled from release to which they had been entitled (access to judicial determination). The Parole Board, being required to act judicially, is the appropriate tribunal.

The difference is therefore between distinguishing between prisoners who are serving determinate, as opposed to indeterminate sentences, or between prisoners who were given discretionary release and those who were entitled to be released, during their sentences.

Lady Hale recognised that one Strasbourg decision was inconsistent with her analysis [57] (and [52]-[53]), but she suggested that its weakness was that it failed to appreciate the strength of a prisoner’s right to be released after serving a specified proportion of a sentence [53]. Lord Neuberger replied that the ECtHR may wish to reconsider its jurisprudence but currently he considered it had the effect that he had stated [49].

Lady Hale pointed out that the majority judgment went beyond the issue in this appeal, and that to the extent that she disagreed with it, it was obiter dicta [59].

Given that a prisoner on an indeterminate sentence has access to a judicial decision on recall, it certainly seems strange that a prisoner entitled to release does not. No doubt the majority in Whiston, if free to decide the issue unimpeded by the clutter of precedent, would be inclined to recognise that issues of breach of rights should always be open to judicial determination.

That is the point of general interest in this case. I should stress that local statutory schemes for release of prisoners may leave no room for issues of this nature. Whether that brings legislation in conflict with internationally recognised rights, and if it does, whether there is a remedy, is a different matter. On the Strasbourg interpretation, only recall during indeterminate sentences can be judicially determined, but on the alternative interpretation judicial determination is available if the relevant legislation gives a prisoner the right to be released after serving a proportion of the term. Some legal systems may already provide that remedy, for example by requiring all recall decisions to be made judicially by a parole board.

The faster you go the bigger the mess?

One reflects, as one must, on the appellate delay in Sabapathee v The Director of Public Prosecutions (Mauritius) [2014] UKPC 19 (25 June 2014).

There is nothing exceptional about the offending, and sentencing should have been routine. But the judge’s lenience in imposing a fine led to appellate squabbles over whether imprisonment should have been imposed instead.

These squabbles – or, as we call them in law, proceedings – lasted about 3 years and eight months. During that time the defendant had got on with life [34]:

“There have been changes in the appellant's personal circumstances since his conviction. He is now married, his wife is pregnant and he has employment at a gym. The offence was a serious one and the Board is not persuaded that it would be grossly disproportionate for the appellant to serve a period in custody for it, but it is satisfied that it would be grossly disproportionate, in all the circumstances that he should now be required to serve a sentence as long as three years. The Board concludes that the appropriate course is that his appeal should be allowed, the sentence of three years imposed by the Supreme Court should be quashed and there should be substituted a sentence of 18 months' imprisonment, less the period spent by the appellant on remand in custody.”

The offence – possession of about 70 grams of cannabis for supply – was initially punished by a fine, then, on the prosecutor’s appeal, by imprisonment for 3 years (suspended pending the outcome of this appeal). The Board recognised that a sentence of 3 years’ imprisonment could properly have been imposed at first instance and that a fine was manifestly inadequate [32].

One year and 10 months elapsed between the imposition of the fine and the first appellate court’s judgment, and the Board’s judgment was delivered approximately 1 year and 10 months after that.

Given that the appeals both took about the same time, should the Board’s criticisms of delay be confined to the local proceedings? The Board said [25]:

“The Board is aware that judicial resources in Mauritius are strained, but that is not a satisfactory explanation for the length of time which elapsed in this case. The Court record shows that the hearing of the appeal on 13 February 2012 occupied the Court for 47 minutes. The date of the appeal appears to have been fixed at hearing on 15 February 2011, at which the parties were represented. The Board is not aware of the full circumstances, but on the face of it the Board considers it highly regrettable that an appeal of this kind should be fixed for a hearing date in a year's time. It is also regrettable that it took nearly six months thereafter for the court to deliver a 4 page judgment.”

This invites us to note that the Board took 3 months to deliver a 10 page judgment (pdf version).

And so, one inevitably asks, if 3 judges take 6 months to write 4 pages, how long should it take 5 judges to write 10 pages?

According to my calculator, and assuming, to be generous, judges work in the weekends just like we do: the Supreme Court of Mauritius wrote at the rate of 0.015 pages per judge per day, and the Board wrote at virtually the same rate: 0.022 pages per judge per day.

Privacy and electronic records

At common law a cell phone, seized when a person is arrested, cannot be searched. I say “at common law” because the rule may be modified, subject where relevant to any constitutional constraints, by legislation, which, for example may provide for authorisation of such a search by warrant.

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,”... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”

Riley v California, USSC No 13-132 (25 June 2014), Roberts CJ delivering the opinion of the Court.

The Supreme Court of Canada has similarly recognised the enhanced privacy interests that can be associated with electronic information, holding that a warrantless obtaining of information about a computer user’s name and address, from an internet service provider, was illegal, where the information was used to link that person to particular internet usage: R v Spencer, 2014 SCC 43 (13 June 2014). But here the illegally obtained evidence was admissible because the public interest in obtaining a conviction outweighed the breach of the defendant’s privacy.

A breach-but-admissible result also occurred in R v Cole, 2012 SCC 53, noted here on 9 November 2012.

Activity can be called a search if it involves a breach of a legitimate privacy interest (both Riley and Spencer illustrate this) or if it involves a trespass (there are many illustrations; see for example United States v Jones mentioned briefly here on 31 March 2012).

In Spencer the Court did not assert that there is a right to privacy (anonymity) in relation to online activity, only that there can be such a right [49]. The Court referred to its previous recognition of significant privacy interests in relation to online activity in R v Morelli, 2010 SCC 8 (CanLII), 2010 SCC 8, [2010] 1 S.C.R. 253, at [3], noted here on 23 March 2010, R v Cole above, and R v Vu, 2013 SCC 60 (CanLII), 2013 SCC 60, [2013] 3 S.C.R. 657, at [40]-[45], noted here on 17 November 2013. One might fairly ask whether it is appropriate to make the existence of a right dependent on circumstances. More logically, a right does, or does not, exist, and if it exists, the next question is how it interacts with other rights.

For an example of legislation that modifies the common law on search of electronically stored information, see my comments on Vu. That legislation, which I blush to admit is New Zealand's, seems to authorise a search of a cell phone in circumstances which include where a person can be searched without warrant, not merely where there are reasonable grounds to believe relevant information will be found, and not on the lesser threshold of reasonable grounds to suspect, but simply on the basis that the information "may" be found.

I do not think that Riley justifies a reading-down of statutory powers of warrantless search in New Zealand. The express power in s 88 of the Search and Surveillance Act 2012, coupled with the elaboration of the powers in relation to places and vehicles in s 110 and persons in s 125 are not stated to be only exercisable if it is impracticable to obtain a warrant. But the overarching requirement of s 21 of the New Zealand Bill of Rights Act 1990 is one of reasonableness, implicitly both as to the decision to exercise the power of warrantless search and to the manner of carrying out the search. An issue of reasonableness will be a case-specific inquiry. It would be wrong to say that a warrantless search of a cell phone or a computer that was in the possession of an arrested person will always be unreasonable.