Formalism and pragmatism

Readers of Richard A Posner's "The Principles of Jurisprudence" (1990, Harvard University Press) will be well acquainted with his criticism of legal formalism. Essentially, formalism regards the law as containing answers to all the problems it will encounter, whereas pragmatism recognises that judges have to look outside the law for just solutions to legal problems.
One might ask, is Shaheed formalist or pragmatic? It is criticised by those who would wish the issue of admissibility of evidence obtained through a breach of the accused's rights to be determined by application of rules. An appropriate rule, they argue, would be that evidence obtained in breach of the accused's rights is inadmissible. Plainly, such arguments suppose the law to be formalist. If, therefore, Shaheed itself is formalist, there appears to be a contradiction in its critics' arguments. They cannot criticise it for not being what it is.
The ultimate question pursuant to Shaheed is whether exclusion of the evidence would be a proportionate response to the breach of rights through which it was obtained. This amounts to weighing the seriousness of the alleged offending against the seriousness of the wrong suffered by the accused. We therefore have to decide whether these matters are best assessed in formalist, or in pragmatic, terms.
The seriousness of the alleged offending is precedent-determined in the light of the legislation creating the offence and the penalty. Precedents for sentencing incorporate the relevant policy considerations. In the absence of precedent as a guide to the seriousness of the offence, courts would be guided by the maximum penalty and the legislation relating to sentencing. In other words, the answer to assessing the seriousness of the offence lies within the bounds of the law: it is a formalist issue.
The seriousness of the wrong done to the accused is also precedent-determined. This is because a large body of case law has developed around the consequences of wrongful conduct of the authorities in the obtaining of evidence, both before and after the enactment of the New Zealand Bill of Rights Act 1990. The importance of the infringed right is determined in formalist terms.
It may be, that in the absence of any precedent or principles in the common law, the courts will have to take a more pragmatic approach to the assessment of this balance, but once that is done in a new case, the requirements of stare decisis dictate that formalism will become the appropriate approach to similar subsequent cases. Precedent requires that the application of Shaheed rapidly becomes formalised.
Critics of Shaheed who, rightly - although Posner would disagree - reject pragmatism, and who insist on formalism, should agree with Shaheed. What they really object to is judicial discretion. They fear arbitrariness. However, discretion in the context of formalism is not lawlessness. The Supreme Court of the United States has recently, in Hamdi v Rumsfeld (see last blog), taken a formalist stand, upholding fundamental legal values in the face of the exigencies of present times.

Just hearings for detained "enemy combatants"

In Hamdi v Rumsfeld, 542 US 507 (28 June 2004) the Supreme Court grappled with the rights of a detained man, allegedly an "enemy combatant" in the face of his application for release. The Supreme Court analysed the problem as a conflict between "the private interest that will be affected by the official action" against the Government’s asserted interest, "including the function involved." It will be noted that the problem is thought of, not as a triangulation of interests, but as a conflict between two interests.
The plurality of the Court recognised,
"…as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."
And further,
"Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad… . We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker."
On the other hand,
"… the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant."
The parties were left to devise an appropriate form of procedure. The plurality recognised that the tribunal could be military, and that it might require an onus on the accused, and that full disclosure of the Government’s evidence need not necessarily be made to the accused. Hearsay may be permitted, and even a brief summary based on hearsay may be sufficient for the Government to put the accused to disproof.
Ronald Dworkin has commented on the extra-ordinariness of the placing of the burden of proof on the accused, and on the difficulties that he may confront even if assisted by counsel: http://www.nybooks.com/articles/17293.
Clearly, in times of war, the law must be practical. A solution might be found in adopting, or adapting, the Continental system of pre-trial investigation involving the proces verbal and the dossier, and the trial system of intime conviction (when conviction raisonee is inappropriate). It is possible to have a respectable justice system that does not involve full disclosure, that is not averse to hearsay evidence, and that does not involve adversorial procedure in the sense that term is understood in the Anglo-American legal tradition. In the Continental system the judge must ask himself whether, as a matter of conscience and good faith, he is "personally convinced" of the truth of the prosecutor’s allegation. The difficulty is whether that state of mind can exist where the defence has not had full access to, or opportunity to challenge, the evidence presented by the prosecution.

Policy and recognition of defences

The flexibility of the common law is such that policy prevails when recognition of new defences is in issue. Illustrating this is Behrooz v Secretary of the Department of Immigration [2004] HCA 36 (6 August 2004). The issue was whether it would be a defence to a charge of escaping detention as an illegal immigrant that the conditions of detention were inhumane. The 6-judge majority of the High Court of Australia held that no such defence, amounting to a right to escape, could be recognised. Kirby J, dissenting, held that the common law permitted such a defence. The parties recognised that this was not a case where the facts supported a defence of necessity.
It would be wrong in principle to exhalt any single dissenting judgment in cases where the split is so uneven, but this case shows how contrasting use may be made of considerations such as existing common law, the relationship between courts and the legislature (under Australia's Constitution), international law, and the limitations of practical reality as far as alternative remedies for detainees are concerned.

Fairness and access to witnesses

In USA v Moussaoui USCA 4th Circuit No 03-4792, 13 September 2004, the prosecution refused to permit the accused access to three detainees whom he wanted to call as witnesses. The detainees were (are) under interrogation, and according to the prosecution it would not be in the public interest to interrupt that process. The Court recognised that fundamental questions arose here, including the accused's constitutional right to a fair trial. The parties were ordered to try to negotiate a satisfactory procedure.
Here, the issue of the right to present a defence was essentially that dealt with, on different facts, in R v B [1995] 2 NZLR 172 (CA) and R v Griffin [2001] 3 NZLR 577 (CA). It may be, upon careful analysis of the circumstances, a fair procedure can be devised; but if not, the proceedings should be stayed, at least until such time as adequate access to witnesses is granted to the accused.

Interception and search

The extension of warrants to intercept private communications, from oral to any form of communication, pursuant to s 35 and Schedule 2 of the Crimes Amendment Act 2003[NZ], has not drawn all private communications within the same warrant procedure. This is because, as the Court noted in R v C 5/8/04, CA184/04, the new legislation only covers, because of its definition of "intercept", interceptions that occur while the communication is taking place or is in transit. Therefore, records of text messages retained by a service provider can be seized under a search warrant but not under an interception warrant. Of course, a search warrant cannot be issued for material that does not exist at the time the warrant is sought.
What, one might wonder, is the position in relation to email messages that have not been received by their intended recipient? Until received, the records of them held by the service provider are not records of completed communications, so their "in transit" quality appears to make the interception warrant procedure applicable. They may, however, be received between the application for the interception warrant and its being used, in which case a search warrant would be needed. Plainly, the police will have to seek both types of warrant in such cases.
Does this mean the police need to have reasonable grounds to believe that a communication has both been received and not been received?

Applying Shaheed: principles

For an article on three principles to use in applying Shaheed, see this link ...

The prosecution has to prove guilt; does it also have to prove its evidence is admissible?

One would have thought, prior to R v P 11/6/04, CA102/04, that if the defence advanced grounds for disputing the admissibility of prosecution evidence, then the prosecution would have to satisfy the court that its evidence was indeed admissible. The party adducing evidence should have to establish that such evidence is admissible. The same applies, one would have thought, to defence evidence: if the prosecution advances proper grounds for objecting to its admission, the defence should have to establish the admissibility of the evidence it proposes to use.
Not so, we now are told in P. The court likened the pre-trial procedure for obtaining rulings on admissibility under s 344A of the Crimes Act 1961, to civil proceedings to review a determination on the issue. The result should be the same, said the Court, as far as the burden of establishing the issue is concerned. Therefore, said the Court, under s 344A the defence must satisfy the judge that the evidence is not admissible.
The likening of the two kinds of proceedings is fallacious. The wording of s 344A is such that it requires the party seeking to adduce the evidence (usually, but not necessarily, the Crown) to obtain an order that its evidence is admissible. The court needs to be satisfied that the evidence is admissible before it can make the order. By contrast, in civil proceedings for review of an order admitting evidence, the party objecting to admission of the evidence (usually - not that this form of procedure is often used, for obvious reasons - the accused) has the burden of persuading the court that the order of the court below was erroneous. The party with the burden is different, according to which form of procedure is used.
It is unlikely that s 344A was introduced in order to put the burden of persuading the court on the accused, contrary to the plain meaning of its words.
The better view, it is respectfully suggested, is that of the Privy Council in Mohammed v The State [1999] 2 AC 111, holding that when there is an issue of breach of rights, the prosecution has to prove beyond reasonable doubt that there was no breach. If it cannot do so, and if the issue is the fairness of the trial, then the evidence cannot be admitted; but if the issue is compliance with some other, non-absolute right, then a balancing exercise is required. Only in the latter case, where balancing occurs, are the notions of burden and standard of proof on the issue of admissibility inappropriate. That point is only reached, however, after the prosecution has been unable to exclude a reasonable possibility that a breach of rights occurred.

Between finding evidence and getting a search warrant: illegal police occupancy of premises

A recent decision illustrates problems that arise because of a gap in the law. It also illustrates how judicial reasoning can be uninformative.
When a statutory power of warrantless search for drugs has come to an end, but stolen property has been discovered, the need for a search warrant to seize that property creates a gap in the continuity of lawful police action if they remain, without permission of the occupier, on the property pending grant of the search warrant. The consequences of this hiatus for the admissibility of the evidence of discovery of the stolen property was considered by the NZCA in R v H 25/8/04, CA233/04. On the facts of that case, the actions of the police in remaining in a garage attached to a dwellinghouse and sorting through property found there while they waited for the search warrant to be obtained, was held to be unlawful but reasonable. The Court held that even if the conduct was unreasonable the evidence would be admissible under the Shaheed balancing test as no adverse consequences flowed from the unreasonable conduct. What had occurred was merely a technical failure in the means used by the police to secure and preserve the evidence.
Plainly the decision is correct on the facts of the case. Readers may wonder what the Court meant when it said that no adverse consequences flowed from the conduct of the police. The Court does not elaborate, but presumably it envisages situations where police presence caused some loss to the accused, such as inability to earn a legitimate income during that period, or perhaps some extra-ordinary disruption to the legitimate daily routine of the occupier.
Shaheed requires that exclusion of the evidence should be a proportionate response to the misconduct. The difficulty that arises in judicial reasoning when the court proceeds to consider what the consequences would be if the search had been found to be unreasonably conducted, is that there are no facts in the case to illustrate such a finding, because the conduct that was found to have occurred was reasonable. To say that if the court had found the search to have been unreasonable, the balance would nevertheless favour admission of the evidence, tells us nothing about how the balancing exercise works because there are no illustrative facts.

The triangulation of interests fallacy

Some criminal courts apply a model that they call a "triangulation of interests" when they purport to determine whether a course of action would be fair to the accused. According to this model, which is flawed, the interests of the accused are balanced against those of the community and those of the victim. It is false to suggest that a fair trial for the accused is not a community interest. Fair trials for accused persons is so important that the community, through its laws, recognises that the prosecution must prove guilt beyond reasonable doubt before a conviction can be entered. Similarly, fair treatment for victims is also an important community interest. However, criminal trials are different from civil trials in an important respect. In civil cases fairness can be a matter of triangulation of interests. That may mean that proceedings have to continue notwithstanding some forensic disadvantage to a party. The court, in these cases, has the task of ensuring any such disadvantages do not amount to civil unfairness in a triangulated sense, and of staying the proceedings if there is no other way of avoiding an unfair trial.

But in criminal cases, the accused's right to procedural fairness is the dominant, or basic, concern. In contrast, the prosecution may have to accept some unfairness, for example where probative evidence against the accused is ruled inadmissible for public policy reasons. It is often said that if an accused cannot be tried fairly then he should not be tried at all. Triangulation is not an appropriate method of determining unfairness to the accused, but unfortunately this point has not always been clear.

In R v A (No 2) [2002] 1 AC 45 (HL) at 65 Lord Steyn acknowledged the absolute nature of the accused's right to a fair trial, and that a conviction obtained in breach of this right cannot stand (citing R v Forbes [2001] 1 AC 473, 487 para 24). He referred to the balancing exercise as being directed at what a fair trial entails. This asks us to contemplate a triangulation process to determine what course is appropriate, and to use that to define the procedural fairness of the trial from the accused's point of view. One might wonder whether, if the meaning of "fair trial" is determined by balancing, the right to a fair trial can really be said to be absolute.

Another variation on the triangulation model was used in Mohammed v The State [1999] 2 AC 111 (PC), in which Lord Steyn was a member of the Board. The model used in this case envisages the balancing exercise as applicable to rights that are "lesser" than the accused's right to procedural fairness, but in respect of the latter right no balancing is permitted because his right is absolute. This seems to leave intact the meaning of "fair trial" but without saying what that meaning is.

There is, unfortunately, some evidence of a drift back to a flawed approach whereby fairness to the accused is seen as something that can be diminished (derogated from). In R(Ullah) v Special Adjudicator [2004] UKHL 26 (17 June 2004) Lord Steyn, in some obiter comments in para 44 that were, it is respectfully suggested, unfortunate, said that the rights in Article 6 of the Convention (which include the accused's right to a fair trial) are subject to derogation in time of war or public emergency, in which circumstances a triangulation of interests arose. It is difficult to see what relevance extreme conditions have to the ordinary administration of the law. The other Law Lords did not refer to this point, and Lord Carswell, said (carefully) that he agreed with what Lord Steyn and Lord Bingham said about Articles 2,4,5,7 and 8 (ie omitting 6). Lord Bingham referred to the need for a "flagrant" denial of the right to a fair trial, but he effectively said in para 24 that that means that there must be a strong case for the claim that there would be unfairness. Baroness Hale rather briefly, and confusingly, said she agreed with Lords Bingham, Steyn and Carswell.

For an update, see my tribute to Lord Bingham in this commentary, 16 September 2010.

Is partial fairness acceptable?

In USA v Barnette [2004] UKHL 37 (22 July 2004) the House of Lords considered the problem of whether a judgment from a foreign court should be enforced in the UK although that foreign judgment may have arisen from proceedings that were unfair to the party opposing enforcement. As it turned out, the HL decided that the foreign court proceedings did not involve unfairness, so consideration of the problem was obiter. However, of interest is the question of whether degrees of unfairness may be tolerated. Parts of Barnette refer to the need for a "flagrant" or "gross" denial of fairness, and the need for "an extreme degree" of unfairness.
It is suggested that a distinction exists between degrees of risk of unfairness, which is a proper consideration, and degrees of unfairness, which is a fallacy. Dicta relied on in Barnette refer to the threshold that needs to be met before the court will act to prevent a breach, in other words, how sure the court needs to be that a breach of fair trial rights had occurred. Some rights are subject to qualification, and in relation to those it may be correct to refer to a gross denial of them, but the right to a fair trial is recognised as fundamental, primary and absolute. References to flagrant breaches or gross breaches of the right to a fair trial should be read as meaning breaches which are clearly demonstrated and not merely speculative.

Personal searches on suspicion

The common law has constrained the ability of police officers to search suspects, the greatest power being in relation to suspects who have been arrested. Arrested people may be searched if there is a possibility that a weapon will be found, in the interests of preventing harm. There has been no general common law power to search people, and where powers of search exist they have been created by statute. For example, s 202B of the Crimes Act 1961 [NZ] allows a police officer to search a person if there are reasonable grounds to believe that an offensive weapon will be found.
The Supreme Court of Canada in Mann v R [2004] SCC 52 (23 July 2004) has changed the common law by permitting a police officer to "pat down" a person if the officer can (if challenged to do so in court) articulate a reason why such a procedure was necessary to protect the safety of the officer. Such "pat down" searches occur without necessarily involving the detention of the person, and consequently rights that come into play upon detention do not arise. The officer must, of course, be acting in execution of duty in speaking to the person, and this includes the general duty to prevent and investigate crime. The person need not therefore be suspected of committing an offence.
Plainly, while it is sensible to allow officers to ensure their own safety while they act within the law, difficult issues of fact may arise because of the fine line between patting down and ascertaining the contents of a pocket. Such a line was breached in Mann, where the officer reached into a pocket where he had detected something soft (which turned out to be a bag of cannabis); he had gone beyond acting to secure his safety. There could easily be disputes over whether the person consented to revealing what was in his pocket, although it must be acknowledged that the courts are used to determining such disputes. It is, of course, inherently unlikely that a person would give free consent to a search, if he knew that the officer had no right to require it, when it would inevitably incriminate him.

Eroding jury unanimity

In R v Siloata 14/7/04, CA477/03 the NZCA held that when the presumption of purpose of supply applies upon proof that the accused had possession of a particular quantity of drug, the accused has to disprove that purpose to the unanimous satisfaction of the jury: there is no room for disagreement among jurors about this. If one juror thinks the accused has not satisfied the burden of proof then all jurors must find him guilty.

The Court said that to hold otherwise would defeat the reason for having the statutory presumption of purpose.

Unfortunately, the Court's reasoning means that the presumption cannot be used unless all jurors agree that the accused had possession of the necessary quantity of drug. This disadvantages the prosecution. The Court's reasoning confuses the fact-finding role of individual jurors (each of whom should be able to use the presumption if they find the necessary preliminary fact proved) with the verdict-finding role of the jury as a whole (which has to be agreed on its verdict).

Update: readers will be pleased to note that the Supreme Court has overruled the Court of Appeal's decision on this point: Siloata v R 16/12/04, SCC CRI 8/2004.

Information obtained by torture

In A and others v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) it was recognised that the Court may permit information obtained by torture carried out on an informant by strangers to the litigation outside the jurisdiction to be used by one party to the proceedings in support of its case for extradition of the opposing party. This introduces a moral cloud over the Court's readiness to prevent an abuse of its proceedings (or to prevent an abuse of executive power).

Update: this decision was overruled in A v Secretary of State for the Home Department [2005] UKHL 71 (noted here on 9 December 2005).