Fairness and the right to cross-examine

Inability of the defence to cross-examine a prosecution witness may arise through anonymity or absence, but the accused's right to a fair trial remains absolute: Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110 (20 January 2009).

The Chamber held (34) that Article 6 § 3(d), the defendant's right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him",

"...is an aspect of the right to fair trial guaranteed by Article 6 § 1, which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument (Krasniki v. the Czech Republic, no. 51277/99, § 75, 28 February 2006). As with the other elements of Article 6 § 3, it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence. As minimum rights, the provisions of Article 6 § 3 constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick ... [[2005] EWCA Crim 651], as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, §§ 67 and 68, Series A no. 146; Kostovski v. the Netherlands, 20 November 1989, § 39, Series A no. 166). Equally, even where those minimum rights have been respected, the general right to a fair trial guaranteed by Article 6 § 1 requires that the Court ascertain whether the proceedings as a whole were fair."

Further (36):

"Whatever the reason for the defendant's inability to examine a witness, whether absence, anonymity or both, the starting point for the Court's assessment of whether there is a breach of Article 6 §§ 1 and 3(d) is set out in Lucà, ... [Lucà v. Italy, no. 33354/96, ECHR 2001], at § 40:

"If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 [references omitted].""

Naturally a court will do all it can to counterbalance the adverse effect on the defence of witness anonymity or unavailability. Other material witnesses may be available, there may be expert witnesses who can assist with credibility issues, and the judge may warn the jury of the need to treat with care evidence that had not been subjected to cross-examination. Even so, such measures are not able to overcome the unfairness that arises where a conviction is based solely or to a decisive extent on the evidence of a witness who has not been cross-examined (37):

""Even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements." [citing para 76 of Doorsonv. theNetherlands, judgment of 26 March 1996, Reports 1996 II]."

Here the Chamber found violations of Art 6 and awarded damages for the time the appellants had spent in prison.

Under the applicable domestic law here the critical criterion was the risk of unfairness that admission of the challenged evidence would give rise to. The evidence had been wrongly ruled admissible. What if the criterion for admission was the apparent reliability of the evidence? For example, what if the circumstances in which a hearsay statement was made were such as to present a reasonable assurance that it was a reliable statement? Would inability to cross-examine its maker give rise to unfairness if the statement was the sole or decisive evidence against the accused?

It is likely that a criterion for admission such as a reasonable assurance of reliability will be regarded as satisfying the requirement of fairness if, where it is met, it means that cross-examination could not have affected its probative value. See, for example R v Hovell [1987] 1 NZLR 610, (1987) 3 CRNZ 106 (CA), in which the police statement of an elderly rape complainant who had died before these proceedings was admitted to prove that there had been such an offence, committed by a person she could only vaguely describe. The description did not exclude the accused, but it was clear that if she had been asked whether the assailant was the accused she would only have been able to say she didn't know. The Court, with Cooke P (later, Lord Cooke) presiding, in a judgment delivered by Casey J, concluded that cross-examination here would not have made any relevant difference to her description of the assailant, and her hearsay statement was held to have been correctly ruled admissible. There could not, in this case, have realistically been any dispute over whether the rape had occurred as there was medical evidence corroborating the event and there was no reason why an elderly person should make a false assertion of that kind.

The absolute rule applied by the Strasbourg court is probably subject to an exception for cases where cross-examination could have no real effect; that issue did not arise for decision in the two (unrelated) cases that were jointly decided in Al-Khawaja and Tahery.

Update: Lord Brown has doubted that Al-Khawaja lays down an absolute rule: see his concurring judgment in R v Horncastle [2009] UKSC 14 (9 December 2009). This case, awaited by the Grand Chamber’s Panel before its consideration of the United Kingdom’s request that Al-Khawaja be referred to the Grand Chamber, addresses the different measures to ensure trial fairness as between the continental legal systems and the common law tradition (now reflected in statutory provisions) in relation to the admissibility of hearsay evidence. The issue is hugely important, as Lord Brown emphasises at 113:

“These appeals are of the utmost importance. If the Strasbourg case law does indeed establish an inflexible, unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to articles 6(1) and 6(3)(d) of the Convention, then the whole domestic scheme for ensuring fair trials – the scheme now enshrined (as to hearsay evidence) in the Criminal Justice Act 2003 and (as to anonymous evidence) in the Criminal Evidence (Witness Anonymity) Act 2008 – cannot stand and many guilty defendants will have to go free. It is difficult to suppose that the Strasbourg Court has in fact laid down so absolute a principle as this and, indeed, one exception to it, at least, appears to be acknowledged: the fairness of admitting hearsay evidence from a witness absent as a result of the defendant's own intimidation. But if this is recognised (and, as others have pointed out, this exception itself involves difficulties of proof) why not recognise other exceptions too provided only and always that the procedures honour the ultimate imperative of a fair trial? That, after all, is the overarching principle for which the great bulk of Strasbourg jurisprudence on article 6 stands.”

See also, R v Couture, blogged here 19 June 2007.

Another blow to legislated sentencing

The non-mandatory nature of the sentencing guidelines has been emphasised in Spears v United States [2009] USSC 21 January 2009.

In using the Guidelines to calculate the sentence for conspiracy to distribute cocaine, based on the quantity of drug involved in the particular offending, the District Court had held that the Guidelines yielded an excessive sentence. There was no other particular reason, arising from the facts of the case, to depart from the guidelines. However there were decisions of other courts which used criticisms of the Guidelines advanced by the Sentencing Commission as grounds for departing from the Guidelines. Referring to those, the District Court here imposed a sentence lower than the guideline range.

The Supreme Court upheld the District Court's approach:

" ... we now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines. Here, the District Court's choice of replacement ratio was based upon two well-reasoned decisions by other courts, which themselves reflected the Sentencing Commission's expert judgment ... See Perry, 389 F. Supp. 2d, at 307–308; Smith, 359 F. Supp. 2d, at 781–782; Report to Congress 106–107, App. A, pp. 3–6."

This is an application of Kimbrough v. United States, 552 U. S. ___ (2007) in which the Court had held that "under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only".

The guidelines have been amended (Nov 2007) after the District Court's decision in this case. Here are the current guidelines applicable to this offending. These strike one as being complicated. In any event, the judge would have to decide on a sentence independently of the guidelines in order to be able to say whether he should follow them. There is really no substitute for an assessment of the particular offending in its context and in the light of sentences passed in like cases. The likely financial gain obtained or expected from the offending can usually be assessed and is a means of comparing cases.

Roberts CJ, dissenting and joined by Alito J, would have placed form over substance and would thereby have created injustice for the appellant, the rationale – if one can call it that - being that this was not a suitable time to answer a "novel question".

Not a dies non blog

For a discussion of time limits for filing and serving extradition appeals in the UK, see Mucelli v Govt of Albania [2009] UKHL 2 (21 January 2009).

The phrase "dies non", used by Lord Neuberger at 84, prompts introspection. So much to do, so many dies nons. Indeed, part of the decision concerns the irritating habit (as I think of it) that the other side – whoever it may be - has of serving documents at the last possible moment.

Today is a virtual dies non in Auckland: next Monday is our anniversary holiday (celebrating the establishment of Auckland province) so today everyone is on "absent Friday".

This case illustrates the need for a uniform interpretation of extradition appeal time limits throughout the UK, so that from the various legislative contexts it emerges that filing includes serving, that the short time limits are for expeditious handling of cases and cannot – without express legislative permission – be extended by the courts, but at the same time they should not be read down. Filing by fax may be effected moments before midnight on the last day. Personal filing and service must be done before close of normal business hours where a business (or the court) is the recipient, but on dies nons (when the court office or the recipient's business office is closed all day) the time limit extends to the end of the next open day. [Update: for an example of the prosecution missing a deadline, see Attorney-General's Reference No 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009), para 42 per Lord Brown.]

As you can see, today is not a dies non blog.

The limits of legality

Does a decision to release on parole a prisoner serving a determinate sentence have to be made judicially? Is the judicial nature of the original sentencing process sufficient to carry forward to make acceptable an executive decision to refuse parole?

Not every legal system permits the executive to have input on the parole decision. It is not the sort of decision into which there can be legitimate political input: Lord Rodger and Lord Carswell in R(Black) v Secretary of State for Justice [2009] UKHL 1 (21 January 2009), at 50 and 58.

In this case the Secretary refused to accept the advice of the Parole Board and declined – pursuant to s 35 Criminal Justice Act 1991[UK] - to order the release of Mr Black on parole. Lord Brown at 65 placed this provision in its historical context.

Having had his application for judicial review of the Secretary's decision declined, Mr Black appealed to the Court of Appeal, which held that s 35 was incompatible with art 5(4) of the ECHR which provides:

"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."

As Lord Brown recognised at 59, several recent decisions of the Court of Appeal held that such parole decisions should be made judicially.

Mr Black's plan, of course, is to obtain a ruling of incompatibility so that the UK legislature will be encouraged to reform the law by removing the Secretary's role in the decision process. Surprisingly, Mr Black will now have to seek that ruling from the Strasbourg court, because the Law Lords allowed the Secretary's appeal in this case.

They did so by a majority of 4 to 1, Lord Phillips dissenting and Lord Carswell hesitatingly agreeing (58) with the majority.

Lord Carswell thought it significant that ECtHR jurisprudence had not extended to the point in issue here, although dicta on analogous points (cases of indeterminate sentences from Belgium and Norway, and cases on recall of paroled prisoners from Lithuania and the UK) recognised the significance of the term of imprisonment having been set judicially at sentencing.

Lord Brown reasoned that the risk that an executive decision would be arbitrary was addressed by the availability of judicial review in domestic law. Determinate sentences do not engage art 5(4), whereas indeterminate sentences do, and if there is to be any fusion that is a matter for the ECtHR to decide (81, 83).

Lord Rodger agreed with Lord Brown. He found that the cases established that, for determinate sentences, the original sentencing process satisfied the prisoner's right to have the lawfulness of his detention decided by a court. Domestic review proceedings could be taken to check the lawfulness of the Secretary's refusal to order release. Even if that refusal was unlawful, the remedy was for the Secretary to reconsider the question and decide it lawfully (48).

Baroness Hale agreed with both Lord Rodger and Lord Brown, without giving separate reasons.

Lord Phillips, dissenting, declined to regard the lawfulness of the detention of a prisoner on a determinate sentence as having been determined at the sentencing, where there was subsequently an opportunity for release on parole (4). At that point the legality of the continued detention was a justiciable issue. He found there was "no great leap of reasoning" required to apply to determinate sentences the Strasbourg approach to indeterminate sentences (10), and his analysis of House of Lords dicta supported that conclusion.

It is difficult to see what useful role the Secretary could have in this decision structure. Given that his decision is subject to judicial review, it must be a reasonable decision. The criteria for release will usually focus on whether the offender poses any risk to the community or to the safety of any person. If the Secretary has any information on that he should pass it to the Parole Board. The Board is required to make reasonable decisions, although its function is not judicial.

There are other occasions where thinly-disguised political input is permitted on decisions on the release of potentially dangerous people. See, for example, Criminal Procedure (Mentally Impaired Persons) Act 2003[NZ], s 33(3).

Well, art 5(4) does not say that the lawfulness of detention can only be checked once. But on the other hand, there is a difference between the lawfulness of detention and the appropriateness of detention. If legislation provides that a prisoner shall be released on parole unless certain facts exist (a risk to society, etc), then it is arguable that the lawfulness of continued detention is amenable to judicial scrutiny. But if legislation provides that a prisoner may be released on parole if he satisfies the Board that no such facts exist, then it is arguable that his continued detention is lawful and there is no occasion to scrutinise its legality. In the present case, the legislation distinguished between a duty to release certain prisoners, and a power to release others. Mr Black was in the latter group. On this basis the majority decision may be correct. The anomaly remains: a long-term determinate sentence prisoner may come to be considered for parole after serving the same time as an indeterminate sentence prisoner. Why should they be in different positions concerning who decides on their release? And why should the prisoner who, years ago, merited an indeterminate sentence, be in a better position as far as access to a judicial determination is concerned?

Disclosure at common law: third party status of police

In R v McNeil [2009] SCC 3 (16 January 2009) the Supreme Court of Canada, in a unanimous judgment delivered by Charron J, addressed the disclosure obligations which apply at common law to the Crown and to the police. Of particular interest is the potentially difficult bridging of the information gap that may exist between the Crown and the police. Is the prosecutor obliged to make inquiries of the police for all information that could be relevant to the defence? Are the police obliged to volunteer such information to the prosecutor?

The Court refrained from laying down specific rules, but stated principles.

In this case (where the point was moot as the Court of Appeal had set aside the convictions and the Crown undertook not to re-prosecute Mr McNeil, but the Supreme Court appointed an amicus curiae to argue the issue) the arresting police officer – the Crown's main witness - had been subject to a police investigation concerning drug-related misconduct which had culminated in disciplinary proceedings and a plea of guilty to a criminal charge. At the time of Mr McNeil's trial the police had a file concerning the disciplinary proceedings against, and criminal investigation of, the arresting officer.

The Supreme Court held (53) that the police have a duty to disclose to the Crown prosecutor disciplinary procedure information where it is relevant and its discovery should not be left to happenstance. In deciding relevance the police may well be advised to seek the assistance of Crown counsel (59). The issue was not to be decided by reference to whether there was any reasonable expectation of privacy (11) [in this regard, contrast s 29(3)(c) Criminal Disclosure Act 2008[NZ] – not yet in force].

The police and Crown's duty of disclosure to the defence of fruits of the investigation was established in R v Stinchcombe [1991] 3 SCR 326.

There are some shortcomings in the above New Zealand legislation which become apparent when McNeil is considered. The Criminal Disclosure Act 2008 does not put an obligation on the Crown to seek information from the police (s 15), and it only requires relevant convictions known to the prosecutor to be disclosed (s 13(3)(d)). I have previously commented on the "wide rule/wide request/fairly wide enforceability" structure of this legislation: see blog on McDonald v HM Advocate [2008] UKPC 46, 21 October 2008.

The guidance set out in McNeil can be compared with the approach to claims of public interest immunity laid down in R v H [2004] UKHL 3, where the primary and essential requirement is trial fairness to the accused.

Reviving lost causes

Scalia J's dissent (joined by Roberts CJ and Souter and Thomas JJ) in Oregon v Ice [2009] USSC 14 January 2009 raises again the question of whether judges who have previously dissented should subsequently obey the law and not repeat their dissent in a later case on the same point. This question was considered here in relation to Young v United Kingdom (blogged 19 January 2007).

Oregon v Ice concerns the determination of facts necessary to support the imposition of consecutive sentences of imprisonment. The Supreme Court has recently established, by a majority, the rule that any such fact other than a previous conviction must be admitted by the defendant or found beyond reasonable doubt by a jury: Apprendi v. New Jersey, 530 U. S. 466 (2000), applied in United States v. Booker, 543 U. S. 220, 232 (2005). However in Ice the majority held that facts, outside those necessary for the determination of guilt on a particular charge, necessary for the imposition of consecutive sentences, are for the judge to determine.

As Scalia J pointed out, this is a distinction-without-a-difference; there is

"...no room for a formalistic distinction between facts bearing on the number of years of imprisonment that a defendant will serve for one count (subject to the rule of Apprendi) and facts bearing on how many years will be served in total (now not subject to Apprendi)."

He criticises the majority for relying on "the very same" arguments that the Court had rejected in previous cases. These included the difficulties that would arise from the multiplicity of issues that may need to be considered and the number of hearings that may be required. But,

"...That is another déjà vu and déjà rejeté; we have watched it parade past before, in several of our Apprendi-related opinions, and have not saluted. See Blakely, [Blakely v. Washington, 542 U. S. 296 (2004)] at 336–337 (BREYER, J., dissenting); Apprendi, ... at 557 (same)."

I have previously (26 July 2007) noted Lord Hoffmann's upholding of the majority view in a case in which he had dissented (Cartwright v Superintendent of HM Prison [2004] UKPC 10) when the same point came to be considered in Gibson v USA (The Bahamas) [2007] UKPC 52 – even though in so upholding the majority in Cartwright in Gibson he was in the minority again. Dissenting can certainly lead to problems. No doubt Scalia J has never adhered, and never will adhere, to his own dissents.

Now that Scalia J has failed to convince the majority of the Court that arguments previously rejected should not be revived, his own contention that that is the position must – by his own reasoning – itself be rejected. Otherwise – to pick just one example seemingly at random - an originalist approach to Constitutional interpretation would have to be rejected immediately after it failed to find majority acceptance. And – another example – review of Roe v Wade would not be possible.

Just over 20 years ago, after at least 15 years of agonising by generations of law students over whether impossibility is a defence to charges of attempt or conspiracy, the House of Lords rapidly reversed itself on this point: Anderton v Ryan [1985] AC 560, R v Shivpuri [1986] 2 All ER 334. Glanville Williams had roundly criticised Anderton v Ryan in "The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?" [1986] CLJ 33. It would be wrong to reject all possibility of rethinking weak decisions. But, subject to exceptional cases where reasoning has gone astray, or where policy can clearly be seen to have changed, judges of even the most senior courts should obey the law.

Should negligence be misconduct?

In Herring v United States [2009] USSC 14 January 2009 the majority (5-4) held that the basis for exclusion of evidence obtained in breach of the Fourth Amendment (the right not to be subjected to unreasonable search or seizure) is deterrence of official misconduct.

Prior to that decision reasons other than deterrence could have been advanced for exclusion of wrongfully obtained evidence. These were mentioned in the leading dissenting opinion of Ginsburg J: the need to constrain state power, to avoid taint to the judiciary from a perception of partnership in official lawlessness, to avoid undermining popular trust in government, to withhold constitutional approval of misconduct, to maintain respect for the law, and to provide the only practical remedy for official impropriety.

But no, held Roberts CJ, joined by Scalia, Kennedy, Thomas and Alito JJ. If deterrence would not be effective there is no point in excluding evidence: the benefits of deterrence must outweigh the costs of excluding the evidence. These costs are the price paid by the justice system in allowing the particular offender to go free:

"To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence."

In Herring the police mistakenly believed that there was in existence a warrant to arrest Mr Herring. That belief arose from a check on the database maintained by the local police. Before a copy of the warrant could be faxed to them, officers arrested and searched Mr Herring, finding drugs and a gun he was not entitled to possess. Within a few minutes the staff at the station realised that, as they could not locate the paper copy of the warrant their database must have been in error, so the arresting officers were informed. The evidence had already been discovered.

Was this a slight error arising from the system in place at the relevant station not being operated efficiently? The majority held that it was. There was no flagrant and deliberate disregard of Mr Herring's constitutional rights that would have been necessary to trigger the need for the deterrent response of exclusion of the evidence.

The minority strongly dissented on this point. Ginsburg J emphasised the need for computerised systems to be efficiently maintained in order to protect innocent people from this sort of conduct:

"Inaccuracies in expansive, interconnected collections of electronic information raise grave concerns for individual liberty. "The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base" is evocative of the use of general warrants that so outraged the authors of our Bill of Rights. Evans, 514 U. S., at 23 (STEVENS, J., dissenting)."

She disagreed with the majority argument that deterrence would not be effective against conduct that is merely negligent, pointing out that the law of torts is based on the assumption that liability for negligence will make people more careful.

There was no evidence that in this case the systemic errors were ingrained and frequent, and Roberts CJ regarded it as significant that they were not routine or widespread. If they were, deterrence would have been necessary on the basis that the misconduct had graduated from negligence to recklessness:

"If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation."

So, apparently widespread negligence would not call for deterrence unless it could be reclassified as recklessness.

In computerised databases errors can easily become widespread. False information about one person can become available to a large number of officials. There are good policy reasons for imposing on such a potentially error-prone system the safeguard of deterrence of negligent administration. Certainly it is appropriate to assess the circumstances of each case and to weigh the seriousness of the official misconduct against the public interest in admitting the wrongfully obtained evidence, but it seems to be wrong to impose a rule that negligent errors do not count as official misconduct.

Herring marks a significant departure from the Katz v United States, 389 U.S. 347 (1967) focus on privacy interests. Like anyone who did not have a warrant out for his arrest, Mr Herring had, one would have thought on the basis of Katz, a reasonable expectation of privacy in relation to his person and his vehicle, at the time of his wrongful arrest. It was insufficient to justify the unauthorised interceptions in Katz that the Government’s agents acted in good faith and circumscribed their activities to the minimum they considered necessary, and the interceptions where held to amount to a bypassing of a neutral predetermination of the scope of the search which left the police to determine the scope of the Fourth Amendment protection. So too in Herring, the absence of a warrant to arrest him meant that the police, albeit innocently, determined – and terminated – his constitutional protection. Acting in good faith can hardly be a reason to admit wrongfully obtained evidence, because the police are expected always to act in good faith. Katz was not referred to in Herring. The breach of the privacy right in Herring was serious. That is not to say that the Court was wrong to rule the evidence admissible, because the balancing of this breach (measured as a breach of privacy) against the cost to the enforcement of the law might still have supported that result. The focus on the police misconduct was a very small part of the whole picture.

Haunted by the past

One way of getting a longer prison sentence than is warranted by a present offence is to have a bad record of previous criminality.

Sometimes statutory sentencing regimes spell this out. One approach is to exhaustively list the prior offences that will serve to increase a subsequent sentence, and to require courts to apply that list regardless of the particular facts that gave rise to earlier convictions. Another statutory approach is to state the quality of previous offending that will increase a subsequent sentence.

This latter approach came under scrutiny in Chambers v United States [2009] USSC 13 January 2009.

Here, the present offending received an increased sentence if the previous offending included a specified number of offences that were defined as violent felonies because they, inter alia (to mention only the critical point in this case) were

"... burglary, arson, or extortion, involve[d] the use of explosives, or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another"

(Armed Career Criminal Act 18 U.S.C. section 924(e)(2)(B)(ii); this is referred to as the residual clause).

The question was whether a previous conviction for failing to report for weekend imprisonment counted as a "violent felony". The lower courts had held that failure to report was a form of escape from a penal institution, and was therefore a violent felony because of the risk of harm posed by the aggressive behaviour of escape. The Supreme Court disagreed.

This required Breyer J (delivering the opinion of the Court in which Roberts CJ, Stevens, Scalia, Kennedy, Souter and Ginsburg JJ joined), to distinguish the established approach of characterising previous offending by type of offence without reference to particular facts, from the process of determining whether a previous instance of offending fell within a specified type of offence. This latter required reference not just to the way offences were grouped in the statute that created them, but to the characteristics of the particular definitions within such a group. Here, failure to report was grouped in the relevant statute with escaping from custody. But failure to report was a form of inaction, not having the aggressive quality of escaping:

"The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody."

Furthermore, there was no significant evidence that a non-reported would pose a risk of violence:

"The offender's aversion to penal custody, even if special, is beside the point. The question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a "serious potential risk of physical injury.""

Therefore the previous conviction did not count towards qualification for an increased sentence in this case.

Justice Alito, with Thomas J concurring, agreed in the result but called on Congress to create a specific list of defined crimes that are deemed worthy of attracting the sentencing enhancement.

"ACCA's residual clause is nearly impossible to apply consistently. Indeed, the "categorical approach" to predicate offenses has created numerous splits among the lower federal courts, ... the resolution of which could occupy this Court for years. What is worse is that each new application of the residual clause seems to lead us further and further away from the statutory text. Today's decision, for example, turns on little more than a statistical analysis of a research report prepared by the United States Sentencing Commission." [footnote omitted]

Plainly there is a need to avoid the sentencing courts having to make detailed inquiries into the significance of instances of prior offending, while at the same time providing a categorical approach that will deal appropriately with individual offences. In Chambers the present offence (being a felon in possession of a firearm) would have attracted a minimum sentence of 15 years' imprisonment if the prior offending qualified. That would – had the views of the lower courts prevailed – have given enormous significance to the offender's failure to report for weekend detention (he had failed to report for four weekends out of an eleven weekend sentence which had been imposed for a robbery and battery offence which itself qualified to be included in the present calculation). The Court does not say what sentence Mr Chambers received for the failure to report.

There are easier ways of sentencing recidivists. One is to leave it to the judges, but as politicians can gain votes by promoting harshness it is inevitable that legislators will intervene. Some jurists favour this. Such intervention could be by reference to previous sentences of imprisonment as criteria for increasing subsequent sentences. That approach avoids the difficulty of classifying offences.

Restoring pendency

Jimenez v Quarterman [2009] USSC 13 January 2009 is a narrow decision in which the plain meaning of statutory language is applied to determine when time for federal proceedings arising from a state conviction begins to run.

Sometimes the language used by a foreign court points to a concise way of expressing an idea. In this case the Court, in a unanimous opinion delivered by Thomas J, used the word "pendency". Here, a conviction had been entered and the time for appeal against it had expired. Later, the appellate court granted leave to appeal out of time. Had the conviction been final before the appellate court granted that leave? Yes. And after the appellate court granted leave to appeal out of time, was the conviction final? Clearly not, as an appeal was pending.

Normally we say that the appeal is pending, and that the conviction is subject to an appeal. Here the Court said the grant of leave to appeal restored the pendency of the conviction.

The Court interpreted section 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act 1996, which defines when a conviction is final, in a way that was consistent with the settled understanding in this context. Time for commencement of federal review proceedings begins to run when the state proceedings – including those where leave to appeal out of time has been granted - have concluded.

So, a common sense result. Enough to restore the pendency of one's disenchantment?

Getting on with it

Does either party, prosecution or defence, have an obligation to find the quickest way through the legal labyrinth?

The defence may complain of breach of the right to trial within a reasonable time, although in the course of the proceedings it took such legal objections as were available to it (eg objections based on lack of jurisdiction). Is the defence to blame for the time taken up in deciding such issues?

The defence might agree to a course that is not the quickest. For example, it may agree to have an issue of confiscation decided by the trial judge rather than the most immediately available judge. Or it may fail to seek severance from a co-defendant, when severance could have led to quicker resolution. Is the defence to blame for these sorts of delay?

If the state has done all it can to expedite proceedings, does that render all delay reasonable?

In Bullen and Soneji v United Kingdom [2009] ECHR 28 (8 January 2009) the Chamber applied (58) its established approach of assessing reasonableness of delay by reference to the complexity of the case, the conduct of the parties, and what was at stake for the defendant. These were confiscation proceedings, and were to be treated for this purpose as analogous to sentencing (applying Crowther v. United Kingdom, no. 53741/00, §§ 24 and 25, 1 February 2005).

Here the jurisdictional point had been particularly difficult, and the House of Lords had overruled the Court of Appeal. The Chamber summarises the House of Lords reasoning at 30. It was not a point that needed to be considered by the Chamber, but essentially it concerned the consequences of a statutory limitation on commencement of confiscation proceedings, and the distinction between mandatory and directory requirements, and between (for the latter) purely regulatory directory requirements (where breach never invalidates subsequent action) and other directory requirements (where the consequences of breach depend on whether there was substantial compliance with the requirement).

The Chamber held (62) that neither party was to blame for the appeal delay in this case.

The defendants could not be criticised for agreeing to have the trial judge determine the confiscation issue (64), and failure by the defendants to press for early determination or to seek severance did not absolve the state from its obligation to deal with cases within a reasonable time (65, citing Crowther, above). The defendants could not be blamed for the time it took judges to hear the confiscation argument and to reach decisions, or for the time between the lodging of the appeal to the Court of Appeal and delivery of that Court's decision (67, 68). The Chamber also noted (at 69, and seemingly in contradiction to para 62) the two year delay between the Court of Appeal's certification of the point of appeal and the House of Lord's judgment on that appeal. This latter may be an illustration of the kind of delay for which the state will not normally be responsible unless – as apparently here – the delay was inherently unreasonable.

The apparent contradiction between paras 62 and 69 disappears once it is remembered that it is not only the parties who are involved: the state is responsible for compliance with the defendant's right to a hearing within a reasonable time.

The Chamber noted that what was at stake for the defendants was serious (70): further imprisonment in default of payment of substantial sums, after the sentences of imprisonment had been served, and over 5 years since the convictions were entered, where payment was more difficult that it would have been without the delay.

The delay here was held to have been in breach of the art 6§1 right to a hearing within a reasonable time. An argument that the proceedings were unfair was dismissed.

Rational driving

Anyone using the roads these holidays will be pleased with the Supreme Court's decision in Aylwin v Police [2008] NZSC 113 (19 December 2008). Some people who will be caught driving with excess breath or blood alcohol levels will be displeased that unmeritorious and technical defences are disappearing, but the huge majority enter pleas of guilty at an early stage and accept responsibility.

There were two offences in Aylwin: failing to accompany an officer (s 59(1)(b) Land Transport Act 1998), and driving with excess breath alcohol (s 56(1)).

On the failing to accompany charge, a point of general interest was made. The defence had not challenged the witness's evidence that the breath screening test and the evidential breath test had been carried out properly so as to bring them within the statutory definitions of those tests. At the time of the defended hearing the Evidence Act 2006 was not in force, but the Supreme Court, upholding the Court of Appeal, held that unless challenged by the defence the witness's evidence that the tests were carried out is sufficient proof that they were. One would have expected the rule in Browne and Dunn to have applied, but in any event s 92 of the Evidence Act 2006 now requires cross-examination on "significant matters that are relevant and in issue".

It was open to the defence, on the failing to accompany charge, to cross-examine on whether the procedures that had occurred complied with the requirements of the definitions of the tests. The defence could, as always, advance any allegation of bad faith if the circumstances warranted that.

The excess alcohol charge was different in that errors in carrying out the breath tests are rendered irrelevant by s 64(4) and (5), so that the prosecution need only establish (para 14 of the Supreme Court judgment):

(a) The fact that a breath screening test was conducted;

(b) The fact that an evidential breath test was conducted;

(c) The results of these tests; and

(d) That [the defendant] was advised of his right to have a blood test.

As protection against errors in the breath testing procedure (whether human error or machine error), the person can elect to have a blood sample taken for analysis (para 11, referring to s 70A). The defence could still allege bad faith, but on the present facts there was no suggestion of bad faith.

There is no mention here of the right to legal advice that a person has during the testing procedures, which arises because of the element of detention necessarily inherent in the process. Breach of that right remains a matter relevant to the admissibility of the evidence of the result of the testing – whether of breath or blood - and this will be determined by the s 30 Evidence Act 2006 balancing exercise.

The judgment does not elaborate what challenges may be made to points (a) and (b) above, other than to mention bad faith. If the defence took issue with whether what was done amounted to, for example, an evidential breath test, then - given that errors in carrying out the test don't count - attention would focus on whether the device used was an approved device. A challenge based on bad faith would be directed at disputing the witness's honesty.

Degrees of forgery

Judges don't always agree that a given statutory text coincides with its purpose. In Li v R [2008] NZSC 114 (19 December 2008) the majority of four judges held that text and purpose coincided, while the Chief Justice dissented. The text was s 256(1) of the Crimes Act 1961[NZ], which defines an offence of forgery:

"Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration."

Here the appellant had been convicted on counts of making false certificates of qualifications and selling them to people who knew they were false documents.

The majority held that this wording was clear and that there was no need for an intent to deceive the person who provides the payment. This places on an equal footing, as far as maximum penalty is concerned, those who make a false document intending to obtain valuable consideration with those who use such a document to obtain such consideration (s 257(1)(a)). The act of selling the false document to a knowing recipient is a making use of the falsity of the document if the seller knows that it will be used deceptively (69). This contrasts with an innocent copying, of a famous picture for example, where the maker believes the purchaser has no intention of using it deceptively (joint judgment at 67, and Elias CJ at 53).

How could anything be more simple, you might wonder. On what basis could the Chief Justice dissent?

She found (4) it difficult to construe the section – a sure sign, I suggest, that something is about to go wrong. She didn't like the idea that this serious offence could be committed without deceiving the purchaser of the false document. The majority at 52-53 explain why that is not a bad thing.

Central to Elias CJ's approach is a perception of reduced culpability on the part of those who do not deceive their purchasers (30, 41), but the joint judgment sees no such distinction (53). Elias CJ considers that on the majority's approach it was sufficient for the judge to direct the jury that an intention to sell the document to a person who was not deceived would be sufficient for liability (39), but that is not the entirety of the majority's conclusion (69) which recognises that the judge's direction may technically have been incomplete in its omission of a need for proof that the accused intended the purchaser to use the document deceptively.

The appellant had made a concession (apparently in pleadings, not mentioned in argument) that destroyed her opportunity for a retrial. She had acknowledged that she should have been convicted of a lesser offence (s 256(2)). However, as the majority pointed out, that acknowledgement cured any defect in the judge's direction (69) and her appeal was dismissed.

Kingdom or country?

For discussion of when time begins to run in relation to the right to be tried within a reasonable time, see Burns v HM Advocate [2008] UKPC 63 (15 December 2008). The fact that a decision is made to hold the trial in another country (here, Scotland) does not mean that time runs from when proceedings are initiated in that country if the accused person has previously been told by officials in one country (here, England) he will be charged.

Given that time ran from when the appellant was first informed he would be charged, the question of whether the delay was unreasonable and if so what was the appropriate remedy was left to be decided after the trial, applying Spiers v Ruddy [2007] UKPC D2.

It was appropriate to view the events as a continuum (Lord Rodger at 24) and to look at substance rather than form (Lady Cosgrove at 52). Delay is to be assessed from the defendant's perspective (26, 46). Ordinary people will be unaware of jurisdictional subtleties (54) and the obligations under the Convention are incurred by the United Kingdom; the governing consideration is not how the UK arranges its internal jurisdictional matters (27).

On when a person is charged, Lord Bingham's dicta in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, 91, paras 27-28 were applied (15). All the circumstances must be considered, but

"As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him."

The implications of deeming

What are the implications of the phrase "A discharge under this section shall be deemed to be an acquittal": s 347(4) Crimes Act 1961[NZ]?

Does it imply that there should be deemed to have been a verdict of not guilty? And that evidence had been adduced that was sufficient for a fact finder (jury usually) to consider? And that the evidence that the prosecution had adduced at this notional trial had been the strongest that had been anticipated on the basis of pre-trial proceedings?

Or does it simply mean that when the judge told the accused "You are discharged" he meant "You are found not guilty without the need for a trial"?

A difference in understanding of the meaning of "deemed" in this context, where its implications for the special plea of previous acquittal (s 358(1)) had to be determined, was the basis for a difference of opinion in the New Zealand Court of Appeal: R v Taylor [2008] NZCA 558 (17 December 2008).

The majority (Chambers and Panckhurst JJ) in separate judgments placed slightly different emphasis on grounds for their conclusion that where s 358(1) mentions a "former trial" it means an actual trial, not a notional trial that was deemed by s 347(4) to have occurred.

Chambers J at 39 set out his reasons for declining to give "former trial" an expansive meaning. Each of these may, with respect, be challenged. He said an expansive meaning would strain the wording of the subsection, that he didn't know how the subsection should be re-written, that the same expanded meaning would have to apply in s 358(2) and 359(3), so that and revision of the law would have to be legislative. In answer to those propositions it could be said that there is no straining other than that required by the deeming provision, that no rewriting is required, and that the phrase "former trial" need not have the same meaning every time it is used but can take its meaning from its context.

Panckhurst J focused on the common law origins of the legislative provisions on the special pleas, holding (116) that there is an underlying requirement of jeopardy of conviction. Consequently, "former trial" means an occasion on which the accused was at risk of conviction (117), and that a deemed acquittal does not trump the requirement of actual jeopardy (123).

That, of course, assumes that the legislature did not intend to deem a former trial to have occurred.

Fogarty J dissented on this point. He held (134 – 138) that the deeming provision should not be read down, but instead should be given a liberal interpretation so as to mean that there was deemed to have been a trial prior to the proceedings at which the special plea is made. Parliament intended that a discharge under s 347 should carry all the benefits of an acquittal (139). This removes any apparent inconsistency between the sections (141).

There are attractions in the reasoning of the dissent. An interpretation that avoids legislative inconsistency is preferable to one that requires the legislators who enacted the Crimes Act 1961 to be thought of as fools whose efforts were "curious and archaic" (25).

No doubt the unsuccessful (self-represented) appellant will be drafting his application for leave to appeal to the Supreme Court. On the assumption that these proceedings are not yet at an end, I say no more.

[Update: the Supreme Court refused leave to appeal: Taylor v R [2009] NZSC 45 (15 May 2009), saying that "whatever may be the answer to the s 347 point" the proposed appeal had no prospect of success because the offences were not sufficiently similar to permit the plea of previous acquittal on the facts.]

Don’t mention rights ...

Just a note on reverse onus provisions and when the legal burden is appropriate instead of merely an evidential burden: R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73 (10 December 2008).

Lord Hope, with whom the other Law Lords agreed, said at 28:

"Section 40 [of the Health and Safety at Work etc Act 1974] imposes a reverse burden of proof on the employer. In Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264, para 21 Lord Bingham of Cornhill said that the justifiability of any infringement of the presumption of any innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. In para 30 he drew attention to the difference between the subject matter in R v Lambert [2001] UKHL 37; [2002] 2 AC 545 on the one hand, where it was held that the imposition of a legal burden on the defendant undermined the presumption of innocence, and R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736 on the other, where it was held that there were compelling reasons why there should be a legal burden. In the former case, where section 28 of the Misuse of Drugs Act 1971 was in issue, a defendant might be entirely ignorant of what he was carrying. In the latter, offences under section 92 of the Trade Marks Act 1994 are committed by dealers, traders and market operators who could reasonably be expected to exercise some care about the provenance of goods in which they deal. It seems to me that the situation in which the reverse burden imposed by section 40 arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility."

This direct – almost casual – approach to deciding the appropriate standard on reverse onus is refreshing in comparison to the intricate exercise that bills of rights seem to require, culminating in a balancing of rights to see if there is an infringement and, if there is, a determination of what limitations are justified in a free and democratic society.

Absolute or relative inhumanity

As recently as 18 March 1789 Catherine Murphy was burnt at the stake at Newgate, although locals regarded this event distastefully. Her death did not attract a crowd like that of the 20,000 who witnessed the burning of Elizabeth Herring at Tyburn on 13 September 1773. The method of Catherine's execution (for clipping coins) shows traces of humanity:

"Catherine Murphy's execution was to be the last burning of a woman in England and was really was only a modified form of hanging, followed by burning. She was led from the Debtor's Door of Newgate past the nearby gallows from which 4 men, including her husband, were already hanging, to the stake. Here she mounted a small platform in front of it and an iron band was put round her body. The noose, dangling from an iron bracket projecting from the top of the stake, was tightened around her neck. When the preparations were complete, William Brunskill, the hangman, removed the platform leaving her suspended and only after 30 minutes were the faggots placed around her and lit."

Is inhuman or degrading punishment a relative, or an absolute, concept? What seems fine to us might be abhorrent in another culture. Or, putting it the other way, should we condemn as inhuman the practices of another culture merely because we would call them so?

There must be many people in cultures not dissimilar to the English who approve of the death penalty. Examples of executions by lethal injection may be cited as illustrations of humanity, not unlike the act of kindness that pet owners may have to authorise. Far more terrible may, in the minds of such people, be the locking of a person in a cage-like cell for the rest of his life, perhaps several decades. Even opponents of the death penalty may not protest very loudly when those who commit hideous crimes are executed in jurisdictions where that is lawful. Absolute opposition may, in such cases, tend to be softened by relativist views.

In R (on the Application of Wellington) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008) the issue was whether extradition of the applicant to Missouri, where he was wanted for trial for two murders, would breach article 3 of the ECHR, the right not to be subjected to inhuman or degrading punishment, where if convicted he would be sentenced to life imprisonment without the possibility of release.

Three of the judges were relativists: Lord Hoffmann (para 27), Baroness Hale (48) and Lord Carswell (57). The absolutists were Lord Scott (40) and Lord Brown (86).

The relativist approach does not simply adopt as legitimate the punishments that are lawful in the foreign jurisdiction. There would be a breach of article 3 if extradition would give rise to a real risk of a punishment that "shocked the conscience" (Lord Hoffmann at 32, citing Ferras v United States) or would be clearly or grossly or obviously disproportionate (35 - 36). The point about relativism is that what might seem unacceptable in the UK may nevertheless be acceptable in the context of the foreign culture. The example cited was the prison practice of "slopping out" – making prisoners empty their own chamber pots: this had been held, by the Court of Session, to be inhuman in Scotland, whereas Lord Hoffmann pointed out that it might be normal in countries "where people who are not in prison often have to make do without flush lavatories" (27).

Underlying the relativist approach is the policy of preventing those accused of serious crimes from obtaining a refuge from justice – by resisting extradition – simply because their crimes deserved severe punishment. Baroness Hale (at 50, 51) referred to para 89 and 100 of Soering v United Kingdom (1989) 11 EHRR 439 in support of the view that all the circumstances of the particular case must be assessed in evaluating whether a likely punishment would be inhumane because the penalty must be relative, or proportionate, to the offence. Concluding that here extradition would not breach of article 3, she added (53):

"There are many justifications for subjecting a wrongdoer to a life in prison. It is not for us to impose a particular philosophy of punishment upon other countries."

Lord Carswell, the third relativist, also cited para 89 of Soering. He drew the following from Strasbourg jurisprudence (58):

"It has been held in Chahal and in Saadi v Italy (2008, Application no 37201/06, BAILII: [2008] ECHR 179 ) that the risks to the expelling state if such a person is not deported cannot be weighed against the risk of his ill-treatment in the receiving state: Saadi, para 138. If it is established that that ill-treatment would amount to torture or inhuman or degrading treatment, the prohibition is absolute: ibid, para 127. The passage which I have quoted from the judgment in Soering demonstrates that in extradition cases considerations founded upon the importance of extradition may legitimately be taken into account in determining whether the alleged offender's treatment would attain the minimum level of severity which would constitute inhuman or degrading treatment, an assessment which is relative: Saadi, para 134."

Saadi is blogged here: see entry for 25 July 2008.

I'm not sure that Lord Carswell is clarifying the point by citation of Saadi. One of the justifications for a severe sentence may be the need to protect society. The need to protect the UK cannot be a justification for concluding that the likely foreign sentence would not be inhuman: Saadi. It is the need to protect the foreign society that may justify the sentence likely to be imposed by that society. But the offender is resisting efforts to return him to that society. There may be cases where that reasoning makes sense (he might pose a risk to the foreign society from his base in the UK) but that was not the situation here. Any risk posed by the appellant to the UK was irrelevant to whether his sentence in Missouri would be inhumane, and while in the UK he posed no risk to Missouri.

Be that as it may, the relativist position can be summarised as, up to the point where we would regard a foreign sentence as unconscionable, what might be regarded as inhuman here may not be inhuman over there. It helps in understanding this to keep in mind the "slopping out" example. The weakness in the relativist position is shown by Lord Hoffmann's indication that he is not necessarily convinced that the "slopping out" illustration is a good one (27): "Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion."

The trouble is that once you find an example of something that really would be inhuman treatment in the domestic jurisdiction, you should say it would be inhuman anywhere. This is the absolutist position of Lords Scott and Brown. Indeed, Lord Brown says this very thing at 88. The absolute position does have some awkwardness, because it purports not to impose Convention standards on other countries (86). Lord Scott seeks to avoid the difficulty by suggesting, at 42, that article 3 prescribes minimum standards, not norms, so that while "slopping out" may be below the norms acceptable in Scotland, that does not mean it is a breach of article 3.

All judges agreed that the likely punishment in Missouri was not inhuman and that in the circumstances of this case extradition would not involve a breach of article 3 of the Convention.

Strange to say, the Law Lords did not refer to their decision in R v Secretary of State for the Home Department, ex p Adam, blogged here 7 November 2005, in which the same right was held to be absolute.

DNA record retention

Retention by the police of information about a suspect can be a breach of the suspect's right to privacy: S and Marper v United Kingdom [2008] ECHR 1581 (4 December 2008).

This case concerns fingerprints and DNA samples taken by the police. Neither of the applicants was convicted and both requested destruction of these records. The police refused.

The Grand Chamber held that retention of the information in such circumstances was a breach of the applicants' rights to privacy and that vindication was achieved by the Court's finding of a violation in view of the resulting obligation on the UK to secure the rights of the applicants and of persons in their position.

This decision applies to samples taken directly from suspects. That sort of information collection is now the subject of legislation in many jurisdictions. In New Zealand we have the Criminal Investigations (Bodily Samples) Act 1995. The bracketed words highlight its focus which is the obtaining of invasive intimate samples, if necessary by force; it does not provide a code for the obtaining of such information by other non-invasive means: R v Cooper CA381/00, 19/2/01. DNA from clothing seized during execution of a search warrant was used in that case to establish that the accused was the father of the victim and of her child. The Court of Appeal held that this investigatory technique was not unreasonable, and also that it was lawful, meaning that the Act did not apply to this means of gathering information.

There is in NZ no regulatory regime governing the retention and destruction of information obtained by indirect means such as those used in Cooper. Obviously, where the suspect is convicted, permanent retention of the information may be justified, as it is under the Act for convictions of specified offences. But for people like the applicants in S and Marper, more rules are needed.

Discuss: no case or no chance?

When should a judge prevent a prosecution case from continuing and discharge the accused for lack of evidence?

The "no case" submission was addressed in DPP v Varlack [2008] UKPC 56 (1 December 2008). This was a case in which the prosecution had relied on inferences, rather than on direct evidence of involvement in a murder.

There is potential in this subject for confusion of a number of threads. One thread is what the judge must decide in ruling on a no case submission. Another is how the jury must be directed on inferences. Another is how an appellate court decides whether an error may have deprived the accused of a real chance of a more favourable verdict.

In Varlack the Privy Council endorsed a statement of the law by King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, 5, which included the following:

"It is not [the judge's] concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence ... ."

So, never mind how the jury will be directed about inferences of innocence, and never mind about how an appellate court will view a conviction. It is beside the point on a no case submission that the judge will tell the jury that they cannot convict if they think there is a reasonable inference that prevents an essential element of the prosecution case from being established to the necessary standard.

But it is relevant on a no case submission that the judge considers that the evidence on an element of the offence is so inherently weak or vague that a reasonable jury properly directed could not convict. It is only in that class of case, where the evidence is tenuous, that the judge's assessment of the acceptability of the prosecution evidence is relevant to the no case issue.

That is because questions of fact are for the tribunal of fact. On a no case submission, if the evidence is not inherently weak or vague, the judge has to decide whether the evidence is adequate. Adequacy is a question of law. It does not require anticipating what the jury will decide. A case is adequate, in this sense of overcoming a no case submission if, to quote the "canonical statement of the law" by Lord Lane CJ in R v Galbraith [1981] 1 WLR 1039, 1042 cited in Varlack at 21:

"... a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt."

King CJ elaborated, in the passage quoted by the Privy Council at 22 of Varlack:

"I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."

So, as the Board put it at para 23, the test is what inferences a reasonable jury properly directed might draw, as distinct from what inferences the judge (or the Court of Appeal) thought could or could not be drawn.

You may think that here there are moments of clarity, rapidly followed by periods of obscurity. The point to remember is that the facts are for the jury to determine except in cases where the evidence is inherently weak or vague.

The position was summarised in R v Harder 29/5/03, Williams J, HC Auckland T002481:

"A conviction will be unsafe within the terms of the authorities only rarely and only where the 'necessary minimum evidence to establish the facts of the crime has not been called' so that the elements have not been proved or in the rare case where the evidence is plainly so inadequate and threadbare or the witnesses so discredited that the trial Judge concludes that a conviction must necessarily be unsafe and the interests of justice therefore compel discharge."

I think the position would be clarified by this sort of omission of reference to the jury. The issues are whether there is evidence on each element of the case, and whether any of that evidence is plainly so inadequate and threadbare or the witnesses so discredited that the trial Judge concludes that a conviction must necessarily be unsafe and the interests of justice therefore compel discharge.

In Varlack the Board held that the trial judge had correctly rejected the no case submission, and the respondent's conviction was restored. On another point, it held that a good character direction should have been given even though the accused's defence involved admissions of bad conduct, but that here the omission of that direction had made insufficient difference to the trial to affect the verdict.

For the sake of a bit of mental exercise, one might compare the law on no case submissions to that on applications of the proviso. The latter, insofar as relevant here, involves considering whether, in the absence of an error that occurred at trial, the jury could have acquitted the accused. So whereas the no case issue is whether the jury could convict, the proviso issue is whether the jury could acquit.

As can be seen from the cases on the proviso (see Index to this site, entries under "Proviso" and "substantial miscarriage of justice"), the courts are not of one mind on how to decide whether a jury could acquit. Again, the difficulties arise from the court having to decide what a jury could do.

Just for the sake of tossing around ideas, what if the appellate court's task were to be seen as deciding whether there is a defence case that should go to a jury? The error at trial would have to link to the defence case, but, assuming it did, should the court quash a conviction and order a retrial if there is a defence case that is not tenuous (inherently weak or vague)? Each side should meet the same criteria of adequacy on the question of whether its case should go to the jury, whether before or at trial (prosecution case considered by the judge) or by way of retrial (defence case considered on appeal). Discuss.

Breach of right to legal advice

Failure by the police to advise a suspect – now the accused - of his right to legal advice can result in exclusion of evidence against him. This exclusion might also extend to evidence of things found as a consequence of what he said. That, while exciting, is not the thing that interests jurists. They are interested in the basis for exclusion of that evidence.

Is the basis for exclusion the need to ensure a fair trial, or is it the need to uphold broader policies such as the need to maintain control over the conduct of agents of the state and to prevent the administration of justice being brought into disrepute?

Why does the difference between these bases for exclusion matter? Because a different form of decision process is appropriate to each. On the one hand, there are decisions that proceed by way of application of rules. In these, if the right has been breached, exclusion of the tainted evidence is an automatic consequence. On the other hand, there are decisions that involve a balancing of competing interests. In these, the seriousness of a breach of the right is weighed against the public interest in holding the accused responsible for the alleged wrongdoing, and the balance is determined by applying a criterion of proportionality: whether exclusion of the tainted evidence would be a proportionate response by the court to the seriousness of the breach in this case.

The right to a fair trial is an absolute right, and it seems inapt to apply to it a decision process that involves balancing of competing interests. So it is necessary to know whether breach of the right gives rise to fair trial concerns, or to wider public policy concerns.

Cases noted here in previous blogs illustrate the different approaches. See the Index
, and in particular Carr v Western Australia (HCA,blogged 25 October 2007), R v Singh (SCC, 2 November 2007), and Gafgen v Germany (ECtHR, 3 July 2008).

In Salduz v Turkey [2008] ECtHR 1542 (27 November 2008) the Grand Chamber addressed the consequences of a breach of this right (para 55):

"...the Court finds that in order for the right to a fair trial to remain sufficiently "practical and effective" ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 ... . The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction."

This indicates some qualification on the need to give the suspect the information about his right to legal advice ("... as a rule ... unless ... compelling reasons to restrict this right"), and if the circumstances of the case are such that the right has been breached this means that there would be "in principle" irretrievable prejudice if the evidence is admitted. This comes close to a rule of exclusion. It would be a rule if the Court had said "The rights of the defence will, as a matter of principle be irretrievably prejudiced ...".

Supporting the view that the Court was not laying down a rule are the points made when the Court applies the "principles" to the present case (para 56 - 63). These are rather confusing as they include comments on matters the Court does not have to decide (58) and they refer to the applicant's youthfulness while also noting that the police procedure was being applied to everyone (60, 61). The Court focuses on how the breach of rights affected the applicant's trial (57, 58), in particular noting that the trial court treated the tainted statement as central evidence which other evidence in the case confirmed. This approach does not look like the application of a rule of exclusion.

If the decision process is not the application of a rule, it is not necessary to refer to breach of the right as going to the fairness of the trial. Policy fairness, not trial fairness, should be the context for the decision. However the Court, without defining trial fairness, considered that this breach did go to trial fairness.

I do not suggest that trial fairness is necessarily the wrong basis for the admissibility decision. A fair trial is one where the law is accurately applied to facts determined impartially. It could be argued that absence of legal advice might give rise to an unreliable statement, so that if the court relied on it that would skew the proceedings by causing partiality (giving improper weight to prosecution evidence). It could even be argued that such a statement would not be voluntary in the sense that the law requires, and that the use of such evidence would be of questionable reliability and would similarly render the trial partial.

The trouble with that view, focused as it is on the proper weight of the tainted evidence, is that questions of the weight of the evidence are usually for the tribunal of fact once the evidence is admissible. A coerced confession is not necessarily unreliable. Its rejection by the court is really a matter of public policy.

Courts in New Zealand tend to justify exclusion of evidence tainted by breach of the right to legal advice on unreliability grounds (see the cases mentioned in Fig 4 of my draft paper on improperly obtained evidence). Nevertheless, as that paper shows, the pattern of decisions follows that of decisions based on balancing of competing values. It seems to be a matter of the right results for the wrong reasons.

Issue estoppel: rule or discretion?

What place do rules have in modern evidence law?

Should the admissibility of evidence of prior misconduct, for which the accused has been tried and acquitted, be determined by a rule, such as issue estoppel, or by a discretion?

That was the main issue in R v Mahalingan [2008] SCC 63 (14 November 2008).

Before looking at how this was addressed in that case, it is worth recalling that the rules of evidence should promote the ascertainment of the truth, that a trial must be fair to the accused but fairness to the prosecution is also important although not overriding, and that evidence of an alleged fact does not have to establish that fact beyond reasonable doubt before it is admissible as part of the case for either side.

This last point is illustrated by Bayes' Theorem.

In Mahalingan the Supreme Court unanimously ordered a retrial on aggravated assault. After the original trial on that charge the accused had been acquitted of attempting to pervert the course of justice, it having been alleged that he had telephoned a witness before the aggravated assault trial and tried to persuade that person not to incriminate him. Should evidence of that alleged telephone conversation be admissible at the retrial on the aggravated assault?

The minority (Deschamps, Abella and Charron JJ) approached this consistently with the propositions about the law of evidence that I have set out above. To be admissible, the evidence of the telephone call need only be established on the balance of probabilities (166).

That standard is applied as a matter of policy, and is not a requirement of logic, as Bayes' Theorem demonstrates.

The minority rejected an argument that the rule concerning issue estoppel should apply in criminal law. Various reasons for this rejection were advanced by Charron J, who delivered the joint judgment of the dissenters. Most importantly she held that (132):

"The application of issue estoppel as an absolute rule precluding the admission of prior acquittal evidence in all cases regardless of context is inconsistent with the basic rule favouring the admission of all relevant evidence, subject to countervailing concerns."

The countervailing concerns are adequately expressed in existing concepts and provisions: abuse of process, character evidence admissibility, rules against multiple convictions and collateral attack, and the pleas of autrefois acquit and autrefois convict; s 11(h) of the Charter is also relevant (84). Such of those matters as were relevant would be considered by the judge at the retrial, and the evidence was not rendered inadmissible by issue estoppel which is only an appropriate rule for civil cases.

McLachlin CJ delivered the judgment of herself and Binnie, LeBel, Fish and Rothstein JJ. Issue estoppel is retained in criminal law but in a revised form (to correct its drift into difficulty) so that it now precludes the prosecution from relitigating an issue that has been resolved in the accused's favour in a previous criminal proceeding, whether on the basis of a positive fact finding or on a reasonable doubt (2, 22, 26).

The policies behind this are the desirability of avoiding inconsistent verdicts, the need to uphold the principle of finality, and the need to ensure fairness to the accused.

This last matter, fairness to the accused, does not mean fairness in the sense of a fair trial, but rather it means fairness in the public policy sense. The Chief Justice elaborated her use of the expression "fairness to the accused" at 39:

"In my view, it is clear that fairness to the accused requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The state has the right to charge an accused and to prove the facts at a trial of the charge. If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata."

This requires a determination, in each case, of whether the issue in question has been previously decided in the accused's favour (33):

"Only issues that were either necessarily resolved in favour of the accused as part of the acquittal, or on which findings were made (even if on the basis of reasonable doubt) are estopped."

That, I suggest, will operate capriciously. The accused has the burden of showing that the issue was decided in his favour (23), and his ability to meet this burden may depend on what he was previously charged with, and how many issues he raised at the earlier trial. He might diminish his chances of successfully relying on issue estoppel if he raised multiple issues, even though a genuinely innocent accused would put everything in issue.

In New Zealand we have crept away from issue estoppel in criminal law: R v Davis [1982] 1 NZLR 584 (CA), Bryant v Collector of Customs [1984] 1 NZLR 280 (CA), R v Coombs [1985] 1 NZLR 318 (CA), R v Fatu [1989] 3 NZLR 419 (CA), R v Degnan [2001] 1 NZLR 280 (CA), Fox v A-G [2002] 3 NZLR 62 (CA). See also Z v Dental Complaints Assessment Committee [2008] NZSC 55 (blogged here 25 July 2008) especially at paras 57-59, 125-127, for discussion of the use of criminally determined matters in civil proceedings, a topic also addressed in abuse of process terms, without reference to issue estoppel. That trend suggests that the minority approach in Mahalingan would be favoured here. We have regarded the jurisdiction to prevent an abuse of process by, inter alia, excluding evidence on public policy grounds, as a potentially powerful means of ensuring fairness in the wider sense. This contrasts with the majority judgment in Mahalingan, where abuse of process was described as a broad, somewhat vague concept that varies with the eye of the beholder, reserved for obviously egregious abuses of the Crown power, to be relied on successfully only extremely rarely (42):

"To protect parties from relitigation, abuse of process would need to be cast in a less discretionary form than it now takes. Therefore, considering the high threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achieves the fairness goal that underlies the doctrine of issue estoppel."

That may reflect the emaciated form of the abuse of process jurisdiction in Canada. In other legal systems it may be relatively (I feel I am entitled to use the word "relatively" in view of my recent brush with smugness) strong and an adequate substitute for the rule against issue estoppel.

I should add, lest I be accused of regarding Canadian law as unduly flaccid, that the Charter provides the remedy of discretionary exclusion (s 24(2)) in terms that will usually make resort to the common law unnecessary: R v O’Connor (1995) 103 CCC(3d) 1 (SCC) per L’Heureux-Dube J at para 70-72. Under s 24(2) the determination is whether admission of evidence obtained in a manner that infringed or denied a Charter right or freedom would bring the administration of justice into disrepute. Common themes had been evident between the common law and Charter jurisprudence. For example, in R v Mack (1990) 44 CCC(3d) 513 (SCC) Lamer J, for the Court, addressed police conduct of an investigation that amounted to entrapment, and held that admitting evidence obtained through such conduct would bring the administration of justice into disrepute. He noted (para 77) that the same principle applied with respect to the common law doctrine of abuse of process. The dominance of the Charter does not render irrelevant Lamer J’s statement of basic principles in Mack.

Nevertheless, the majority in Mahalingan seem to distrust the usefulness of abuse of process. True it is that criticisms for vagueness can always be levelled at concepts that can only be expressed in general terms. Harmless fun can be had in making such criticisms, as occurred in argument in Ngan v R SC8/2007, 14 August 2007 at pp 32-33 (jibes which misfire, as the “high sounding principles” in the Charter are also in the New Zealand Bill of Rights Act 1990). And Blanchard J, the jester in that argument, set out his own general principles in R v Shaheed [2002] 2 NZLR 377 (CA) in defining the criterion for discretionary exclusion of improperly obtained evidence, a formulation that has been adopted in s 30(2)(b) Evidence Act 2006[NZ]: “...determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.” [emphasis added; cf para 156 of Shaheed]

Judges do have a sense of what such general concepts mean. As cases applying them accumulate, patterns emerge and these aid the prediction of how the general concepts will work in particular instances.