Unfair, secret and too long

A fair trial is one where the law is accurately applied to facts that are determined without partiality. The partiality aspect of a fair hearing was examined in Olujic v Croatia [2009] ECHR 209 (5 February 2009).

As can be seen from the Index to this site, there are many decisions in which senior appellate courts have considered trial fairness. Olujic v Croatia applies principles that would be universally accepted. This case concerns the proceedings of a disciplinary tribunal which led to the dismissal from office of a judge of the country's most senior court.

Breaches of the Convention occurred in respect of two associated rights: the proceedings had been too lengthy (over 6 years to determine the employment future of the applicant who was a senior judge): para 90 – 91. Also the hearings had not occurred in public (70 – 76). The link to fairness is apparent from the need for public confidence (70):

" ... The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, a fair hearing, the guarantee of which is one of the foundations of a democratic society (see Sutter v. Switzerland, 22 February 1984, § 26, Series A no. 74 )."

On the central requirements of fair proceedings, violations were also found. Some members of the tribunal (the National Judicial Council) had publicly expressed views in newspaper interviews, given before the hearings were concluded, which indicated they were biased against the applicant.

The importance of impartiality has both a public perspective and a party perspective, and requires consideration of the judge's subjective interests and of the objective impression that was conveyed:

"57. First and foremost, it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused (see Padovani v. Italy, 26 February 1993, § 27, Series A no. 257-B). To that end Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes absence of prejudice or bias and its existence can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (see Piersack v. Belgium, 1 October 1982, § 30, Series A no. 53, and Grieves v. the United Kingdom [GC], no. 57067/00, § 69, ECHR 2003-XII)."

The subjective and objective tests are interrelated (60) and both may apply on particular facts. Here the Chamber found there were objective grounds to fear lack of impartiality arising from the public statements that three members of the tribunal had made (65 – 68).

Another aspect of fairness was breached: there had been lack of equality of arms, because the tribunal had refused to hear defence evidence. Whereas the ECtHR does not have jurisdiction over the rules of admissibility applicable in member States,

"77. ... the requirements of fairness of the proceedings include the way in which the evidence is taken and submitted. The Court's task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and submitted, were fair within the meaning of Article 6 § 1 (see, inter alia, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 31, Series A no. 274)."

Here the proposed defence evidence was relevant to advancing a denial of the allegations against the applicant (81), and the tribunal's reasons for refusing to hear the evidence were inadequate. The ECtHR's jurisdiction arose from the impact of inequality of arms on the fairness of the hearing:

"84. The Court observes further that, although it is not its task to examine whether the court's refusal to admit the evidence submitted by the applicant was well-founded, in its assessment of compliance of the procedure in question with the principle of equality of arms, which is a feature of the wider concept of a fair trial (see Ekbatani v. Sweden, 26 May 1988, § 30, Series A no. 134), significant importance is attached to appearances and to the increased sensitivity of the public to the fair administration of justice (see Borgers v. Belgium, 30 October 1991, § 24, Series A no. 214 B). In this connection the Court notes that the NJC admitted all the proposals to hear evidence from the witnesses nominated by the counsel for the Government and none of the proposals submitted by the applicant."

The refusal to hear the evidence here was another violation of the right to a fair hearing.

This astonishing catalogue of fundamental errors by a tribunal and its members - persons elected from among the members of the judiciary, the State Attorney's Office, the Croatian Bar Association and law professors, all of whom were persons of high standing - highlights the ease with which a sense of balance can be lost when a case involves high public interest.

The more people in the audience, the more likely it is the juggler will drop the balls.

Extended secondary liability in Queensland

Extended secondary liability was the subject of R v Keenan [2009] HCA 1 (2 February 2009). The High Court of Australia was here considering s 8 of the Criminal Code (Q):

"When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

This sort of liability has common law and statutory forms, and it is important to notice the aspects of the definition that differentiate it from others. Here the phrase "of such a nature" and the objective nature of the probability ("was a probable consequence", not the subjective formulation "was known to be a probable consequence") are significant. An example of a different formulation is s 66(2) Crimes Act 1961[NZ].

In Keenan an alleged common purpose of inflicting serious physical harm on the victim was followed by the use of a gun by one of the offenders to cause grievous bodily harm to the victim. Was Mr Keenan, the respondent in this appeal, correctly convicted of doing grievous bodily harm with intent to do that harm, pursuant to s 8, if use of a gun was not part of the common purpose?

For discussion of the common law, see Rahman [2008] UKHL 45 (blogged here 3 July 2008). Kirby J (dissenting) preferred not to interpret s 8 in a way that would depart from the common law, which left to the jury the task of determining the boundary of secondary liability in the particular circumstances.

The other members of the Court held that it is not the way that the harm is caused that matters (the fact that it was by use of a gun) but rather it is the nature of the harm that was caused (grievous bodily harm). Then the questions are, what was the common purpose, and was the offence that occurred (in a generic sense, not the precise acts) a probable consequence of the prosecution of that purpose. As Hayne J pointed out (83), this gives effect to the phrase "of such a nature", whereas Kirby J's interpretation would focus on the way the offence was committed and ask whether that was a probable consequence of the prosecution of the common purpose. Kiefel J (with whom all the majority agreed) held (115) that the act involved in the commission of the offence is not part of the connection between the common purpose and the offence.

Kirby J supports his dissent with policy grounds (66), emphasising the importance of the jury's role as the setter of the boundaries of liability in accordance with community values.

Rights restriction or deprivation: pragmatic balancing

When is a restriction on movement a deprivation of liberty?

In Austin v Commissioner of Police for the Metropolice [2009] UKHL 5 (28 January 2009) crowd control during a May day demonstration in London was the setting for an argument that confinement of the appellants within a police designated zone at Oxford Circus for several hours was a breach of their art 5 ECHR right to "liberty and security of the person".

Lord Hope delivered the leading opinion, with which the other Law Lords agreed. Whether particular facts amount to a restriction of movement, or to a breach of the right to liberty, is a matter of degree and intensity (21) to which a balancing of conflicting interests applies (27), taking a pragmatic approach which requires good faith and proportionality on the part of the authorities so as to avoid arbitrariness (34).

Some slight – and probably inconsequential - difference in emphasis occurred in the opinions concerning the role of the purpose that the authorities had for restricting the appellants' movement. Lord Hope noted that purpose had no separate role to play in the balancing exercise other than as part of this requirement for good faith. Lord Walker emphasised (43) that caution was needed as to the role of purpose, as good intentions couldn't make up for a deficiency in justification for confinement (44), but the focus should be on what the police were doing (47). Lord Scott said that purpose was a high ranking circumstance (39), and Lord Neuberger noted that it would be very different if the police had been detaining the crowd in order to punish them for the disorder that had occurred (63).

There is a small cause for concern over an aspect of this case. The right to liberty was called an "absolute" right (Lord Hope at 2, 15, 18; Lord Walker at 42). That is not a term of art in the Convention. Strictly speaking, the right to liberty is unqualified (except for the qualifications expressed in particular specified situations) but is subject to derogation in accordance with art 15. While the right to liberty can be called a fundamental right of the first rank (Lord Hope at 27), does that necessarily mean that all such fundamental rights of the first rank are vulnerable to qualification by means of balancing? Most people, I suspect, would not accept that the right to a fair trial can be subject to qualification by balancing.

Unfortunately, Lord Hope refers to the right to a fair trial at 31, quoting from para 53 of O'Halloran and Francis v United Kingdom [2008] ECHR 21. This dictum points out that the facts of a case must be considered in determining whether a trial was fair (an obvious comment), but the way it is used makes it look as if it asserts that fairness changes with the circumstances. The comment was made in the course of rejecting an argument that violation of the right to silence amounted to breach of the right to a fair trial, and was plainly correct: violation of the right to silence would normally be sufficient grounds to rule an incriminating statement inadmissible. But in O'Halloran and Francis the evidence had been correctly ruled admissible; nevertheless, there were no fair trial concerns in the particular circumstances.

So, when Lord Hope refers (34) to a pragmatic balancing of fundamental rights which are not subject to restriction or limitation in the Convention, he should not, I suggest, be taken to include the right to a fair trial (except where derogation applies), but his comments correctly refer to other fundamental rights. The other Law Lords, while agreeing with Lord Hope, did not comment on the fair trial point.

I should add that the model described in Austin does not require a restriction of the right to liberty. The so-called balancing is a means of determining whether the restriction on freedom of movement is justified; if it isn’t, then there has been a breach of the right to liberty. It is not a question of restricting the right to liberty to accommodate a justified restriction on the right to freedom of movement. Analogous reasoning could make the reference to trial fairness seem acceptable: there is no question of restricting the right to a fair trial to accommodate a justified restriction on the conduct of the defence; pragmatic balancing may be applied to determine whether a restriction on the way the defence is conducted is justified, and if it is there is no breach of the right to a fair trial. The difficulty with this model is that it converts questions about the rights to liberty or a fair trial into questions about the justifications of restrictions on movement or procedure. The model omits consideration of the content of the rights to liberty or a fair trial. But if those rights warrant being called absolute it would be appropriate to examine what they mean. A justified limitation of one right (to movement or to procedural steps) does not mean that the other (liberty or a fair trial) is not infringed. I have recently referred to the House of Lords decision in R v H (see blog for 20 January 2009). In that case there is a clear separation between these questions: if procedural limitations (on disclosure) are justified, that does not automatically mean that the ensuing trial will be fair.

Austin confirms what must surely be uncontroversial: the right to liberty does not mean a right to resist reasonable measures by the police to prevent damage to property or injury to people. The real controversy was over the reasonableness of the measures taken by the police in this case.

Dealing with unsavouriness

Two cases from the Supreme Court of Canada concern the directions a judge should give to a jury on the need for caution about the evidence of an "unsavoury" witness: R v Khela [2009] SCC 4, applied in R v Smith [2009] SCC 5, both 22 January 2009.

Unsavoury witnesses "...include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken by oath or affirmation to do so." (3, Fish J delivering the judgment of himself and Binnie, LeBel, Abella, Charron and Rothstein JJ; Deschamps J separately concurred).

The required elements are rational and will no doubt be of interest outside Canada.

There is no precise formula, but the direction must (I summarise):

1. Identify the evidence about which the jury needs to be cautious;
   
2. Explain why caution is necessary;
   
3. Caution the jury on the danger of convicting in reliance on the testimony of the unsavoury witness, although the jury is entitled to do so if satisfied that the evidence is true; and
   
4. Instruct the jury to look for independent evidence which gives comfort that the unsavoury witness is correct (drawing attention to what evidence is capable of confirming the unsavoury witness in the relevant way).
   

 A subsidiary appeal point in Khela concerned a direction that wrongly told the jury that the defence needed to prove certain facts in order to support an inference of innocence (58). However, the Court of Appeal had correctly applied the proviso on the basis that in context the misdirection would not have made any difference to the verdicts.

The unsavoury witness directions set out here would be a good framework on which counsel might structure that part of the address to the jury. It is always a good idea to try to persuade the jury in terms that will be repeated by the judge.

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.