Another look at the right to legal advice

The relationship between the right to legal advice and the right to a fair hearing, discussed here in commentary on R v Sinclair, 15 October 2010, was again a central theme in yesterday's United Kingdom Supreme Court decision, Cadder v HM Advocate [2010] UKSC 43. In this case the law of Scotland was brought into line with the law in other jurisdictions that apply the European Convention on Human Rights.

I suggested that Sinclair will have to be applied in a way that preserves the defendant's absolute right to a fair hearing. This too is a requirement of Cadder. All members of the Court agreed with the two leading judgments (although technically Lord Mance agreed with Lord Hope but through him also agreed with Lord Rodger). Lord Rodger put the relationship between the non-absolute right to legal assistance and the absolute right to a fair trial this way (95):

"First, as the European Court recognises, [in Salduz v Turkey] 49 EHRR 421, 437, para 55, since the right to legal assistance at the stage when a suspect is to be questioned is an implied right, it is not absolute and must be subject to exceptions when, in the particular circumstances, there are compelling reasons to restrict it. It is not suggested that there would have been any such reasons in this case. But the circumstances in which section 15 of the 1995 Act envisages delaying intimation to a solicitor (the interest of the investigation or the prevention of crime or the apprehension of offenders) could perhaps constitute compelling reasons to restrict the right of access in an appropriate case. It has to be remembered, however, that even a justified restriction may deprive an accused of a fair hearing and so lead to a violation of article 6: 49 EHRR 421, 436, para 52."

Key concepts are the "compelling reasons" needed before the right to legal assistance can be restricted, and the nature of the "fair hearing". Neither of those called for detailed consideration in Cadder.

I doubt that in practice the correct application of Sinclair will produce different outcomes in Canadian courts from those in Scottish courts under Cadder.

Lord Rodger at 100-103 also dealt with the argument that changing the law of Scotland now would create a need to revise all the decisions that had applied the earlier law, by applying dicta in A v The Governor of Arbour Hill Prison [2006] 4 IR 88, per Murray CJ at paras 36-38.

Lord Hope referred to Gafgen v Germany (a case discussed here on 3 July 2008, 3 December 2008, and 25 June 2010, and also in Part 3 of the overview of these notes posted on 14 January 2010). He held at 48 that Gafgen turned on it's facts and was not a limitation of Salduz.

With there now being less wriggle-room concerning rights compliance, attention will focus on whether waiver of the right to legal advice had been constituted by the defendant's continuing cooperation with police questioning.

Provoking nostalgia

I recall that some of the better law students used to laugh at judges' efforts to elucidate the acts reus of attempts, especially impossible attempts, and also at their efforts to explain what provocation is. The latter has remained problematic, as can be seen from today's High Court of Australia decision in Pollock v R [2010] HCA 35. The case illustrates how even Bench Book directions derived from appellate judgments can be held by a higher court to be wrong.

In New Zealand we have repealed the statutory defence of provocation, as it is no longer thought to be necessary since the penalty for murder can in exceptional cases be less than life imprisonment. I am sure that, once the question of provocation is explored in sentencing hearings, the old difficulties will be revived.

Now that the questions concerning liability for impossible attempts have been solved, and provocation has diminished in importance, law students will be starved for intellectual stimulation in criminal law. Is there really anything worth puzzling over as far as the ingredients of offences and defences are concerned? Surely the focus of interest has shifted to admissibility issues, especially those involving rights.

So there is some nostalgia in reading Pollock - those old familiar authorities, those old familiar errors.

The right to legal advice

The requirement that a confession must be voluntary has several components. One is the right to silence, and waiver of this right must be informed and freely exercised (another requirement of voluntariness). The need for "informed" waiver of the right to silence is the reason that a caution has to be administered before a suspect is interviewed. The caution also contains information about the right to legal advice. This right to legal advice protects the "informed waiver" component of the right to silence, but it also extends to protect the ongoing requirement of voluntariness that continues throughout an interview. It should ensure that the suspect knows that he can exercise the right to silence at any time during questioning. The suspect is entitled to advice which will inform him of the significance of the questioning that will occur: its importance for potential proof of criminal liability. That means that the legal adviser needs to know what offences might be charged and the way in which liability for them might arise from the suspect's answers if he is to be questioned.

When one asks what the right to legal advice entails, this context of the right in relation to voluntariness of a potential confession needs to be remembered. Does this context make the operation of the right to legal advice in any particular case a matter for balancing against other interests, such as the public interest in the bringing of offenders to justice? Or is the right to legal advice an absolute right because of its being a component of the voluntariness of a confession?

This latter position, absoluteness, was taken by LeBel, Fish and Abella JJ in R v Sinclair [2010] SCC 35 (8 October 2010) and again in a companion case decided the same day, R v McCrimmon [2010] SCC 36. They said that what needs to be justified is a limitation on the right to legal advice, not the exercise of the right (McCrimmon at 39). Their concern with the power imbalance inherent in a police interview led them to repeat the dissent they had issued in Sinclair.

I should say, parenthetically, that it was illegal for those judges to repeat the dissent: since the matter was decided by the majority in Sinclair, they were obliged to follow the law and apply Sinclair. They could have still in McCrimmon reached the same conclusion as they did, by turning attention to the requirement of voluntariness. Unfortunately, the splitting of issues on appeal has led to the right to legal advice being considered in detail but without its important context of voluntariness. There was necessarily some mention of voluntariness, but this was more by way of aside (see, for example, the majority in Sinclair at 62).

The majority in Sinclair (McLachiln CJ and Charron J, with Deschamps, Rothstein and Cromwell JJ concurring) held that the right to legal advice involves an initial informing and a reasonable opportunity to exercise the right. It does not include a right to have counsel present throughout the interview. There may, during the course of an interview, be a need for a further opportunity for legal advice, but this arises only where it objectively appears that the initial advice could have been inadequate or where a new issue makes an opportunity for advice appropriate. It is not enough that the suspect merely wishes to interrupt an interview, as the suspect can exercise the right to silence. Fundamental to the majority's approach is the view that ascertaining the contours of the right to silence requires consideration of societal interests in the investigation and solving of crimes (Sinclair at 58, 63).

One would have to think very carefully before venturing to disagree with Charron J on a point of the law of evidence. Whether or not one agrees with the majority reasoning should depend on whether one accepts that qualifying the right to silence, by qualifying the right to legal advice, risks jeopardising the absolute quality of the requirement that a confession is made voluntarily. The majority's reasoning seems to be that qualifying those subsidiary rights may be acceptable as long as the voluntariness of any confession remains absolute. That would be analogous to reasoning that has been used in relation to rights associated with the accused's absolute right to a fair trial (see, for example, R(Ullah) v Special Adjudicator noted here, and with reference to judicial difficulties, 3 September 2004).

The Sinclair majority's reasoning is anchored to an appreciation of the "broad sense" of voluntariness required for confessions (Sinclair at 62), but unfortunately these cases have no detailed discussion of voluntariness. The majority makes great claims for the role of the voluntariness requirement (Sinclair at 64: "If anything, our reasons broaden the protection available to suspects, and narrow the ambit of police questioning"), and there will be many who read that sceptically. A consequence of finding no breach of the right to legal advice if there was no impact on the voluntariness of a confession is that there would be no need for the balancing exercise to determine the admissibility of the confession (in Canada, the Grant balancing) in such cases. Of course, if there was an impact on voluntariness, exclusion would be automatic. But cases of lesser police impropriety would be immune from judicial criticism in the form of exclusion. A very "broad" sense of voluntariness would be needed to address those.

Also decided the same day was R v Willier [2010] SCC 37, in which the Court unanimously held that on the facts there was no breach of the right to legal advice. Each of the approaches, so different in philosophy, can still lead to agreement on particular facts.

There is a brief but interesting discussion of the relevance of foreign law (here Miranda) to the question of the meaning of the right to legal advice, in Sinclair at 38-42.

See also my discussion of R v Singh, 2 November 2007. And for the position in Europe, see Salduz v Turkey [2008] ECHR 1542 at para 50-55.

Interpreting positive drug tests in cyclists

I am not a great follower of the sport of cycling. Apparently it is bad for the health of male genitals, and I can see why. But recently a successful cyclist, Alberto Contador, has tested positive for a minute trace of a substance that is banned. His explanation is that it must have been in meat he innocently ate. Farmers do use that drug to improve the muscle mass of their cattle. It seems to be thought that the controversy will be resolved by a second test of Mr Contador's body fluid samples.

 Nonsense. The occurrence of the drug in people who eat meat from the same source as Mr Contador's meal must be examined. The probability of getting Mr Contador's test result, on the assumption that he is guilty of deliberately taking the drug, must be compared with the probability of getting his test result on the assumption that he is innocent. This latter is the proportion of people who have a similar test result who got that result innocently from eating.

Scientific reasoning is comparable to legal reasoning. In science the method of investigation involves attempting to disprove a null hypothesis. For example, if the null hypothesis was “this drug test result could not have been caused by food”, scientific inquiry would involve looking for an instance where the relevant sort of food consumption caused the same test result. Falsification of the null hypothesis was the criterion for scientific advance recognised in the scientific community and famously described by Karl Popper.

In legal reasoning applicable to criminal trials, the prosecution’s hypothesis is the null hypothesis (“this drug test result could not have been caused by food”). But it is not for the defence to disprove the null hypothesis. Of course, the defence could seek to do so, and would win if it did produce evidence that the null hypothesis was false. But generally it is for the prosecution to prove that there is nothing to falsify the null hypothesis. “Progress” in this legal context occurs where there can be no disproof of the null hypothesis, whereas in science progress is disproof of the null hypothesis. Obviously, whereas disproof of the null hypothesis occurs by a specific event, the prosecution’s task of showing there is no disproof of its hypothesis can only be a matter of likelihood.

A disadvantage of the scientific method is that disproof may be a long time coming, and this will slow down progress. Disproof has, in recent times, been complemented by another technique: asking what is the most likely hypothesis behind given observations. Given the drug test result, what is the most likely explanation? Law is similar: given the evidence, is the defendant’s guilt the most likely (to the necessary high standard) explanation? On this approach, conditional probabilities come into play. Hypotheses are compared as explanations for the observations or for the evidence. Bayes’ Theorem is a means of assessing the likelihood of an hypothesis as an explanation for an observed fact.

Mistakes in logic can be identified using Bayes’ Theorem, and it is not necessary for this that actual probabilities are known. A common error in logic is to say that the probability of A, given B, is the same as the probability of B, given A. Using the example of a (any) cyclist, the error would be in saying that the probability of this test result, given that the drug was taken deliberately, is the same as the probability that the drug was taken deliberately, given this test result. Another error of logic is to suppose that the likelihood of the cyclist having cheated can be derived directly from the likelihood of the drug having been in his food. This error is that of ignoring the other probabilities of the cyclist having cheated, taking into account all the relevant facts. A Bayesian approach avoids both these sorts of errors.

Ideas or decisions?

Much that is of interest to criminal lawyers in Dickson v R [2010] HCA 30 (22 September 2010) is not discussed in the judgment.

The appellant had been convicted of an offence against a statutory provision that was invalid by reason of its inconsistency with s 11.5 of the Criminal Code (C'th). The High Court ordered that the charge should be quashed, the conviction entered on it should be quashed, and the sentence should be set aside.

The questions that naturally arise from this did not require decision, but some digression might have been interesting:

• If Mr Dickson had been acquitted at trial, would that have been a valid acquittal?
  
• Was he in jeopardy of conviction?
  
• Can he, if now properly charged, plead previous conviction? Or previous acquittal (in view of the successful appeal)?
  
• Would new proceedings on the same matter be an abuse of process?
  

There are implications of the decision that could be, for Australians, utterly horrifying, as Associate Professor Jeremy Gans suggests.

This decision has what are coming to be hallmarks of the new style of the High Court, at least in criminal cases: one judgment, tightly reasoned, narrowly focused. It is as if the Court has undertaken a physicist-like quest for a unified theory of everything (in the sense of one voice on every issue). Lady Hale would not approve (update: she elaborates here), and I agree with her.

There is nothing wrong with bringing the methods of science to law, but some sciences recognise the value of diversity. The current style does nothing to promote a growth in ideas.

For discussion of "null and void" at this site, see entries for 20 February 2006, 28 July 2006, and 13 May 2008.

The best of the best

Tom Bingham's brilliant article in the London Review of Books (26 March 2009) made many of us think he was just beginning a retirement career as a masterful commentator. His death on 11.9.10 came, therefore, as a surprise as well as an occasion for sober reflection: see the tribute by Alex Bailin QC at UKSC blog.

For me, Lord Bingham's most important contribution was to settle a debate about the status of an accused person's right to a fair hearing. While some judges were prepared to see this as a right that could be qualified by being balanced against the rights of the prosecution and of victims, in Randall v R (Cayman Islands) [2002] UKPC 19 at para 28 Lord Bingham, for the Board, established the absolutist position:

"…the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

And in the House of Lords the same point was made (by Lord Bingham for the Appellate Committee) in R v H [2004] UKHL 3 (5 February 2004) at para 10. This required some delicate manoeuvring around dicta that appeared to support a balancing approach to this right (para 12, citing Lord Steyn in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118). Even so, the issue was not secure: four months after H, Lord Bingham agreed with Lord Steyn in R v Special Adjudicator, ex parte Ullah [2004] UKHL 26 (17 June 2004) who at para 44 called the right a "qualified" right (that is, subject to derogation – a point that is rarely relevant), requiring consideration of a "triangulation of interests" (the accused, the victim, the public) where "compromises" might be required, although the requirement of a fair trial is "a universal norm".

But Lord Steyn had delivered the Board's judgment in Mohammed v The State (Trinidad and Tobago) [1998] UKPC 49 (9 December 1998), saying at para 29 "a breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed." Is there a problem? Was Lord Steyn suggesting a model of fairness where whatever "fair" means, it is absolute, but its meaning is determined by triangulation? That possibility is excluded by H, triangulation is confined to other rights and its results are subject to the test of fairness (see para 36, step 6). Were it to be otherwise, "absolute" would mean nothing. To borrow Larkin's apposite phrase, "one side will have to go".
 
The accepted position is summarised in [2005] New Zealand Law Review 217 at 249 (footnotes omitted):

"The question is not how unfair is the accused’s trial required to be because of proper restrictions on cross-examination, but rather, what restrictions on cross-examination are compatible with the accused’s absolute right to a fair trial? Again, the question is not to what extent may reasonable breaches in identification procedures limit the accused’s right to a fair trial, but rather, what failings in identification procedure are compatible with the accused’s absolute right to a fair trial? The question is not to what extent may disparities in the opportunity of expert witnesses to examine the relevant evidence limit the accused’s right to a fair trial,  but rather, what disparities are compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may pre-trial publicity limit the accused’s right to a fair trial,  but rather, what level of publicity is compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may breaches in the rights relating to police questioning be allowed to limit the accused’s right to a fair trial, but rather, what departures are consistent with both the accused’s right to a fair trial and wider issues of prevention of abuse of process?"

It is now generally recognised that the accused's right to a fair trial is an absolute right: R v Howse (New Zealand) [2005] UKPC 31, para 36; Condon v R [2006] NZSC 62 (23 August 2006) at para 77, 78.

Eight days before Condon was decided, no less a legal scholar than Grant Hammond (who has achieved praise in these blogs) delivered a lecture in which he said (p 20) "The question whether it is possible to have an unfair trial but a safe conviction is maddeningly simple. But there is no clear answer" and he favoured a broad approach whereby if a conviction appeared safe on the evidence at trial, the accused's appeal should only be allowed on unfairness grounds if a balancing of rights supported that conclusion. What was clear to Lord Bingham might only slowly become apparent to others.

In New Zealand we have particular reason to remember Lord Bingham as the judge who delivered the devastating rejection of the Court of Appeal's analysis of the case against David Bain: Bain v R (New Zealand) [2009] UKPC 4 (16 March 2009). Applying the correct approach to the proviso, the Board ordered a new trial. Mr Bain (as all New Zealanders know) was subsequently acquitted of the murders of his parents and three siblings. The New Zealand courts have now changed their approach to the proviso, although the Privy Council insists that the result in Bain would have been the same: Barlow v R (New Zealand) [2009] UKPC 30, para 21.

Admissiblity issue or defence?

There is a difference between a procedural error in steps taken by an enforcement officer which provides a defence to a charge, and an error which results in evidence being improperly obtained: Birchler v Police [2010] NZSC 109 (30 August 2010). An officer had wrongly decided that a breath test could not be carried out at the roadside, and required the suspect to accompany her to the police station for the testing procedures. The accompanying was not voluntary (8). The District Court Judge dismissed the charge, instead of ruling that the improperly obtained evidence was admissible pursuant to the balancing exercise set out in s 30 of the Evidence Act 2006.

In the absence of reasonable compliance with the procedures the defendant had a defence (17). It would have been wrong for the Judge to have proceeded to the balancing exercise, because to do so was "quite inconsistent" with the statutory procedural scheme. The High Court, on an appeal on a question of law, held that the District Court could have undertaken the balancing exercise instead of dismissing the charge. The Supreme Court overruled that and set aside the High Court's order which remitted the case to the District Court for reconsideration.

The Supreme Court took the opportunity to correct a troublesome dictum in R v Gallichan [2009] NZCA 79 at 18, in which the Court of Appeal had indicated that failure to challenge the admissibility of evidence before the close of the prosecution case prevented the issue being raised. That was wrong (Birchler at 21).

Saved by sunken dreams

In Attorney-General v Tamil X [2010] NZSC 107 the New Zealand Supreme Court applied JS (Sri Lanka) v SSHD [2010] UKSC 15 (discussed here 16 April 2010). The case concerns whether X was disqualified from obtaining refugee status. Two grounds for disqualification were advanced: his participation in a crime against humanity, and his commission of a serious non-political offence.

Here, the sinking of a ship which carried weapons meant that no crime against humanity was committed as a result of any support that X may have given, as Chief Engineer onboard, to the Tamil Tigers during the vessel's last voyage bound for Sri Lanka. The Crown had acknowledged that no attempt was committed on the particular facts, which included findings that X was a loyal supporter of the Tamil Tigers, and he knew that he was helping to smuggle arms to Sri Lanka.

The Supreme Court held that all the necessary elements for X's personal responsibility for participating in a joint criminal enterprise to commit crimes against humanity were established on the facts (71), except that there was no proof of criminal acts of the Tamil Tigers in which it could be said that X was complicit, as the sinking of the ship resulted in no use of the weapons (72, 73, 75, 78). The point of joint enterprise liability is to make liable those who assist or contribute to crimes that are actually committed (79).

Another issue was whether X had committed, by other conduct, a "serious non-political crime". He had been convicted in India of being a party to the intentional destruction of a vessel carrying explosives in circumstances where danger to lives was likely (83). If this was accepted by the New Zealand authorities, that would establish X had committed a "serious crime", but was it "non-political"? That term is not defined (87). It is a question of the context, methods, motivation and proportionality of the crime to the offender's political motives (90), bearing in mind that (although it is not the norm in New Zealand) violence may be an incident of political action in many other countries (91, applying Kirby J's dictum in Minister for Immigration and Mulitcultural Affairs v Singh [2002] HCA 7 at para 106).

Here, X's conduct was political: there was not the "indiscriminate violence against civilians which would make the link between the criminal conduct and any overall political purpose too remote." (95)

There was thus no evidence of non-political crimes that would have disqualified X from obtaining refugee status. Nor was there evidence that he should be disqualified by reason of participation in a crime against humanity.

It seems that the Crown's concession that there was no attempt to commit a crime against humanity on these facts was important to the outcome. It was properly made, in view of decisions in domestic law about the difference between preparation to commit an offence and attempting to commit it. The distinction is sometimes difficult to draw, and can be controversial. The failure of a bomb to detonate would not save participants from liability for the attempt. But being interrupted in the process of assembling the ingredients for the bomb might. Generalisations are dangerous.

Doing the right thing

And now, on the actual date of the sixth anniversary of this site, here – as my 400^th posting - is a note on Petryszick v R [2010] NZSC 105 (24 August 2010).

The only grounds on which the Court of Appeal may dismiss an appeal against conviction are set out in s 385(1) Crimes Act 1961, and the substantive right to appeal (s 383) is not restricted - in the absence of express or implied authority in primary legislation - by authority to make procedural rules (32). Nor could the inherent right of the Court to control its own procedure be invoked to undermine the general standard of process required by s 25(h) New Zealand Bill of Rights Act 1990.

There will therefore be occasions when the Court must address grounds for appeal specified in preliminary documents without the assistance of a fully prepared argument for the appellant. Here the appellant had been in custody and correspondence from the court had been wrongly addressed, there were delays in approving a grant of full legal aid for his appeal, official correspondence did not refer to points he had raised, there were delays in giving the appellant information he needed to prepare his appeal. The Court of Appeal had dismissed the appeal without considering all the matters that had been raised.

The humorous side of this case is in the reaction of the Court of Appeal to the sort of quotidian frustrations that ordinary people can encounter in their efforts to obtain the service to which they are entitled from the bureaucracy. Consigning such a case to the wastepaper basket of dismissed appeals is not the right thing to do.

Rules of procedure should assist access to courts. The present Supreme Court case is reminiscent of the spirit of its earlier decision in Zaoui v Attorney-General, noted here on 25 November 2004. The lesson delivered by the Privy Council in Taito v R (New Zealand) [2002] UKPC 15 needs to be remembered. People who look for reasons to institute a criminal cases review tribunal will take the Court of Appeal's approach to Petryszick as an example.

Time

This week is the sixth anniversary of the start of this site.

Other milestones? Forty years ago I was dux of the same secondary school that Lord Rutherford was dux of in 1889. I smile at the bathos. Perhaps in some other dimension Rutherford's loud laughter echoes down the corridors of the Cavendish when he sees the result of searching this site for the word "smug".

I came to law after a science degree which left me fearless of mathematics, statistics and probability. This leads to the next anniversary.

Thirty years ago I had, as a spin-off from my PhD thesis, an article published in the Criminal Law Review. The publishers sent me copies of that month's edition.

This contained a fascinating exchange between Sir Richard Eggleston and, in the letters part of the journal, Jonathan Cohen over the forensic use of probability reasoning.

Consequently, I became familiar with Bayes' Theorem. The book by Bernard Robertson and GA Vignaux, "Interpreting Evidence" (1995) should make this subject accessible for most lawyers. So may my draft paper on the logic of propensity evidence [click here].

Bernard, incidentally, is mentioned on the innocent project page of Victoria University in Wellington. And, to complete a circle within a circle, Graham Zellick – mentioned in the edition of the Criminal Law Journal referred to above, is here in New Zealand now in connection with Victoria University's Innocence Project. Gasp.

So there we have it: milestones, coincidence, criss-crossing lives, earnest endeavours, and time always passing.

Bringing science to law

For more on DNA, see the second part of the article mentioned last time: New Scientist, 18 August 2010.

It confirms that the likelihood ratio is the best way of presenting conditional probability evidence. This will be familiar to anyone who uses Bayes' Theorem.

The simplicity of this approach is so stark that it can be mistaken for complexity. It asks, how much more is the evidence consistent with guilt than with innocence?

Difficulties with DNA evidence arise when scientists try to assign probabilities to each of these consistencies.

In my own humble little way I have offered lawyers an easy introduction to Bayesian reasoning.

It is a paper that has long been in draft form, so I can revise and update it as developments occur.

Interpreting DNA test results

See New Scientist for an article called "Fallible DNA evidence can mean prison or freedom" by Linda Geddes, dated 11 August 2010.

Interpretation of DNA analysis can be subjective and it is vulnerable to suggestion, so that scientists should know nothing of the circumstances in which samples were obtained or about the prosecution theory of the case.

The article points out that a defendant could be wrongly convicted because an analyst says that samples matched, when in fact peer opinions may differ over that and indeed may favour the contrary conclusion.

I suppose some defendants might wrongly be acquitted if an analyst thought there was no match, when peers might think there was a match. Could that happen?

Dismissing judges for misconduct

I imagine that all experienced barristers are familiar with bad judicial behaviour. But how bad does it have to be before a judge can be removed from office?

In Madam Justice Levers, Hearing on the Report of (The Cayman Islands) [2010] UKPC 24 (29 July 2010) the criterion for removal from office was set out [50]:

"The public rightly expects the highest standard of behaviour from a judge, but the protection of judicial independence demands that a judge shall not be removed for misbehaviour unless the judge has fallen so far short of that standard of behaviour as to demonstrate that he or she is not fit to remain in office. The test is whether the confidence in the justice system of those appearing before the judge or the public in general, with knowledge of the material circumstances, will be undermined if the judge continues to sit – see Therrien v Canada (Minister for Justice) [2001] 2 SCR 3. If a judge, by a course of conduct, demonstrates an inability to behave with due propriety misbehaviour can merge into incapacity."

An incident that of itself would have justified the judge's removal from office occurred during a sentencing hearing when the judge made disparaging comments about a complainant and people of her race. These comments [64]

"... showed bias, and indeed contempt, for Jamaicans which extended not merely to the defendant but to his victim, who happily was not in court. The comments about [her] ... were monstrous, suggesting that she should have been sent "home", describing her as "a woman like that" and accusing her of "spreading her goodwill around" – a clear allegation of promiscuity."

We all know that judicial behaviour tends to improve towards the appellate end of the hierarchy.

We are currently going through our own little trauma here, and it seems to be something that blew up out of a very minor error of judgement. Of course I would never read email messages that were not intended for my eyes, but if I did I would be fascinated by the glimpse they gave of the concerns of top ranking QCs. Private and professional lives, friendships and high legal principles, confidentiality and its limits, the individual and the integrity of the courts. The magnification of error by stress, the struggle for a proper perspective.

Reasonable, fair and not necessarily surprising

When is an unannounced forced entry into an occupied dwelling reasonable? In R v Cornell  [2010] SCC 31 the majority held there were sufficient circumstances to make such a search reasonable. These cases will usually be fact-specific, as here, and no new principles of law were established.

 The majority (McLachlin C.J. and Charron, Rothstein and Cromwell J, joint judgment delivered by Cromwell J) stated the general principles: 

"The only issue is whether the lawfully authorized search was conducted reasonably. Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry. While the "knock and announce" principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence. The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time. On appellate review, the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference."
 

In another fact-specific case decided the same day, the Court by the same majority (but here delivered by Charron J) held that the law may require a trial judge to put to the jury matters of law not covered by counsel (even by agreement between counsel), with the result that a basis for conviction which was not the subject of addresses to the jury by counsel may properly be considered and relied on in deliberation of the verdict: R v Pickton  [2010] SCC 32 This is really because the trial must be in accordance with the law, subject to fairness. Here the jury had been asked to acquit based on a factual doubt (as to his being a principal), but that doubt would not, on a wider view of routes to guilt (secondary liability), have exculpated him.

The position in Canada is that, even if the Crown has consistently advanced only one theory of guilt, its case is "a moving target": R v Rose, 1998 CanLII 768 (S.C.C.), [1998] 3 S.C.R. 262. The issue will be whether a change in stance gives rise to unfairness to the accused. It was significant here that "the defence theory itself put the participation of others at issue" (21, the majority's emphasis), and this meant that throughout the trial defence counsel were aware that secondary participation was in issue. The minority considered that the judge's instruction on secondary liability was inadequate.

Exculpatory statements ... and trials in the fullness of time

A brief note on two Privy Council decisions from last week:

Gordon v R (Belize) [2010] UKPC 18 (21 July 2010) is an interesting little reminder that there are times when the prosecution is, in the interests of fairness to the accused, obliged to lead evidence of his exculpatory statement, applying R v Sharp [1988] 1 WLR 7 and R v Aziz [1996] 1 AC 41.

The case also illustrates a misdirection on provocation.

In Maraj-Naraynsingh v Attorney-General of Trinidad and Tobago [2010] UKPC 19 (21 July 2010) we are given a glimpse of what seems to be a relaxed attitude to work in the tropics: the case highlights an absence in that jurisdiction of a constitutional right to a trial within a reasonable time; the right to be brought before a court "promptly" after arrest cannot be extended to include a right to be tried promptly after committal.

Res gestae lives again! And implied assertions are statements.

The majority in Rongonui v R [2010] NZSC 92 did not share the Chief Justice's view that "res gestae" is an outmoded term (see Hart v R [2010] NZSC 91 at 17, noted below).

In Rongonui, Blanchard, Tipping, McGrath and Wilson JJ held jointly that res gestae statements are not within the scope of s 35 Evidence Act 2006 (prior consistent statements) [46]. Terminology might be in doubt, as the judgment refers to "what used to be called" res gestae evidence [47], and at [46] the phrase "words spoken in the course of the events in issue" is used – but that could hardly have been intended to be a convenient substitute for the term "res gestae".

Res gestae statements therefore continue to be admissible in the same circumstances in which they were admissible at common law.

The joint judgment in Rongonui also tidied up what was becoming a needlessly contentious issue: a spurious exclusion of implied statements from the scope of "statements" (see the definition of "statement" in s 4 Evidence Act 2006), especially in relation to the statutory hearsay rule. A statement is an assertion, and an assertion may be express or implied [33]. The Crown in Rongonui could not argue that evidence that the complainant told someone "what had happened" was not an assertion that she had given the same account of events as she was giving in court. Those words carried the implication of consistency, and were accordingly an assertion of consistency, and in the circumstances of this case were an inadmissible prior consistent statement.

There is much overlap between Rongonui and the Court's other decision of today, Hart (see below), especially on the incorporation of what used to be called recent complaint evidence in sex cases into s 35 so that they no longer need to be "recent" in the common law sense, they are admissible as proof of the truth of their assertions, but they are only admissible when the conditions in s 35 are met. That is not a formidable obstacle, as usually the defence in such cases will be alleging recent invention.

It seems to me that if the defence specifies when it claims invention first occurred, consistent statements before that will have a relevance that is more likely to be obvious than consistent statements made after that date, although generalisation is dangerous and the circumstances of each case will need consideration in assessing the probative value of the challenged consistent statement. That there will be difficulties is signaled by the Chief Justice's dissent in Rongonui on the s 35 point.

Barlien got a drubbing today. It has up to now been cited by the Court of Appeal mainly for the point on which it was approved: that when the prior consistent statement is admissible it is admissible as proof of what it asserts. In two cases Barlien has been noted uncritically on other points now corrected by the Supreme Court: in Ringi v R [2008] NZCA 293 it was mentioned as showing the difficulties of s 35, and in a case which carried a suppression order so I only cite its number, CA529/2008, Barlien was mentioned as authority for the proposition that res gestae evidence is no longer admissible. Another aspect of Barlien - observations on potential difficulties concerning identification evidence - has been called into question by the Chief Justice in footnote 29 of Hart; the Court of Appeal cited Barlien uncritically on that point in CA108/2009.

All judges in Rongonui agreed that the trial had involved breaches of s 90(5) Evidence Act 2006, and the joint judgment, with which Elias CJ agreed, contains some comments on deciding when a record is capable of refreshing a witness's memory.

Prior consistent statements

Hart v R [2010] NZSC 91 (23 July 2010) addresses the law of the admissibility of prior consistent statements in the context of a claim of recent invention under s 35 Evidence Act 2006.

The Court was unanimous, and the reasoning in the two judgments is consistent. Blanchard, Tipping, McGrath and Wilson JJ jointly held that the essence of an admissible prior consistent statement is its tendency to respond to a challenge to the witness's veracity or accuracy based on a claim of recent invention [50]. An "invention" is a deliberately misleading statement [51]. It is not always possible to identify exactly when a motive to fabricate arose [52, and Elias CJ at 20]. Therefore it is not necessary that the prior consistent statement was made before the occasion or motive for the claimed invention [53, and Elias CJ at 20]. This is a departure from the position that had prevailed at common law.

The prior statement is admissible as proof of the truth of its assertion [54-57]. This too is a departure from the common law rule that prior statements were only admissible as proof of the witness's consistency.

Elias CJ held that prior statements admissible under s 35 can include what the common law called "recent complaint" allegations of sexual offending [14]. It is now not necessary that such complaints be "recent" in relation to the alleged incident, but their admission does need to be "necessary" to rebut the allegation of recent invention [15].

She also held that a recent invention in terms of s 35 is one that occurred after the events described [16].

Elias CJ disagreed with the Court of Appeal's judgment in R v Barlien [2008] NZCA 180 on several points (I have commented on this case on 8 July 2008): recent complaints are within s 35, and speech that is part of the events (formerly called res gestae – a term that is now to be avoided [17]) can also be admissible "in themselves" [17]. She also doubted that Barlien was correct to exclude from s 35 previous statements by identifying witnesses [footnote 29]. Nor did she consider the legislation would disrupt the course of evidence, as defence counsel would usually indicate the basis for a defence in opening remarks, or would agree that the Crown could lead evidence of the prior statement in examination in chief [19].

Barlien was therefore needlessly alarmist.

Of critical importance will be the necessity requirement: when is admission of evidence of the prior consistent statement "necessary" under s 35? [Elias CJ at 11, joint judgment at 51.] The joint judgment says that judicial experience with the common law will assist in judging the tendency of the statement to rebut the allegation of recent invention. Elias CJ refers to the requirements of relevance in s 7.

Much to rejoice about here, if clarity is what you want. I am a little uneasy about the joint judgment's apparent limitation of "recent invention" to statements that are deliberately misleading [51], because s 35 allows them to be admitted to respond to a challenge to the witnesses "accuracy", not just "veracity".

Collateral attack, witness immunity, and abuse of process

An orthodox application of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL), prohibiting the use of civil proceedings to mount a collateral attack on a decision in a criminal case, is Hurnam v Bholah (Mauritius) [2010] UKPC 12 (12 July 2010).

Issues that have been decided to have reached the standard of beyond reasonable doubt cannot be taken to be capable of having a different outcome if they were to be decided on the balance of probabilities. The exception is where fresh evidence passes a "rigorous test" (per Lord Diplock in Hunter at 545).

In Hunter, the Birmingham Six case, the accused were held beyond reasonable doubt at voir dire not to have been subjected to violence before they made statements which were therefore admissible at trial, so subsequent civil proceedings by the accused against the officials for alleged assault were stayed as an abuse of process.

Ultimately the Birmingham Six were shown to have been wrongly convicted – even wrongly accused – and they received compensation.

An interesting aspect of Hurnam v Bholah is its reference (37-38) to French law on issue estoppel. In Mauritius the substantive law is based mainly on the French Napoleonic Code, whereas procedural law is mainly English. In English common law the position was that neither an acquittal nor a conviction was admissible on the same issue in civil proceedings: Hollington v F Hewthorn & Co Ltd [1943] KB 587. This was the applicable law in Mauritius. The position in the UK was changed by statute (s 11 Civil Evidence Act 1968) so that a conviction is prima facie evidence in civil proceedings that the person did commit the offence. But French law permits the results of criminal cases, whether convictions or acquittals, to be used in evidence in civil cases. However this has been held not to be part of the procedural law of Mauritius.

There is an obvious irony in Hunter being authority for preventing civil proceedings being used to undermine a criminal conviction, as the convictions there were unsound. But the point is that a conviction is a matter of criminal law and it can only be challenged on appeal or on prerogative review.

In the present case the Board held (31) that Mr Hurnam was seeking to use civil proceedings, not to obtain damages, but to restore his reputation by calling into question the guilty verdict in the criminal proceedings. He had been found guilty of conspiring to fabricate an alibi, and his civil proceedings claimed that the allegation that he had conspired to fabricate the alibi was false.

Lord Brown agreed with the judgment of the Board delivered by Lord Rodger, and added that witness immunity protected the witness whose evidence supported the allegation of conspiracy to fabricate the alibi from subsequent suit (Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435), the policy being that witnesses should not, for fear of being sued for something they say, be afraid to tell the truth (citing Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208). There was no issue of witness immunity in Hunter and Lord Brown considered that Hunter was a weaker case for striking out than was the present case.

Stubborn beliefs and the elusive truth

On how we let our beliefs get in the way of the facts, and on how contrary facts merely entrench our preconceived beliefs, see this article from the Boston Globe, 11 July 2010, "How facts backfire" by Joe Keohane. 

While that article is not concerned with forensic fact finding, it does have fundamental implications for trial procedure.

The article mentions research that indicates that persuasion requires an adjustment of the other person's (fact-finder's) belief about the issue, not by presenting facts that threaten the person by putting them in the position of being wrong, but by interactively presenting evidence that directly confronts preconceived beliefs. To lawyers this implies that jurors or fact-finding judges should be able to question witnesses directly. Another suggestion is that increasing the "reputational cost" of error could discourage people from adhering to false beliefs. This could be done by making jurors answerable for their decisions, for example by exposing them to media questioning after their verdicts.

Current practice could hardly be more different. Our trial procedure may discourage accurate fact finding.

It takes all sorts ...

I have previously noted Lord Rodger's dark humour. Unless he is one of those chaps who seems funnier the further away one gets from him, here he goes again:

" ... just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. ...".

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010), at para 78. I suspect he was assisted in writing that passage by what Lady Hale has called "the extremely bright young Judicial Assistants in the Supreme Court": opening address in 'Ten years on': A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010 (4-5 June 2010).

HJ isn't a criminal case, so I don't need to comment on it here.

I was surprised to hear, when she was interviewed on a radio programme during her recent visit to New Zealand, that Lady Hale sounds much different from what her somewhat tousled ra-ra-hockey-sticks appearance might suggest. She was incredibly patient with some rather mundane questions.

For discussion of HJ, see Aidan O'Neill QC, "Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31" at UKSC blog 12 July 2010.

Free speech and foolishness

Once again our passionate little nation is in thrall to the Bain case (see my comments posted 8 June 2009). Last night a television documentary tried to persuade us that the acquitted David Bain should not receive compensation. At least that was its import; ostensibly it merely suggested that there was no case to be made against one of the five murdered victims, Robin Bain. At trial the defence had suggested that Robin was the killer.

There will always be differences of opinion over who was the murderer. People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue. Even people who sat through the whole case disagree on its outcome. If people can't agree on whether there was a reasonable doubt, how can they agree on whether on the balance of probabilities the acquitted David Bain should receive compensation?

The case has almost left the law behind. It is now a form of entertainment, as is the expression of all ill-informed opinion. My own views are just as likely to be silly as those of anyone else who was not at the trial. I can argue either side, and in fact do, depending on who I wish to irritate. The tragedy has become a farce.

Multiple judgment cases: an illusory paradox

Sometimes multi-judgment cases challenge the analytical powers of readers. Especially when there is no headnote, and also when they seem to be of only marginal interest.

Thanks to David Cohen's interesting comments on McDonald v Chicago [2010] USSC No 08-1521 (28 June 2010) I can mention that state and local anti-gun laws might be unconstitutional. A headnote is provided for this case, but it is so complex that only students of US constitutional law would be motivated to study it.

What I do find interesting is Professor Cohen's point that this case is an example of a paradox. It seems (I rely on his analysis) that the reasons for holding the relevant law constitutional were accepted by more judges than those who found reasons to hold it unconstitutional, yet the outcome of the case was that the law was unconstitutional.

The "paradox" of there being an excess of judges supporting some of the reasons for what turns out to be the minority conclusion is illusory because the total judicial support for those reasons consists of dissenting judges who regard them as adequate, and majority judges who do not. The decision in the case is supported by reasons held to be adequate by the majority of judges. If any of the majority judges indicate support for reasons relied on by the minority, those judges are not thereby lending support to the dissenters' conclusion.

Was the relevant law in McDonald unconstitutional? Four justices held yes, because it infringed the due process part of the Fourteenth Amendment, and one justice held yes, because it infringed the privileges and immunities clause of that Amendment. So, five justices held the relevant law unconstitutional. That being the majority, that was the decision.

It is true, but irrelevant, that in some respects these majority justices recognised reasons that would have been insufficient to support their conclusion. Their partial agreement with reasons relied on by minority justices does not add to the tally of dissenting justices.

What matters for the result is how many justices found at least one reason to hold the relevant law unconstitutional. Five. The number of justices who found no reason to hold the law unconstitutional was four. It is a fallacy to say that a justice who finds only one reason to hold the law constitutional should vote constitutional.

The reasons for the decision of the Court are not the same as the reasons for the individual judgments. When asking what the case is authority for, one looks at the reasons for the decision of the Court: McDonald is (again, relying on Professor Cohen's summary) authority for the proposition that the due process requirements of the Fourteenth Amendment render unconstitutional the laws considered in that case.

Professor Cohen's "paradox" is not really a paradox. It is a mundane result of what is sufficient reason for a decision.

Now that you are in the mood for analysing multi-judge cases, have a look at R(Smith) v Secretary of State for Defence [2010] UKSC 29 (helpfully discussed by Alex Bailin QC and also by Aidan O'Neill QC). It deals with the extra-territorial effect of the European Convention on Human Rights, and American readers who see the big picture might compare it to Boumedeine v Bush, noted here 13 June 2008.

Drug discovery in liquor ban searches

One of the knotty little problems that crops up in the lower courts is whether a police search for alcohol in a person's possession in a liquor ban area can properly extend to a search for drugs, even if the initial search had been carried out illegally. I was reminded of this on reading R v Nolet [2010] SCC 24 (25 June 2010). This involved initial vehicle stoppage for transport regulation compliance, the discovery of a large amount of money, arrest for possession of proceeds of crime, a further search of the vehicle revealing a large quantity of cannabis, impounding of the vehicle and a later inventory search yielding evidence of transport licencing infringements.

What is of interest in the wider context is the treatment, by Binnie J delivering the judgment of the Supreme Court, of so-called mixed-purpose searches. One approach to this sort of problem is to argue that the regulatory search was really a sham and that the real purpose was to search for evidence of the more serious offending even though there were no grounds for such a search. At para 39 Binnie J rejects the predominant purpose inquiry and prefers a focus on whether the defendant's Charter rights have been breached.

Nolet also illustrates the proper approach to these problems which is to proceed by a step-by-step analysis of the facts.

As I began by mentioning liquor searches, I should say a bit more about them. Section 169 of the Local Government Act 2002 provides for police powers to search for liquor in the possession of a person in a liquor ban area. Important limitations on that search power are in s 170. The s 169 power does not contain a requirement that an officer must have reasonable grounds to believe that liquor will be found. Local bylaws, for example those enacted by Auckland City, do not restrict these searches to occasions where such reasonable grounds exist. But s 21 New Zealand Bill of Rights Act 1990 gives everyone the right to be secure against unreasonable search and seizure. On the Nolet approach, the question in any given case would be whether the particular search was a breach of s 21. The argument would be that lawful powers must be exercised reasonably.

If sufficient grounds for a liquor search existed, the search might be unlawful because of breach of s 170. For example, because of failure to give the person an opportunity to remove the liquor from the ban area. What would be the relevance of that illegality if the police had discovered drugs after completion of the search for liquor and after the illegality arose?

In deciding whether a search that yielded drugs was unreasonable, the grounds for the search would be assessed but by ignoring unlawfully obtained information. In the absence of any reason to believe that drugs would be found, the search that discovered them would be unreasonable. Whether evidence of the finding of the drugs would be admissible would then have to be determined by a balancing exercise (analogous to, but not the same as, that carried out in Nolet pursuant to Grant in relation to the evidence of licencing breach discovered during the final inventory search), pursuant to s 30 Evidence Act 2006. I would expect, in the light of case law, that if the drug offending was of such seriousness as to attract a starting point for sentencing of under four years' imprisonment, and if the improper search involved search of the defendant, a bag he carried, or the vehicle he was in, that the court would exclude the evidence.

But I may be wrong. Don't rely on my views.

Outsmarting the smart

With my 3 July 2008 comments on Gafgen v Germany still at the forefront of your consciousness, you will be surprised that I have let a few days slip by before referring to the Grand Chamber's decision in the same case: Gafgen v Germany [2010] ECHR 759 (1 June 2010). The Court held 11 to 6 that although there had been a breach of Mr Gafgen's article 3 right not to be subjected to inhumane treatment (para 131), there was no breach of his fair trial rights under article 6 (para 187-188). Mr Gafgen had not sought a monetary award for the breach of article 3, merely a retrial, but this was not awarded as he had received a fair trial (190-191).

The Grand Chamber reiterated the law on article 3 (para 87-93), and applied it to this case (107):

"In this connection, the Court accepts the motivation for the police officers' conduct and that they acted in an attempt to save a child's life. However, it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case-law (see paragraph 87 above), the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult. The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue."

And, a remedy for breach of article 3 cannot be confined merely to compensation (119):

"In cases of wilful ill-treatment the breach of Article 3 cannot be remedied only by an award of compensation to the victim. This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see, among many other authorities, Krastanov, cited above, § 60; Çamdereli, cited above, § 29; and Vladimir Romanov, cited above, § 78)."

This means that the fairness of the trial must be examined, because Mr Gafgen had exhausted his domestic remedies (146). It is a quirk of Strasbourg jurisdiction that the Court assesses fairness without reference to the admissibility of evidence, which is a matter for domestic courts (162-163), although this limitation is obscured by the importance of article 3 (165):

" ... However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction ... ."

For example, confessions obtained in breach of article 3 have led to trials being held to be unfair irrespective of the role of such confessions in prosecution cases (166), and violence in the nature of torture leading to the discovery of real evidence will also result in trial unfairness (167). Similarly, breach of the right to silence and the privilege against self-incrimination also lie at the heart of the right to a fair trial (168). The article 3 rights are absolute (176):

"While having regard to the above interests at stake in the context of Article 6, the Court cannot but take note of the fact that Article 3 of the Convention enshrines an absolute right. Being absolute, there can be no weighing of other interests against it, such as the seriousness of the offence under investigation or the public interest in effective criminal prosecution, for to do so would undermine its absolute nature (compare also, mutatis mutandis, Saadi v. Italy, cited above, §§ 138-39). In the Court's view, neither the protection of human life nor the securing of a criminal conviction may be obtained at the cost of compromising the protection of the absolute right not to be subjected to ill-treatment proscribed by Article 3, as this would sacrifice those values and discredit the administration of justice."

The Court then noted that the article 6 right is not absolute (178):

"However, contrary to Article 3, Article 6 does not enshrine an absolute right. The Court must therefore determine what measures are to be considered both necessary and sufficient in criminal proceedings concerning evidence secured as the result of a breach of Article 3 in order to secure effective protection of the rights guaranteed by Article 6. As established in its case-law (see paragraphs 165-167 above), the use of such evidence raises serious issues as to the fairness of the proceedings. Admittedly, in the context of Article 6, the admission of evidence obtained by conduct absolutely prohibited by Article 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition. The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole is rendered unfair. However, the Court considers that both a criminal trial's fairness and the effective protection of the absolute prohibition under Article 3 in that context are only at stake if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence."

I pause here to comment that treating the article 6 right as "not absolute" must be done with care. Article 6 does not contain one right only. The right to a "fair and public hearing" is not subject to limitations, but it is "derogable" in times of "war or other public emergency threatening the life of the nation" (article 15). That is the sense in which the right to a fair hearing is not an absolute right. The first sentence of para 178 did not need to refer to the non-absolute nature of the right to a fair hearing, as the second sentence makes it plain that effective protection of this right must be secured.

As noted in my earlier comment on this case, events at trial eclipsed the breach of article 3, and the admission at trial of the challenged evidence did not affect the fairness of the hearing.

Here, Mr Gafgen had made two confessions at trial, the second of which was crucial to his conviction (34-35,184). There is a little judicial sleight of hand on this (183):

"Moreover, the applicant, who was represented by defence counsel, stressed in his statements on the second day and at the end of the trial that he was confessing freely out of remorse and in order to take responsibility for his offence despite the events of 1 October 2002 (see paragraph 32 above). He did so notwithstanding the fact that he had previously failed in his attempt to have the impugned real evidence excluded. There is no reason, therefore, for the Court to assume that the applicant did not tell the truth and would not have confessed if the Regional Court had decided at the outset of the trial to exclude the impugned real evidence and that his confession should thus be regarded as a consequence of measures which extinguished the essence of his defence rights." [emphasis added]

The non sequitur in the italicised passage is obvious. A "free" and "remorseful" confession after a ruling that real evidence is admissible is not really "free" and "remorseful" – to be such it would need to have been given before the admissibility ruling.

Gafgen illustrates how an accused person's legal manoeuvring at trial can ultimately produce a result that he didn't want. The final appellate court makes the final legal manoeuvre.

I do not think that the issue of trial fairness should come down to the glib bluff-calling that occurred here. The Strasbourg Court needs to decide whether trial fairness means the same thing for all member states. It needs to define what trial fairness means, and to avoid irrelevant references to derogation. It needs to decide whether admissibility of improperly obtained evidence is a question that is relevant to the determination of trial fairness, and whether deference to local decisions on admissibility is necessarily appropriate. The Court needs to sort out the relationship between exclusion of evidence for reasons of public policy and exclusion of evidence to protect trial fairness. A ruling on trial fairness requires detailed consideration of the critical decisions made at trial in order to determine when they are a product of impropriety.

My suggestions: If all people are equally deserving of the protection of rights then the right to a fair trial must mean the same thing for everyone. Recognising that laws differ does not mean that trial fairness differs. A fair trial is one in which the law, whatever it may be, is applied correctly to facts that are determined impartially. Impartially means without bias and without an error that affects the proper assessment of what is admissible evidence and what is the true probative value of the admissible evidence. The admissibility of improperly obtained evidence is governed by judgment involving a balancing of policy values. If that balancing judgment is done incorrectly, there can be an impact on trial fairness through the creation of partiality in the determination of the facts. Deference to local decisions is not appropriate because a decision about trial fairness requires assessment of the correctness of admissibility decisions. An admissibility decision can affect the tactical decisions made by an accused in the course of conducting a defence, so if evidence has been wrongly admitted it is necessary to ask whether that could have affected the proper determination of the facts.

The trial fairness question in this case comes down to whether the trial court was correct to admit the real evidence. This is an issue of whether the real evidence is "fruit of the poisoned tree", and that, in the German court, was decided by a balancing of values: see the passage quoted in para 27 of the Chamber judgment Gafgen v Germany [2008] ECHR 565. In other jurisdictions this issue may be treated as a question of causation: whether there remains a causal link between the improper official conduct and the finding of the real evidence. Sometimes it is treated as a question of time and context. Notwithstanding the varied approaches to the admissibility of downstream evidence, the question here is whether the German approach is wrong. It would be difficult to show that it is. The Grand Chamber avoided dealing with this interesting problem; vile facts do not present a good opportunity for development of the law on trial fairness.

Expert opinions going too far

Experts should not express opinions about whether sexual activity was by consent without sufficient foundation: Tuhura v R [2010] NZCA 246 (10 June 2010).

The accused had been convicted of vaginal and anal sexual violation. His defence was consent. Of central importance was his claim that the complainant had invited him to return to her residence later that night. There was contested medical evidence, to the effect that injuries to the complainant were unlikely to be the result of consensual intercourse.

The Court of Appeal took the opportunity to review cases where expert opinion of this nature had been regarded as being without foundation, and concluded that this was such a case. The Court asked that its judgment be distributed to prosecutors, defence counsel and relevant doctors.

The kinds of injuries that have been held not to support an opinion that they were unlikely to be the result of consensual intercourse are (and here you may want a map):

• Three fresh lacerations in the area of the fossa navicularis
  
• Lacerations in the region of the anus, no injuries to the hymen or posterior forchette
  
• Tenderness and abrasions in the vaginal area, thickish brown discharge with pieces of traumatised tissue, some bruising
  
• Split in vaginal area of triangular shape in surface skin, 1 cm base and 2 cm on sides, quite red
  
• Three minor tears in vaginal area, longest 5 mm at mouth of vagina, tender areas at vaginal entrance and deep in vagina
  
• Superficial graze about 5 mm long on hymen
  

The problem is that there are no studies of injuries sustained during consensual sexual activity with which to compare those alleged to have been incurred without consent.

"56. ... In cases where the injuries suffered by the complainant are not such that a doctor can properly express a view as to whether the sexual contact prior to the injuries being incurred was consensual or not, the doctor should not be asked to express a view. If the question is asked, the response should indicate that he or she cannot properly express a view one way or the other. The issue of consent will be at the forefront of the jury's mind. There is a real risk that if an expert suggests that injuries are indicative of non-consensual sexual activity, jurors may decide the case on the false understanding that the fact that the complainant suffered injuries makes it more likely that the associated sexual contact was non-consensual."

The Court added (60) that in cases of more serious injury an opinion as to consent might be warranted.

Admission of the opinion evidence of non-consent here was a miscarriage of justice. This required the Court to consider the proviso, in particular to apply Matenga v R [2009] NZSC 18 (commented on here, 20 July 2009, and see also 1 January 2010).

There is a small error in the judgment in the present case, Tuhura:

"89. We are satisfied that, apart from the admission of the contested medical evidence, the trial was fair. ..."

This seems to say, the trial was not fair because of the admission of the contested medical evidence.

Contrast that with the point made in Matenga, footnote 20:

"In R v Condon [2007] 1 NZLR 300 (SC) at paras [77] and [79] this Court equated breach of the right to a fair trial with a substantial miscarriage of justice."

That means the proviso cannot apply where the trial is unfair. In Matenga the Supreme Court continued (31), in a passage included in a quotation from that case in Turuha at 67:

"Before applying the proviso the Court must also be satisfied that the trial was fair [footnote: The assessment of fairness is to be made in relation to the trial overall: Condon at para [78]] and thus that there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights."

Plainly, the Court in Tuhura meant, in para 89, to say "notwithstanding" instead of "apart from", so that the passage quoted should have read:

"89. We are satisfied that, notwithstanding the admission of the contested medical evidence, the trial was fair. ..."

I emphasise this point because to some readers this case might open the door for submissions that a conviction at an unfair trial can be upheld on appeal. Matenga does not address in detail the relationship between a substantial miscarriage of justice and a fair trial, other than to say that an unfair trial is a substantial miscarriage of justice. It seems that, once an appellate court decides that a conviction was inevitable, being properly based on admissible evidence, the trial could only be called unfair if there had been a reasonable apprehension of bias, or if there had been an inequality of arms disadvantaging the defence, or if fresh evidence raised a reasonable doubt as to the safety of the conviction in the mind of the appellate court. My view is that "trial fairness" deserves its own heading in judgments in this area, because it addresses these distinct concerns.

The Tuhura Court concluded that there was no support in the evidence for the accused's contention that the complainant had invited him to her residence, and that in the absence of such an invitation the defence of consent could not raise a reasonable doubt. The appeal was dismissed.

Update: The Supreme Court refused leave to appeal: Tuhura v R [2010] NZSC 128 (2 November 2010).

Weighing: fact or law?

Where a judge has to balance one consideration against another, is the determination of the weight to be given to each consideration a question of fact or of law?

Yesterday the United Kingdom Supreme Court held that weight is a question of fact: Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010), at para 12:

"The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision-maker – subject only to a challenge for irrationality which neither has nor could have been advanced here. All this is trite law and indeed the contrary was not argued before us."

The context here was whether the conditions of a control order made under the Prevention of Terrorism Act 2005[UK] breached article 5 of the European Convention on Human Rights, the right to liberty. The Court held that restrictions on liberty that might otherwise have been justified might be rendered unjustifiable when a breach of the right to respect for private and family life (article 8) is taken into account. Because article 8 is relevant it is capable of tipping the balance.

That sort of balancing has wider application than just control orders. Bail conditions must be reasonable. Evidence improperly obtained may or may not be admissible, depending on a balancing of public and private interests. Are these balancing exercises always questions of fact unless they are done irrationally?

The question is significant where there are limitations on rights of appeal to questions of law.

As I noted earlier (18 May 2010) in R v Gwaze [2010] NZSC 52 the New Zealand Supreme Court held that decisions on the admissibility of evidence are decisions on questions of law. Such decisions can involve balancing of competing rights, particularly under s 30 Evidence Act 2006. If these were questions of law, the weight given to relevant considerations would not be entirely for the decision-maker. What seemed "trite" to the UKSC in the context it was addressing in AP is certainly not trite in the Gwaze context.