Stage fright in the CCRC?

In a 2021 review of the operation of the Criminal Cases Review Commission (the Commission) for England, Wales and Northern Ireland, the Westminster Commission on Miscarriages of Justice had a significant concern that the Commission is at risk of being too deferential to the appeal court. Or, as I would say, stage fright might cause it to miss its cue.

A recommendation was made for change to the criterion for referral of cases to the appeal court.

Other concerns raised in that review included that the Commission was under-funded and over-worked.

Glancing at the online statistics published by the New Zealand Criminal Cases Review Commission (CCRC), in the light of the referral criterion set out in s 17 of the Act, there are currently 136 completed cases, including 1 referral to the court. While there is only one statutory ground for referral (the interests of justice), the published grounds for not referring a case are more informative insofar as they separate out some specific reasons in 70 cases, leaving 65 described as “Not in the interests of justice”. On this approach, the interests of justice are separate from the specific reasons (active appeal on same grounds, appeals process available, applicant deceased, application withdrawn, incomplete application and no criminal conviction). Presumably, then, the interest of justice here means the prospects of the court allowing the appeal (s 17(2)(c)).

So, in 65 out of 135 (48 per cent) of applications that do not progress to the court, the CCRC has concluded that the prospects of the court allowing the appeal are insufficient to justify a referral. When combined with the other reasons for refusing to refer a case, the CCRC has referred 1 in 136 (0.74 per cent) of cases it has completed. But, separating out those cases where there are specific statutory reasons for refusal to refer an application, the 65 occasions where the prospects of an appeal being allowed are the criterion have included one referral, so that is approximately 2 per cent of these “prospects” cases.

Plainly, the prospects of the court allowing the appeal is a very significant consideration when assessing the interests of justice. That is quite sensible, but one can ask whether the CCRC may be being too conservative in making that assessment. Another thought would be that appellate courts set reasonable doubt at too high a standard.

Returning to the experience in England, Wales and Northern Ireland (where the rate of referral to the appeal court is about 3 per cent) and remembering the horrific miscarriages of justice recognised in the Post Office appeal cases, in which inappropriate reliance was placed on a computer accounting system, and more recently in the successful appeal in the Malkinson case (see the article in The Guardian on 27 July 2023) in which the Commission had twice refused to make a referral, not having carried out the necessary investigatory work, we can wonder whether the criterion for referral could be improved. The Westminster inquiry recommended (at p 37) that their criterion could be redrafted:

“the 'real possibility' test should be redrafted to expressly enable the CCRC to refer a case where it determines that the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law or where it concludes that it is in the interests of justice to make a referral. By definition this would include all cases where it finds that a miscarriage of justice may have occurred including 'lurking doubt' cases.”

As funding will inevitably become inadequate, and resources inappropriately limited, the only protection that applicants will have against the CCRC’s wrongful refusal to refer cases will be a referral criterion that avoids the danger of what I have here called stage fright.

The New Zealand CCRC was established on 1 July 2020, so it may be too soon for an accurate calculation of the rate of referrals to be made. It is most unlikely that the New Zealand justice system is about four times more accurate at convicting people than are the courts in England and Wales (needing to refer only 0.74 per cent of applications, compared to 3 per cent for England and Wales). It would be more informative to compare the “prospects” statistics, if one could dig them out of the 2021 review for Engalnd and Wales. In any event, the CCRC should accept an error rate - that is, a rate of referrals which do not result in a successful appeal - as something similar to the rate of unsuccessful appeals that occurs in legal practice, which seems to be about 66 per cent. In a sense the CCRC is acting like counsel for the appellant where fresh evidence has been obtained to challenge a conviction, or where new considerations have been unearthed to call into question the appropriateness of a sentence. Counsel will pursue an appeal in those circumstances, being aware of the likelihood of failure from the point of view of statistics, and the CCRC should too.

In England and Wales the rate of successful referrals has been about 70 per cent (see p 35 of the review) and this has been criticised as indicating that more cases should be referred. One might say that it is the courts' error rate, not the CCRC's, that matters. Judicial blindness to the risk of error was a strong motivator for the establishment of the CCRC.

Three quite interesting appeals: live issues, police photography, and the plea of previous conviction

Three quite interesting appeals:

Refraining from irrelevancies

There are times when, no matter how interesting a point is and how helpful it would be to decide it, an appellate court will not address issues that are irrelevant to the appeal before it. A recent example is Moss v R (Bahamas) [2023] UKPC 28 (25 July 2023). Whether duress is an available defence at English common law to a charge of conspiracy to murder where the murder is actually committed remains undecided, because in this appeal, arising from a trial in which the defendant (appellant) had been charged with and convicted of conspiracy to murder, there was insufficient basis in the evidence to establish a foundation for duress. The defence was that there had been no conspiracy. It had been correct for the defence at trial not to seek to rely on duress, and the judge had correctly not left it with the jury as a potential defence. The question was only raised on appeal, and the Court of Appeal of the Commonwealth of the Bahamas had correctly rejected it.

The Board differed from the Court of Appeal on whether there was some evidence to support some of the requirements for a defence of duress ([57]-[58]), but agreed with that Court on one of the requirements, namely that there was no assertion in the defence evidence that there was no reasonable evasive action that the defendant could have taken to avoid the harm threatened ([68]).

The refusal to decide the common law point in this case is at [53], where the Board leaves it to a case in which duress arises on the facts.

Behind this refusal is, firstly, the recognition that counsel should not be made to do work that will be of no relevance to counsel’s case. What client would willingly pay their lawyer to research and argue an issue that could not assist in deciding the case? Similarly for publicly funded litigation. Counsel might be reluctant to take on appeals if there was a risk of having to futilely argue a cluster of complex issues that would only divert their time and energy unproductively. A second reason for the refusal to consider irrelevant points is that a proper factual context will assist in deciding what answer is supported by policy. The common law has developed piecemeal, working out case by case what is the reasonable answer to the issues that have to be decided in reaching a conclusion. But, you may say, couldn’t the Board in Moss simply have imagined that the defendant had had no reasonable opportunity to take evasive action? This might weaken the second reason for refusing to consider the point, but not the first.

But a third reason for refusal to consider points that have no basis in the facts of a case is more fundamental because it is constitutional. The courts refuse to trespass on what is properly the domain of the legislature. Courts decide the issues that arise between the parties to a case, the legislature addresses proactively broad matters of policy. This is not to say that the courts will decline to address hypotheticals in the course of examining the potential consequences of decisions on properly raised issues.

Police photography of people in public

The New Zealand Supreme Court has given leave to appeal, and, in effect, to cross-appeal, in Tamiefuna v R [2023] NZSC 93 (leave granted). The Court of Appeal decision is of great interest: Tamiefuna v R [2023] NZCA 163. I say no more in public (at least, not before the appeal has been determined, as it is sub judice). Save to say, it is about whether there is a right not to be photographed in public by the police when the photography is not in the course of an active investigation or enforcement need, and about the admissibility consequences in this case if the photography was a breach of the appellant’s right not to be photographed.

The plea of previous conviction

Speaking of sub judice, what has happened to the appeal in Mitchell v Police? The appeal was heard in the Supreme Court on 10 May 2022 (SC116/2021). From the Court’s Report on delivery of judgments for 2022 we can infer that this appeal is not considered to be unreasonably delayed, and that therefore the issues it has to resolve are complex. I have commented on the Court of Appeal decision here, on 23 September 2021. Very exciting.

Update: Mitchell has since been decided, as noted here on 11 August 2023.

How to instruct a jury in a criminal trial, and what is required for there to be a criminal organisation: R v Abdullahi, 2023 SCC 19

Judges who have to prepare directions to juries in criminal trials could be assisted by studying R v Abdullahi, 2023 SCC 19 (14 July 2023). The perspective is that of an appellate court, but the majority judgment of Rowe J with concurrence by Wagner CJ, Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ provides guidance for trial judges.

The essentials are summarised at [72], with the concept of a functional approach explained at [4], the underlying principles reiterated at [35], the requirement that the jury be properly equipped to decide the case explained at [37] (the jury must be both accurately and sufficiently instructed), the difference between mandatory and contingent instructions (at [48], [49]), and the importance of the context of the trial emphasised at [57].

This appeal also addresses the essential requirements for proof of the existence of a criminal organisation, with case law explaining that such an organisation (in contrast to, for example, a mere conspiracy [80]) to be “organised” must have both structure and continuity (see [76] ff). While the various circumstances of each case require flexible assessment, it is an error (as it was in this case) to take a flexible approach to the requirements of structure and continuity [81]. Improper reasoning can flow from this error ([84] ff). Here, the trial judge had failed to expand upon the statutory definition of criminal organisation by addressing the requirements of structure and continuity [89] and so had failed to properly equip the jury to decide the case.

It was on the issue of whether the judge had properly equipped the jury to decide the issue of whether the facts established the existence of a criminal organisation that Côté J dissented ([99]-[100]. Points of criticism of the majority’s categorisation of errors in jury instructions (eg at [107]) are rather weakened by the reality that this is a sole dissent in a court of final appeal.

Procedural delay: Morgan v R (Jamaica) [2023] UKPC 25 and Yikar v R [2023] NZCA 296

In law, you can’t gain an advantage from your own inexcusable procedural delay. The word inexcusable makes that obvious, but is there just to acknowledge that sometimes an understandable mistake may be made or circumstances may change.

Two recent cases illustrate this. The prosecution was not (ultimately) successful in opposing an application for leave to appeal out of time against sentence in Morgan v R (Jamaica) [2023] UKPC 25 (11 July 2023), and a late application for name suppression was an abuse of process in Yikar v R [2023] NZCA 296 (13 July 2023).

In Morgan, the delay was the fault of officials. It was significant that the proposed appeal apparently had merit, and it was incorrect on the particular facts to suggest that because the sentence had been served the issue was academic (at [69]-[72]). Nor did it assist the prosecution that through official error no record of the original sentencing remarks had been produced. At [73]:

“ … it would offend the basic principles of fairness that failures by the justice system, for which the appellant can bear no responsibility, should amount to a countervailing criterion in the exercise of discretion under the proviso to hear and determine an appeal. The Board considers that the Court of Appeal was in error when it concluded that a countervailing criterion was the justice system’s own failure to produce a record of the proceedings in the Resident Magistrate’s Court.”

Public interest also strongly favoured ventilating the errors in order to maintain public confidence in the justice system ([74]).

The decision whether to permit an out-of-time appeal against sentence was a discretionary matter, requiring factors for and against to be considered ([66]), including finality, merit, whether the issue is academic, the wider public interest, the period of delay and the extent to which the appellant was in default, and here there had been a serious miscarriage of justice. At [76]:

“… the Board sets aside the Court of Appeal’s exercise of its discretion and exercises the discretion afresh. In doing so the Board takes into account the following criteria, namely, (a) the appellant has a meritorious appeal against sentence; (b) the appellant has done everything reasonably possible to file his grounds for appeal with the Clerk of the Courts; (c) none of the delay can be attributed to the appellant; (d) the appeal is not “academic”, see paras 70-72 above; (e) the failure of the judicial system in not producing the Resident Magistrate’s Court record is not a criterion to be taken into account against hearing and determining the appeal, see para 73 above; and (f) the appeal is of general as well as particular significance, see para 74 above.”

I have suggested, in discussing Pierre v R (Bahamas) here on June 16, 2023, that late applications for leave to appeal against conviction should be addressed by focusing mainly on the question of merit. The wider approach, in which more factors are relevant to the exercise of the discretion to grant leave, seems more appropriate for appeals against sentence.

In Yikar, the late application for interim name suppression was, in context, an abuse of process for three reasons, stated at [25]. The factual background is fairly complex, but the Court usefully reviews the abuse of process doctrine at [21]-[24], including references to decisions of the House of Lords, the Privy Council, the Court of Appeal of England and Wales, as well as local decisions. Failing to take an opportunity to make the application, and attempting to gain a collateral advantage were, in the Court’s opinion, significant here.

Retrial after invalid conviction is not double jeopardy: Smith v United States 21-1576, 15 June 2023

It has long been recognised at common law that a trial held in the wrong location does not on that ground result in a verdict that can subsequently be the basis for a plea of previous acquittal or previous conviction: Smith v United States 21-1576, June 15, 2023. That common law dealt in the United States with the venue Clause, and this case deals with breach of the vicinage Clause.

If a trial is held without jurisdiction, there is no lawful determination of criminal culpability. Therefore, a subsequent trial, held lawfully, does not raise issues of double jeopardy. The usual rule is that a retrial is the remedy.

This is not to say that there are no difficult issues concerning whether a trial has been a nullity. There are dangers in making generalisations in the absence of factual contexts, as was observed in AJS v The Queen, noted here on 15 June 2007, and see Bounds v The Queen, noted here on 28 July 2006. Decisions of appellate courts grappling with the consequences of errors are often not unanimous (although Smith was a unanimous judgment, but Blueford v Arkansas, noted here on 26 May 2012, was not). The intention of the legislature in making a rule that has been broken should be determinative of the consequences: DPP v Penn (Virgin Islands), noted here on 13 May 2008. In Smith, breaches of the venue and vicinage clauses of the Constitution clearly pointed to nullity (although the Court did not use that word, instead putting the question as whether such breaches were exceptions to the rule that retrial is the appropriate remedy, and holding that, like the venue clause, the vicinage clause was not such an exception).

It may be possible for a defendant to waive a fundamental error at trial by knowingly acquiescing expressly or tacitly in the continuation of the trial: Ruddy v Procurator Fiscal [2006] UKPC D2 (Scotland), noted here 20 February 2006, while failure by a court official to sign an indictment has been held to result in a nullity: R v Clarke, noted here on 7 February 2008.

In Smith the result was plainly right: the appellant was asking the Court to hold that a conviction entered without jurisdiction could nevertheless support a plea of previous conviction.

Now, if you haven’t already done so, look up vicinage.

The interests of justice and time limits for filing conviction appeals: Pierre v R (Bahamas) [2023] UKPC 15

Legislation that leaves judges to decide an issue “in the interests of justice”, without any indication of what that means, can leave us wondering if there is any law involved in the decision process.

An example is a decision whether to extent the period in which a person may file an appeal against conviction, so as to override a statutory limitation (often 20 working days) on that period.

In the absence of statutory guidance, beyond referring to “the interests of justice”, it is for judges to work out in case law what that means. To the extent that such case law actually assists in the decision process, the decision is a matter of law. Otherwise, it is just a policy decision, at risk of being arbitrary and not law at all, even though made by judges.

The Privy Council has recently addressed this decision: Pierre v R (Bahamas) [2023] UKPC 15 (11 May 2023).

The decision whether to grant an extension of the period within which an appeal against conviction may be filed is a balancing exercise [28]. It is characterised by flexibility [29]. The ultimate question, whether extension is in the interests of justice [26], requires consideration of the overall justice of the case, taking into account the important public interest in the finality of legal proceedings, the efficient use of judicial resources, good administration, the interests of other litigants, the interests of victims and their families, and the interests of witnesses [27]. An extension of time should be granted if the appeal may expose an injustice, and each application will turn on its own facts and circumstances as the discretion is unfettered and extremely wide, and the interests of justice may require departure from legislated time limits [30].

All these matters are nebulous and don’t help to clarify what the threshold is for granting an extension of time to file an appeal against conviction. It is trite and unhelpful to say each case turns on its own facts and circumstances. In adding the various considerations to the interests of justice, the Board seems to have redefined what the interests of justice means, but without setting out that new meaning.

The expression “in the interests of justice” usually means in the interests of correctly deciding an issue according to law. The issue here is the conviction and its correctness in law. All that should matter when deciding whether an appeal should be heard is whether there is a reasonable prospect that the appeal will be successful. There are questions subsidiary to that, such as whether the arguments proposed to be advanced have previously been determined correctly, whether a legal point was overlooked or wrongly decided in the earlier proceedings, and whether any new evidence could cast doubt on the conviction.

It might be useful to look at legislation governing when a criminal cases review commission can refer a conviction to an appeal court. If such a reference is made, the appeal court must hear the appeal. Legislation may state that the governing criterion for the commission’s decision is the interests of justice, and specify some matters that must be taken into account.

An illustration is New Zealand’s Criminal Cases Review Commission Act 2019, s 17. The matters listed in s 17(2)(a)-(c) are helpful, but the addition of (d) “any other matter that the Commission considers relevant”, while serving as a sort of safety net to avoid excluding meritorious references arising from circumstances that can’t be predicted, could potentially have the unfortunate effect of allowing the Commission to refuse to refer a case on grounds that extend the meaning of “the interests of justice” to include the dreadful inertia of the justice system (the so-called interest in the finality of judicial proceedings), an apologetic reference to the inconvenience of diverting resources to the issue, and a simpering solicitousness for the supposed interests of victims and prosecution witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yes, but …

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

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

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

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

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

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

______________________________

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

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