Private garbage?

Do the police act improperly if they search, without warrant, the contents of a rubbish bag left on a property by the fence line for uplifting by the official garbage collectors? This was the issue in R v Patrick [2009] SCC 17 (9 April 2009).

The police action involved a trespass: the act of reaching into the air space of the property occupied by the appellant, and uplifting the bag, which had been left on a stand in an opening or indentation in the fence at the boundary.

In the bag was evidence of ecstasy manufacturing, and the appellant was consequently convicted of unlawfully producing, possessing and trafficking in that substance.

There had been six such searches, on separate days, of the appellant's rubbish bags, and information obtained was used in support of an application for a warrant to search the address.

For evidence of serious offending to be excluded on grounds of unreasonable search it is necessary that it was obtained by means that were seriously improper. That is, exclusion of the evidence must not be a disproportionate response to the impropriety. On that basis the evidence here was admissible. Arguing otherwise requires asserting a serious impropriety, which in turn requires asserting breach of a significant privacy interest.

Abella J came closest to recognising a significant privacy interest. She delivered a judgment concurring with that of the other judges (delivered by Binnie J, appropriately enough as a cruel punster might observe), but reached that conclusion – that there was no impropriety – on the basis that the police had, before they searched the rubbish bags, reasonable suspicion that the appellant had been offending in this way. Such a threshold of suspicion was necessary, she held, because of the appellant's privacy interest which was "diminished ... not unlike the reduced expectation at border crossings" (para 90).

That, I suggest, is unsatisfactory, because it creates uncertainty over when a search warrant is needed. Border crossings are different, because submission to search is required.

The joint judgment gets to grips with analysis of privacy expectation, applying R. v. Tessling, 2004 SCC 67 (CanLII), 2004 SCC 67, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432. There are three types of privacy interest: personal, territorial, and informational. This case involved assertion of territorial and informational privacy interests. Here, the interests were appropriately analysed as being informational. Issues were whether the appellant had a direct interest in the information and a subjective expectation of privacy in it; then, if he did, was his expectation reasonable in all the circumstances?

Here the conclusion was that the appellant had abandoned any reasonable expectation of privacy: he had done all he needed to in order to commit the bags to the municipal collection system. It would have been different (ie not unequivocally abandoned) if he had not placed the bags within reach of the collectors.

Accordingly, the appeal was dismissed. Only one, of all the 11 judges who considered this case, concluded that the evidence should have been excluded. Conrad JA emphasised the territorial privacy aspect and would not have permitted the totality of the circumstances test to diminish that, and also reasoned that people who leave garbage for collection expect it to be made anonymous by being mixed with other people's garbage.

Interesting issues were discussed, as is reflected by the participation of five interveners in this case.

What if the police had obtained the bags from the official collectors immediately after the bags had been lawfully uplifted? The availability of alternative lawful means of obtaining the evidence can weigh in favour of increasing the impropriety (as the police are expected to behave lawfully). But, arguably, the ready availability of lawful means should make the actual impropriety less, on a sort of "where's the real harm?" rationale.

Extended interrogations and voluntariness

Awful legislative drafting caused a 5 – 4 split in the United States Supreme Court in Corley v United States [2009] No 07-10441, 6 April 2009.

The peculiarity of the legislation makes the case of little interest outside the USA but the difference between the majority (delivered by Souter J, joined by Stevens, Kennedy, Ginsburg and Breyer JJ) and the minority (delivered by Alito J, joined by Roberts CJ, Scalia and Thomas JJ) judgments reflects differing approaches to the significance of the context of a subsection.

Before looking at the details, I can summarise the broad position of the majority as being that the subsection (c) could not be read down to accommodate the wider meaning to be given to subsection (a). There was no legislative suggestion that (a) had to be the dominant provision, and in any event they dealt with different topics.

The case is about whether delay in bringing the accused before a court meant that his confession was inadmissible even though it was voluntarily made.

The first part of the legislation, 18 USC §3501(a), provides:

"In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances."

Note that this does not refer to the other subsections in §3501. Also, it only deals with voluntariness.

The minority treat this as the dominant provision, so that delay does not matter if the confession is voluntary.

The part of the legislation dealing with delay is §3501(c):

"In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer."

Note that this is a rule drafted in the negative, when it is, if read with the proviso, more sensible as a positive rule of exclusion. In effect it means a statement made after six hours of arrest or detention is inadmissible, provided that a longer time may not render the confession inadmissible if it was reasonable in the light of travel practicalities. That is how the majority interpreted it.

The minority reasoned that the admission of confessions made within six hours did not justify the implication that those made after longer delay were to be excluded.

The majority held that the minority's reading rendered subsection (c) redundant, or, as it said, "nonsensical and superfluous". The interpretative canon is that

" '[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .' " Hibbs v. Winn, 542 U. S. 88, 101 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction §46.06, pp.181–186 (rev. 6th ed. 2000))."

The majority pointed out that the minority were not reading the section as a whole, and to say that (a) is clear on its own proves nothing. The minority treated subsection as if it said "a confession will not be treated as involuntary because of delay if ...", whereas the word is inadmissible, not involuntary. Voluntariness and admissibility are not synonymous and both concepts are used in subsection (3); their different usage is not to be treated as simply a mistake in draftsmanship. They are different under the McNabb-Mallory rule at common law, which Congress is presumed to have been aware of:
Cannon v. University of Chicago, 441 U. S. 677, 699 (1979).

The majority reasoned that many evidential rules would be redundant if the only criterion for admissibility was voluntariness (the reduction ad absurdum argument), and that the legislative history supported its interpretation. The mischief of subsection (3) is interrogations of unlimited duration:

"No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. "[C]ustodial police interrogation, by its very nature, isolates and pressures the individual," Dickerson, 530 U. S., at 435, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906–907 (2004).

"Justice Frankfurter's point in McNabb is as fresh as ever: "The history of liberty has largely been the history of observance of procedural safeguards." 318 U. S., at 347. McNabb-Mallory is one of them, and neither the text nor the history of §3501 makes out a case that Congress meant to do away with it."

So, illustrated here are various approaches to statutory interpretation: reading a provision in context, avoiding redundancy, reference to legislative intent, avoidance of absurdity. Another point was that established approaches should not be departed from, as here where the rule that relevant evidence is admissible (Rule 402, Federal Rules of Evidence) has been understood to be subject to exclusionary rules.

Jury selection

Just a glance at Rivera v Illinois [2009] USSC No 07-9995 (31 March 2009) will get you thinking about whether there should be peremptory challenges to potential jurors.

There is huge variety in the jury selection procedures that jury trial jurisdictions have developed. Peremptory challenges are no longer allowed in England and Wales. Where such challenges are permitted, their number varies. In the USA there are measures to prevent peremptory challenges being exercised on racial or sexist grounds. That requires the judge to determine whether a peremptory challenge should be permitted.

In Rivera the judge wrongly refused to allow a peremptory challenge. The trial proceeded with that juror knowing she was not wanted by the accused. She became the foreman (foreperson) of the jury. The Supreme Court unanimously held that the error did not raise due process issues, as there was no risk of bias.

Perhaps the Court had to come to that conclusion, because to reverse the error here would have the effect of discouraging judges from ever exercising the control over the use of peremptory challenges that was designed to overcome racial or sexist discrimination in jury selection.

Be that as it may, Rivera illustrates the complications that can arise from sensitivity to the motives for which peremptory challenges may be exercised.

How big should juries be? How can it be ensured they are not biased? What sort of inquiry should be permitted into the competence of potential jurors? These issues go to the fundamentals of the jury trial process: the need for the facts at issue in a trial to be determined impartially.

Youth justice procedures in Canada

A Supreme Court of Canada case, abundant in citations of authors and cases, and with 12 counsel appearing, deals with aspects of youth justice: R v SJ L-G [2009] SCC 14 (27 March 2009).

The case establishes that when young persons are jointly charged with adults, young persons are nevertheless tried in the youth court, as there is a statutory separation of trial systems. Whereas the purpose of the adult courts is to emphasise the need for punishment, youth courts favour rehabilitation, reintegration and fair and proportionate accountability.

Further, there is no constitutional right to a preliminary hearing, which is only a screening mechanism. A preliminary hearing is distinct from discovery, and absence of a preliminary hearing does not impair the right to discovery.

The case is largely an exercise in statutory interpretation, so is not of great interest in jurisdictions where legislation differs.

Duties, errors and complaints

For discussion of counsel's duties in relation to defences that have no real prospect of success, see Knowles v Mirzayance [2009] USSC No 07-1315 (24 March 2009).

Points of general interest mentioned here are:

• There is no requirement that a defence has to be run if all that can be said for it is that there is "nothing to lose" in running it.
  
• In alleging deficient representation by counsel, an appellant must show both deficient performance by counsel, and prejudice (ie a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).
  
• Deficient performance requires that the appellant show that counsel's representation fell below an objective standard of reasonableness.
  
• Counsel's conduct was virtually unchallengeable where he had made a decision on an informed basis after thorough investigation of law and facts relevant to plausible options.
  
• There is no prevailing professional norm that counsel must assert the only defence available, even one almost certain to lose.
  

And another decision of the United States Supreme Court is of general interest for its terminology concerning inappropriate defence tactics: Puckett v United States [2009] USSC No 07-9712 (25 March 2009):

• Sandbagging: a defendant's conduct in remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favour. Cf. Wainwright v. Sykes, 433 U. S. 72, 89 (1977); see also United States v. Vonn, 535 U. S. 55, 72 (2002).
  
• Gaming the system: instead of pointing out an error in a timely way, "wait[ing] to see if the sentence later str[ikes] him as satisfactory," Vonn, 535 U. S., at 73, and then seeking a second bite at the apple by raising the claim.
  

And a phrase which is probably new to many people: "hornbook law", used here in the sentence "But it is hornbook law that misrepresentation requires an intent at the time of contracting not to perform." The idea is that this is the sort of law that is hallowed.

In Puckett, it was conceded that a plea bargain had been broken by the prosecution, but the Court found that in the circumstances this did not invalidate the plea of guilty and that there was no prejudice to the appellant as it was he would "likely would not have" (as Americans say) obtained the benefits that the parties had agreed to. He was seeking to use his guilty plea as a sign of contrition, but he had subsequently reoffended so the plea could hardly be said to have come from contrition. Plain error review requires, as held in United States v. Olano, 507 U. S. 725 (1993), (1) an error that has not been waived; (2) the error must be clear or obvious, (3) the error must have affected the appellant's substantial rights – usually in that it affected the result of the proceeding; (4) and, if those requirements are met, a remedy may be given if the error has seriously affected the fairness, integrity or public reputation of judicial proceedings.

But to begin with, the error must be complained of at the earliest opportunity:

""anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal." United States v. Padilla, 415 F. 3d 211, 224 (CA1 2005) (en banc) (Boudin, C. J., concurring)."

Just leave it to the Crown

The Supreme Court of New Zealand has decided the jury vetting case (see blogs for 14 April 2008 and 29 July 2008): Gordon-Smith v R [2009] NZSC 20 (23 March 2009).

The majority (McGrath J dissenting) upheld the Court of Appeal majority decision:

"22. ... the Crown should disclose any previous convictions of a potential juror known to it, if the previous conviction gives rise to a real risk that the juror might be prejudiced against the accused or in favour of the Crown. Disclosure should not otherwise be made. By this means the interests of accused persons are reconciled with the legitimate privacy and security concerns of jurors. The non-disclosure of a previous conviction which does not give rise to a real risk of prejudice cannot be said to jeopardise the accused's right to a fair trial."

McGrath J's dissent, echoing the position taken by Robertson J in the Court of Appeal, led him to conclude:

"87. ... the Crown has to make disclosure within a reasonable time prior to trial of all information concerning convictions of those on the panel whenever that information is in the Crown's possession and a juror with a prior conviction is not to be challenged by the Crown. The ... Crown must similarly disclose other information it receives from the police which may indicate a juror is possibly biased."

The dissent reasoned that, since the accused's right to a fair trial is absolute (84, citing R v Condon [2007] 1 NZLR 300 (SC), at para 77), and as there is no need to supplement the extensive legislative provisions recently introduced to protect jurors' privacy interests, and as opinions may vary on the significance of previous convictions in relation to potential juror bias (82), and as a well-informed observer would have reasonable grounds for apprehending that a jury may not be impartial when selected in the context of an imbalance of information as between Crown and defence, all information available to the prosecutor should be shared with the defence (86, 87). McGrath J would also have required Crown challenges to be exercised in a principled way in accordance with instructions that would need to be promulgated.

The majority downplayed the risk of unfairness, calling it "entirely speculative" (17). The recent legislation bolstering jurors' privacy interests was taken to be a lead the Court should follow (19), and

"20. With these points in mind we do not consider it is necessary or desirable to go as far as Robertson J and require all information to be made available. That would unreasonably impact on jurors' legitimate concerns for their privacy and security, and for no sufficient reason. ... ."

The majority would not require disclosure of any information other than convictions.

In other words, the Crown can decide when a previous conviction gives rise to a real risk of bias such that the defence would wish to challenge the juror.

Many readers of this decision will be sceptical of the majority judgment. Sarcastic readers (for alas, some there will be) will think the Crown may as well exercise all the defence challenges.

The nastiness of tapering

For a horror story of abuse of power see Takitota v. The Attorney General & Ors (Bahamas) [2009] UKPC 12 (18 March 2009). How do the courts calculate how much money to give a person who has been unlawfully detained for years in inhumane and degrading conditions?

There are two aspects to consider: first, constitutional or vindicatory damages, and second, compensation for loss of liberty.

Exemplary damages are not appropriate where constitutional or vindicatory damages are awarded:

"15. Their Lordships consider that it would not be appropriate to make an award both by way of exemplary damages and for breach of constitutional rights. When the vindicatory function of the latter head of damages has been discharged, with the element of deterrence that a substantial award carries with it, the purpose of exemplary damages has largely been achieved. To make a further award of exemplary damages, as the appellant's counsel sought, would be to introduce duplication ... ."

The fact that constitutional or vindicatory damages are to be awarded should not affect the calculation of the compensatory damages. But, in calculating the amount appropriate for compensation for a lengthy period of unlawful detention (here it was over 8 years), the phenomenon of "tapering" comes into play.

"9. ... it is usual and proper to reduce the level of damages by tapering them when dealing with an extended period of unlawful imprisonment: cf Thompson v Commissioner of Police of the Metropolis [1998] 1 QB 498, 515, per Lord Woolf MR. ... ."

Tapering looks rather odd, but it is an established method of calculation. It is a bit like reducing a sentence for multiple offences on totality grounds to prevent the final sentence being out of proportion to the harm that the offender caused. But I think it is morally dubious. Is a person to receive less compensation because he may have become accustomed to inhumane treatment? Does the law grow weary of his claim? Don't the days become increasingly valuable, as they are each a greater proportion of his remaining life?

Here the Board upheld the amount awarded for constitutional or vindicatory damages, but remitted the question of compensatory damages to the Court of Appeal because that Court's judgment was imprecise and did not enable assessment of the correctness of its mathematics. The haphazard nature of tapering is illustrated where, after calculating compensatory damages on a dollars-per-day basis, the Court of Appeal continued:

"96. In light of the fact that the appellant will be receiving a lump sum [ie $100,000 for constitutional or vindicatory damages] we would reduce the figure for compensatory damages by $330,500.00 and award the sum of $400,000.00 as compensation for the loss of 8 years and two months of the appellant's life. We will not, however, reduce the sum of $100,000.00 by way of exemplary damages since that sum is awarded to show the strong disapproval of the courts for the conduct of the respondents in this case from the time of the appellant's arrest until this case is finally disposed of."

Why chop off $330,500? The Court was wrong to use constitutional damages as the reason for doing this, but how much will it take away as "tapering"? The Privy Council thought the local court better placed to set the amount of compensation, but one wonders.

Finality

Three Privy Council decisions:

The inherent jurisdiction of final appellate courts

Bain v R (New Zealand) [2008] UKPC 6 (16 March 2009) at para 6:

"The Privy Council, like other final courts of appeal, has an inherent jurisdiction to discharge or vary its own orders in cases in which this is necessary for the purposes of justice. But the exercise of this jurisdiction will be rare, because finality is generally in the interests of justice. In Taylor v Lawrence [2003] QB 528 the English Court of Appeal discussed the circumstances in which it would exercise the jurisdiction in cases in which it was for practical purposes a final court of appeal because the case was not of sufficient general public importance to justify leave to appeal to the House of Lords. Lord Woolf CJ said (at p.547):

"What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy.""

The significance of absent evidence

In John v The State (Trinidad and Tobago) [2009] UKPC 9 (16 March 2009) there had been no identification parade in circumstances where one should have been held (26). The witness, an accomplice, claimed to have been forced to drive the offender to a Club where a robbery and murder occurred, and then to drive them away. He also claimed to have recognised the appellant as someone he had seen hanging around Queen and Nelson Streets, Port of Spain. This witness, a taxi driver, was, much later, given immunity from prosecution in exchange for evidence identifying the offender. He identified the appellant in the dock at the preliminary hearing.

Immediately after the offending the witness had given the police two facts which led to the appellant's arrest: the nickname "Dollars" by which the other offenders had called the person, and that he picked up the person at Sea Lots and returned him there after the offending.

The Board split 4-1 on whether the absence of an identification parade had caused the trial to be unfair. Baroness Hale dissented; she would have held the trial to have been unfair. She referred (43) to the majority's bootstraps argument: one can't say this was a recognition case, therefore the absence of a parade didn't matter, without assuming that the identification was correct. The majority (judgment delivered by Lord Brown, with brief concurring remarks by Lord Hoffmann at 34 – 36) considered that on the evidence actually given, in the context of the judicial cautions that the jury received, there was no significant possibility of mistaken recognition here (23, 27).

This case is one of a clash of theories about the witness's assertion of the link between the offender and the appellant.

Send out the jury while we discuss threats

Too much information was given to the jury before a chambers discussion of the possibility that an accused had made threats to witnesses in Mitcham v R (Saint Christopher and Nevis) [2008] UKPC 7 (16 March 2009). The court record summarised what had happened (9):

"MR. MERCHANT, DPP rises to state that certain destructing developments have occurred which threaten the orderly conduct of the matter. It relates to threats."

Not to worry, said the Privy Council: this was a fleeting and oblique reference to threats (18); there had been no request to discharge the jury (and discharge would not have been justified), and the point was not taken in the Court of Appeal.

The proper procedure was referred to at 13, with the possible judicial responses mentioned at 14. The Board approved the approach to the decision whether to discharge the jury taken by Auld LJ in R v Lawson [2005] EWCA Crim 84, [2007] 1 Cr App R 20.

The melancholy fact

The melancholy fact of the existence of dishonest lawyers has led to the need, on occasion, to intercept the private communications between lawyers and their clients. The House of Lords has considered whether a statutory regime had the effect of overriding the client's right to private consultation: In re McE [2009] UKHL 15 (11 March 2009).

The majority (Lord Phillips dissenting) held that as a matter of interpretation the powers of surveillance contained in the Regulation of Investigatory Powers Act 2000[UK] ("RIPA") are capable of extending to the private communications between a lawyer and his client.

Baroness Hale referred to the general terms of s 27(1) of RIPA, which make covert surveillance under the Act "lawful for all purposes". She referred to the history of surveillance legislation, which had been introduced after the ECtHR had held that the House of Lords had been wrong in thinking that there was no privacy right attaching to telephone communications: Malone v United Kingdom (1985) 7 EHRR 14. The intention of the legislation is, as Lord Neuberger said at 110, that s 27(1) should be able to impact on Convention rights and on all rights.

The leading opinion was delivered by Lord Carswell, who addressed the two arguments advanced by the appellants. These were that the principle of legality pointed to a construction of RIPA that preserved the right to private consultation with a lawyer, and that the same construction was supported by the maxim generalia specialibus non derogant.

He held that the principle of legality, stated in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, did not apply here as it was most unlikely that Parliament had overlooked the possibility that privileged communications might be intercepted (100), and that the maxim did not assist, as there was no surveillance legislation when the private consultation rights were established (101). This latter point looks a little weak, and Lord Neuberger added (115) that the maxim could be applied the other way around from that advanced by the appellants. That too is a bit weak, and the stronger rationale for the majority's interpretation lies in necessity (per Lord Carswell at 102).

Lord Phillips dissented on the basis that if Parliament wishes to permit the interception of privileged communications it can say so expressly (41).

Lord Neuberger referred to "the melancholy fact" (117)

" ... that there are dishonest lawyers, and it is therefore positively consistent with the permissible purpose of RIPA, and indeed with the public interest, that their freedom of action be curtailed, and that their abuse of their clients' rights of privilege and rights to privacy be exposed, and, where appropriate, punished. That applies as much to lawyers with clients in custody as to those with clients at liberty."

Pressures of work and difficult clients

Just a small note today on an illustration of how some sorts of delay can be attributable to the accused, not to the prosecution: Vermont v Brillon [2009] USSC 9 March 2009.

Here there was a three year delay before trial, two years of which were wrongly attributed by the Vermont Supreme Court to the State. These were caused by multiple changes of assigned counsel (at least six) who had difficulties in continuing to act: Mr Brillon fired one, allegedly threatened another's life, and dismissed another for alleged incompetence (no judicial finding was made on that). Not all the changes in counsel were the fault of Mr Brillon, and for some periods he was without assigned counsel. There was, however, no systemic breakdown of the public defender service.

The United States Supreme Court applied the ad hoc balancing exercise required by Barker v. Wingo, 407 U. S. 514 (1972), and held that the Vermont court had made the error of attributing to the state the failure of several assigned counsel to move the case forward, and had failed adequately to take into account the effect of Mr Brillon's disruptive behaviour.

The difficulty with attributing to the State the delays due to requests by assigned counsel for continuances due to their heavy workloads was (held the US SC) that this would become an avenue by which such counsel could seek dismissal on delay grounds, and the courts would come to treat requests for continuances by assigned counsel with skepticism. Then, assigned counsel would be treated differently from privately instructed counsel.

The US Supreme Court held that there would have been no delay issue here if Mr Brillon had not dismissed his first counsel on the eve of trial, and if he had not acted aggressively to his third counsel. The six month period during which he was without counsel was insufficient to base a delay application. The case was remanded to the Vermont court for further proceedings not inconsistent with the USSC's opinion.

We all occasionally have clients who are demanding out of all proportion to the fee their cases will bring. Many unpaid hours can be devoted to ensuring proper instructions are received and proper advice is given. Is it right to pretend that publicly funded counsel have the same ability to tolerate the inevitable frustrations as privately instructed counsel? A State will often be assiduous to restrict the billable hours of its publicly funded lawyers, and, where these are salaried counsel, to maximise their workloads. The courts should be sensitive to detecting when those policies amount to systemic failure.

Reverse onus and standard of proof

Reverse onus provisions for establishing a defence can conflict with the right to be presumed innocent until proven guilty, as was seen in Hansen v R [2007] NZSC 7 (blogged here 20 February 2007).

That case drew Parliament's attention to s 6(6) Misuse of Drugs Act 1975[NZ], and the words "presumed until the contrary is proved" were held to put the burden of proof to the standard of the balance of probabilities on the accused.

It was not possible, held the Court in Hansen, to interpret this phrase as meaning until the accused raises a reasonable doubt about whether he or she had the proscribed purpose.

No doubt the New Zealand Law Commission, which is currently reviewing the legislation concerning serious drug offending, will be looking around for a way to formulate the statutory defence of absence of purpose of supply without raising a conflict with the New Zealand Bill of Rights Act 1990. That is, assuming that the possession for supply offences remain: an alternative would be to replace them with offences of possession of traffickable quantities of drugs.

Legislation that provides a potentially useful analogy was considered yesterday by the House of Lords in R v G [2009] UKHL 13 (4 March 2009). The offences created by sections 57 and 58 of the Terrorism Act 2000[UK] were analysed here, with reference to how the defences in s 118 applied to them.

The offences involve possession, so there is an interesting discussion of what possession is in this context: see paras 46 – 48, 50, 53, and 60 – 62. In particular, the ingredient of knowledge of the nature of the information in one's possession, for the s 58 offence, was held to be akin to that required in the famous old case Sweet v Parsley [1970] AC 132 (HL).

Sections 57(2) and 58(3) of the Terrorism Act 2000[UK] create defences if the person charged proves certain things. For what "proves" means, reference must be made to s 118(2):

"If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not."

And s 118(4):

"(4) If evidence is adduced which is sufficient to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond a reasonable doubt."

This is statutory recognition of the idea that the raising of an issue can amount to proof. The evidential burden is treated as a legal burden. In Hansen the Supreme Court held that "proves" cannot mean "raises a reasonable doubt", for reasons too mysterious to discern. Actually, that’s a bit dismissive. The Court held that this meaning was not available because of Parliament’s intent in 1975, because of there being only two recognised standards of proof, because raising an issue is just testing the proposition, not proving anything, and because the expression “the contrary” in the phrase “until the contrary is proved” indicates that more than merely testing the proposition is required. In effect the Court was not prepared to revise the statute by reading in a provision like s 118, above.

Watching the river flow

Tomorrow, and tomorrow, and tomorrow,

Creeps in this petty pace from day to day ...

Unaccountable official delay in determining the appeal occurred in Elaheebocus v The State of Mauritius (Mauritius) [2009] UKPC 5 (25 February 2009). The case was not complex, and none of the delay was attributable to the appellant. The Supreme Court took 19 months between hearing the appeal and dismissing it. The judgment that was eventually delivered was brief, and the Privy Council noted (13) that the appeal had been hopeless and it could have been dealt with ex tempore. This 19 month delay (which was followed by a further 17 month delay before the Supreme Court refused the appellant's application for leave to appeal to the Privy Council) amounted to a breach of the constitutional guarantee of a hearing within a reasonable time.

A symbolic remedy was required. The Board was plainly tempted to simply hold that its decision finding a breach would be sufficient, but on balance it decided to make a modest reduction in the sentence: four years' imprisonment was reduced by six months.

The appellant had been on bail since before his trial, and naturally enough – as his case was apparently hopeless [Macbeth again: " ... full of sound and fury, signifying nothing"] – he had done nothing to hurry things along, such as asking when he might hear the result of his appeal (20); but he was not at fault for that: the delay was a matter of constitutional significance for which the authorities were responsible.

In addressing delay the Board applied the approach in Boolell v The State (Mauritius) [2006] UKPC 46 (blogged here 18 October 2006): three questions must be asked: is the case complex, has the defendant contributed to the delay, and has there been delay by the authorities?

Some of the delay in the present case didn't count because it occurred to accommodate the appellant's counsel's commitments: this was a three year period between the trial and the appeal to the Supreme Court.

Strasbourg approves the special advocate procedure

The special advocate procedure has received endorsement from the Strasbourg Court: A v United Kingdom [2009] ECHR 301 (19 February 2009).

The special advocate procedure may be resorted to where it is inappropriate to permit a party to the proceedings to know the full extent of the evidence against him. How can the proceedings be made procedurally fair?

Here the issue was whether there were the necessary reasonable grounds to continue the appellants' (referred to as the applicants here) detention under legislation aimed at preventing terrorist activity. The tribunal, the Special Immigration Appeals Commission (SIAC) had full access to the evidence. Some of the evidence was "closed" – not disclosed – and a special advocate was given full access to it in order to make submissions to SIAC on behalf of the applicants to test its reliability. Of course it would be necessary to devise some means of allowing the special advocate to obtain relevant instructions from the applicants. So each case turned on its own facts as far as the issue of procedural fairness was concerned.

The Grand Chamber's remarks on the special advocate procedure are at paras 209-217. The important general principle is in para 218:

"... it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, [fairness] required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him."

This does not mean that the party who does not receive full disclosure must be satisfied with a lesser degree of fairness than would otherwise apply.

Here the Grand Chamber found, obviously without going into a lot of detail, that there had been breaches of fairness in respect of some of the applicants. For one group unfairness arose because the link between their financial activities and al'Qaeda was not disclosed so they could not challenge it. For another, the main evidence against them was in closed material and the evidence to which they had access was insubstantial and of no assistance to them in challenging the relevant allegation.

For other references to the special advocate procedure, see the Index to these blogs. An important House of Lords case is R v H [2004] UKHL 3 (pre-dating the start of this site), which I have discussed in "Public interest immunity and fairness to the accused" [2004] NZLJ 301. The special advocate procedure was designed to achieve the absolute standard of fairness to the accused that was required by that case.

Abuse of process fundamentals

There is a small part of the brief judgment of the High Court of Australia in PNJ v R [2009] HCA 6 (10 February 2009) that is of interest to us all.

It concerns the concept of abuse of process, and is as follows (3):

"It is not possible to describe exhaustively what will constitute an abuse of process [Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265-267 [9]- [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2006] HCA 27.]. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics [Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286 per McHugh J; [1994] HCA 42. See also Batistatos [2006] HCA 27; (2006) 226 CLR 256 at 267 [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ.]:

(a) the invoking of a court's processes for an illegitimate or collateral purpose;

(b) the use of the court's procedures would be unjustifiably oppressive to a party; or

(c) the use of the court's procedures would bring the administration of justice into disrepute."

Indeed so.

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.