Good to get that settled?

Ah yes, another report on the Bain case. I have added some comments to an earlier post (15 December 2012).

Extended common purpose - correcting the common law on secondary liability

Well, interweb, if I’m going to do a post this year I had better get on with it.

Extended secondary liability has received attention on this site before, on Dec 22, 2011, and Dec 18, 2006.

The Privy Council, in a judgment delivered jointly with the Supreme Court of the United Kingdom, has corrected a long-standing (30 years) error in the law of this form of liability: R v Jogee [2016] UKSC 8 (18 February 2016).

The change, reverting to what had been the correct position, is that a secondary party must always intend that the offence be committed. The error had happened when the Privy Council gave judgment in Chan Wing-Siu [1985] AC 168. The Board had held that under the extended form of secondary liability intention is not required, but instead only foresight that commission of the offence is a probable consequence of the prosecution of an unlawful common purpose.

This is explained extremely clearly by Francis FitzGibbon in the London Review of Books, Vol 38, No 5, 3 March 2016.

Embarrassingly, the blame for all this is attributed to the then Sir Robin Cooke (later, Lord Cooke), who delivered the Board’s judgment in Chan Wing-Siu. If one is to place the blame in that way, one must assume that the other members of that Board were asleep: Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook, and Lord Templeman. None of them tugged at Sir Robin’s sleeve and said “hang on a minute mate” (or whatever the equivalent English expression was).

From where did Sir Robin get his misunderstanding of the common law? As a New Zealand judge he would have been familiar with our s 66(2) of the Crimes Act 1961, which is the provision for this form of liability. An early interpretation of the (not materially different) predecessor of this - s 90(2) of the Crimes Act 1908 - was that the secondary party had to intend the commission of the foreseen offence: R v Malcolm [1951] NZLR 470, 485 line 33 (CA) where there is only a brief comment "Subsection 2 of s 90 requires a common purpose" [emphasis added]. However that was criticised in an influential textbook, Criminal Law and Practice in New Zealand (2^nd ed FB Adams, 1971) at para 664, where it was said that “the whole point of s 66(2) [is] that something is done which may have gone beyond the common primary purpose.”

So, contrary to Malcolm, s 66(2) has subsequently (at least) been understood to mean that the secondary participant need not intend the commission of the offence, but that only foresight of it as a probable consequence of pursuit of the common purpose is required.

Regardless of why the mistake may have been made and why it had gone unnoticed for decades, the common law is now that intention is required. Foresight of a risk is evidence of intention, not a substitute for it. Can a provision like s 66(2) be interpreted consistently with that? I think it can. A “common intention to prosecute any unlawful purpose, and to assist each other therein” refers to a range of intended offences. Otherwise, the subsection would have said “common intention to commit an offence”. The phrase “known to be a probable consequence of the prosecution of the common purpose” functions to keep liability within the bounds of what was intended.

[Update: The Supreme Court has declined to modify the interpretation of s 66(2) to bring it into line with Jogee: Uhrle v R [2016] NZSC 64 (13 June 2016).]

[Another update: The High Court of Australia has refused to revise the common law insofar as it applies in Australian jurisdictions, and will not bring it into line with Jogee: Miller v The Queen [2016] HCA 30 (24 August 2016).]

Decision models for the stay of criminal proceedings

Legal terminology at common law can change over time.

For example, exclusion of improperly obtained evidence is decided by what used to be called a discretion, but which is now called an application of judgement as a matter of law. The difference between exercises of judgement and exercises of discretions is not always easy to see. Bail decisions are currently called discretionary, but who knows whether they might come to be called exercises of judgement?

The only practical difference is in how they are approached on appeal. This difference has arisen because, during the latter part of the twentieth century, the common law developed powers of review, applicable to all decisions affecting people’s legal interests including decisions of judges in lower courts.

On review, the correctness of the method applied by the decision-maker is determined, and this involves looking to see whether certain kinds of errors occurred. These errors are: erroneous application of principle, wrongly taking into account irrelevant matters, not taking into account relevant matters, or being plainly wrong. If one or more of those errors occurred the review court will usually remit the issue back for determination in the correct way, and only occasionally will the review court be in a position to make the determination itself. The review court acknowledges the advantages that the decision-maker had in seeing and hearing witnesses, or in having special expertise in the relevant subject.

Review applies to discretionary decisions. What is usually called “general appeal” applies to exercises of judgement. On a general appeal the court will, if it finds that an error occurred, apply its own view of the appropriate outcome. There has to be a demonstrable error, and this is called the error principle. On general appeal the court can hear evidence if necessary, but usually the evidence taken in the court below is sufficient.

There will obviously be overlap between errors that qualify to come within the error principle and errors that qualify for purposes of review. Nevertheless, as the law currently is, the difference in the form of proceedings can lead to very different outcomes resulting from the same sort of errors. This makes the classification of a decision as either discretionary (review) or a matter of judgement (general appeal) rather important.

The point I am making from all this is that the common law can create distinctions which are difficult to apply and yet which have serious implications as to outcome.

The decision to exclude improperly obtained evidence (now a matter of judgement but it used to be a discretion) had developed at common law but is now, in New Zealand, governed by statute and therefore will be elaborated in case law. By “case law” I mean judicial interpretation of legislation, as opposed to common law which is entirely judge-made. There are other ways of using the term common law, but that is what I mean. The admissibility of improperly obtained evidence is determined by applying a relatively clear decision model. I mean that the model is clear, even if the result of its application in individual cases may not be easy to predict. This model is a balancing of factors favouring admission against factors favouring exclusion, the result being assessed in terms of the need for an effective and credible criminal justice system. This need could be imagined as a sort of scale to indicate the consequences of where the balance has come to rest.

That model, or method for making the decision, is conceptually clear, although only lawyers and judges and people who have made a study of the subject are likely to have sufficient knowledge of the case law to understand what the balancing factors are and how the scale distinguishes between admissible and inadmissible evidence by using precedent to establish markers for future reference.

But, significantly for what I will say below, the factors favouring admission of improperly obtained evidence are dominated by the seriousness of the alleged offending in the particular case. Therefore it is important to have a clear way of deciding what is a serious offence. At common law the criterion was that the starting point for sentencing would be in the region of four years’ imprisonment. Subsequent case law has followed that, but in 2011 some doubt was cast on that in the Supreme Court, arising from a different view expressed by at least one judge with probably some support from one other, although the decision of the Court does not seem to have been intended to make a change that would require overruling a large number of decided cases. That different view was that seriousness should be measured by the maximum penalty for an offence.

Over the last few years in New Zealand the courts have been particularly concerned with how to decide whether to stay criminal proceedings. One difficulty that seems to have been avoided is deciding whether a decision to stay is discretionary or a matter of judgement. It seems to be the latter, although before the difference in terminology emerged the cases may well have called it discretionary. But what is the model for making the decision?

There is no statutory guidance on this. It is purely a common law matter. In Wilson v R [2015] NZSC 189 (14 December 2015) the model devised in England was used. Unfortunately this law uses the term “discretion” in an historical sense from before the review powers developed to the extent that they have, so that discretion here means an exercise of judgement:

“[51] ... a judge considering a stay application was required to weigh the countervailing considerations of policy and justice and then to decide in the exercise of his or her discretion whether there has been an abuse of process ‘which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.’” [footnotes omitted, here and in the extracts quoted below]

Blanch though we may at the “his or her”, it looks as though this reference to public conscience is to a scale, of the sort I mentioned above in relation to improperly obtained evidence. Countervailing considerations are weighed against this scale.

Important among the balancing factors:

“[54] ... the gravity of the alleged offence was a factor of ‘considerable weight’ for a court undertaking the balancing process to determine whether to stay proceedings on abuse of process grounds.”

And, of great interest in clearing up any confusion over how to assess the seriousness of the alleged offending, it is the starting point for sentencing, not the maximum penalty, that is relevant. This follows from, as it turns out, the majority’s resort to what was really the model applicable to the admissibility of improperly obtained evidence, and their description of the offending here as “moderately serious” [92(a)] although it included supply of LSD (maximum life imprisonment).

Unfortunately the model for deciding stays was significantly muddled by reliance on the following common law dictum:

“[54] ... ‘The central question for the court in all these cases is as to where the balance lies between the competing public interests in play: the public interests in identifying criminal responsibility and convicting and punishing the guilty on the one hand and the public interest in the rule of law and the integrity of the criminal justice system on the other. Which of these interests is to prevail?’”

The majority judgment in Wilson concluded on this:

“[60] ... when considering whether or not to grant a stay in a second category case [that is, one where the fairness of the trial is not in issue], the court will have to weigh the public interest in maintaining the integrity of the justice system against the public interest in having those accused of offending stand trial. In weighing those competing public interests, the court will have to consider the particular circumstances of the case. While not exhaustive, factors such as those listed in s 30(3) of the Evidence Act will be relevant, including whether there are any alternative remedies which will be sufficient to dissociate the justice system from the impugned conduct. In some instances, the misconduct by the state agency will be so grave that it will be largely determinative of the outcome, with the result that the balancing process will be attenuated. The court’s assessment must be conducted against the background that a stay in a second category case is an extreme remedy which will only be given in the clearest of cases.”

This has changed what should have been the scale into a balancing factor. Plainly the integrity of the criminal justice system should be an absolute requirement, not something that can be traded away in the interests of prosecuting serious crime.

Once that is accepted it follows that the model that should be used here is not the sort of balancing where two competing interests are measured against a scale, but instead it is a movement along a single scale of magnitude, going one way or the other and reaching a resting point on that scale. It is like a thermometer, not a balance. It isn’t really weighing anything, just measuring the intensity of the wrongful conduct of officials and seeing if that reaches a point where the integrity of the criminal justice system is compromised.

I think the Chief Justice was right (dissenting on whether a stay should have been ordered but agreeing in the result of the appeal), to emphasise, uncontroversially,

“[121] ... the critical question is not the strength of the prosecution evidence or the weakness of the defence, but the effect of the defect on the legitimacy of the trial.

...

“[123] ... the critical issue ... was whether the trial could be legitimate given the serious irregularity.”

However she did not distance herself to any marked extent from describing the decision model as one of balancing, and instead retreated from clarity by adopting a rather flaccid dictum:

“[133] ... general guidance on how the jurisdiction is to be exercised is not useful when ‘an infinite variety of cases could arise’.”

Decision models are designed to deal with an infinite variety of cases. Overall the issue of whether a stay should have been ordered in this case, which seems to conclude the Antonievic saga, came down to a vote count, without much clarity being given for future guidance. The majority’s application of the law to the appeal is really a retreat to the issue whether exclusion of the evidence was appropriate (using the conventional balancing exercise applicable to that decision) and then a recognition that the impropriety here did not go beyond what could appropriately be remedied by exclusion of some of the evidence.

So, to return to my theme of how the common law terminology and methods can change over time, a decision to stay criminal proceedings is no longer appropriately described as discretionary, but is a matter of judgement. On appeal the court will come to its own view of what should have been done. The decision model is currently that of weighing, but, I suggest, it should ultimately develop into a measure of the intensity of wrongdoing by officials to determine whether it affects the integrity of the criminal justice system. It is a different model from that applicable to improperly obtained evidence, and it should only apply if exclusion of tainted evidence is inadequate to protect the integrity of the criminal justice system. Where the wrongdoing colours the obtaining of evidence, the first decision will be the balancing required to determine the admissibility of that evidence, and then, if the wrongdoing was particularly bad it should be assessed for its impact on the integrity of the judicial proceedings. As has long been recognised, the position is different if the wrongdoing affects the fairness of a trial adversely to a defendant, for then a stay must be ordered.

Hardcopy edition of Misuse of Drugs

My textbook Misuse of Drugs will be published by Thomson Reuters NZ Ltd on 11 December in a new hardcopy edition. Orders may be made here.

Criminal Procedure in New Zealand, 2nd ed 2015

The second edition (hardcopy) of the criminal procedure text by Professor Finn and me will be available from 23 October, and may be ordered from Thomson Reuters NZ Ltd. Electronic formats, updated quarterly, are also available by subscription.

Life, and the meaning of Proust

“In Search of Lost Time” – what does that mean? It is the search for happiness, for the connection between past happiness and the state of being in the present which allows us to exist outside time and to enjoy the essence of things. It is the search for that which is common to the past and the present and which is more essential than both because it energises the desire to live.

“let a sound, a scent already heard and breathed in the past be heard and breathed anew, simultaneously in the present and in the past, real without being actual, ideal without being abstract, then instantly the permanent and characteristic essence hidden in things is freed and our true being which has for long seemed dead but was not so in other ways awakes and revives, thanks to this celestial nourishment.”

Although the book has strong themes of unequal love, of jealousy, hatred and disgust, of death and grief, there is also an irrepressible happiness. The point is that, although time will eventually drag us all down, it is only the extent to which our spirit has soared with the joy of life that really matters.

Proust posting 3: On human nature

Contemplation of human nature calls to mind the relationship between what we think and what we do. Proust found human nature endlessly (yes) interesting. Here, among his observations, are my favourites:

A. Our place in society

Everyone has their place:

“ “Oriane,” (at once Mme. des Laumes looked with amused astonishment towards an invisible third, whom she seemed to call to witness that she had never authorised Mme. de Gallardon to use her Christian name).”

And we want to be superior:

“she never gets a chance of being a snob; she doesn’t know anyone.”

We mark our superiority politely:

“She treated each of them with that charming courtesy with which well-bred people treat their inferiors ...”

“... “But you are our equal, if not our superior,” the Guermantes seemed, in all their actions, to be saying; and they said it in the most courteous fashion imaginable, to be loved, admired, but not to be believed; that one should discern the fictitious character of this affability was what they called being well-bred; to suppose it to be genuine, a sign of ill-breeding. ...”

“... they are naturally polite to anybody, as beautiful women are glad to bestow a smile which they know to be so joyfully received. ...”

“... he was sufficiently persuaded of his own importance to be able to mix with the very humblest people.”

B. Our relationships

We get over people:

“Nothing can be more affectionate than this sort of correspondence between friends who do not wish to see one another any more.”

We disconnect mutually:

“... the fiction of a mutual incognito, on hearing her friend’s name from the manager she merely looked the other way, and pretended not to see Mme. de Villeparisis, who, realising that my grandmother did not want to be recognised, looked also into the void.”

We try to impress:

“ “In fact, it was drolatic,” put in M. de Guermantes, whose odd vocabulary enabled people in society to declare that he was no fool and literary people, at the same time, to regard him as a complete imbecile.”

Aggressively we try to deflect criticism:

“... people against whom certain things may be hinted like to shew that they are not afraid to mention them.”

Gaydar alert!

“There is a special kind of glance, apparently of recognition, which a young man never receives from certain women — nor from certain men — after the day on which they have made his acquaintance and have learned that he is the friend of people with whom they too are intimate.”

C. Our own natures

I’m nasty, but funny with it:

“... it’s often difficult not to be a little spiteful when one is so full of wit ...”

“... “Mme. Verdurin, why, I used to know her terribly well!” with an affectation of humility, like a great lady who tells you that she has taken the tram.”

Stress can reveal us as essentially silly:

“... an exclamation the silliness of which kept him from sleeping for at least a week afterwards. His remark was of no great interest, but I remembered it as a proof that sometimes in this life, under the stress of an exceptional emotion, people do say what is in their minds.”

Meaning can get lost when one has to be polite:

“... she answered as she did, in order not to seem to be unaware of what I meant, as in a conversation one assumes an understanding air when somebody talks of Fourrier or of Tobolsk without even knowing what these names mean. ...”

“... the sterile pleasure of a social contact which excludes all penetrating thought”

Our errors compound:

“... the ill-balanced mentality of early manhood (a period in which, even in the middle class, one appears ungrateful and behaves like a cad because, having forgotten for months to write to a benefactor after he has lost his wife, one then ceases to nod to him in the street so as to simplify matters),...”

We can have a self-perpetuating insecurity:

“But he was so anxious not to let it be seen that he was not sought after, that he dared not offer himself. ...”

“... “You don’t happen to know what you will be doing in the next few days, because I shall probably be somewhere in the neighbourhood of Balbec? Not that it makes the slightest difference, I just thought I would ask you.” This air deceived nobody, and the inverse signs whereby we express our sentiments by their opposites are so clearly legible that we ask ourselves how there can still be people who say, for instance: “I have so many invitations that I don’t know where to lay my head” to conceal the fact that they have been invited nowhere.”

We can try to wound with silence:

“M. de Charlus made no reply and looked as if he had not heard, which was one of his favourite forms of insolence.”

We like to be noticed:

“ “You are the talk of the Conservatoire,” she added, feeling that this was the argument that carried most weight; ...”

Our attacks are justified:

“People are not always very tolerant of the tears which they themselves have provoked.”

We must make an effort to be social:

“... said the Duchess, making an effort in order to speak of a matter which did not interest her.”

The children must get established:

“... the great receptions given by Mme. de Marsantes and Mme. de Forcheville, given year after year with an eye chiefly to the establishment, upon a brilliant footing, of their children, ...”

There are times when we must appear decent:

“... he assumed the modest air of one who is not asking for payment.”

Proust on how to write a great big book

Continuing from last time ... Twelve tips from the master:

1. All this writing and just one book?

“I explained to Albertine that the great men of letters have never created more than a single work ...”

2. The grind gets it done:

“it is not the desire to become famous but the habit of being laborious that enables us to produce a finished work ...”

3. The effort can even be tiring:

“Perhaps some of the greatest masterpieces were written yawning.”

4. Don’t admit to being unoriginal:

“In this book ... there is not a single event which is not fictitious, in which there is not a single personage “a clef”, where I have invented everything to suit the requirements of my presentation ...”

5. Just because I use the first person, doesn’t mean it’s me!

“As soon as she was able to speak she said: “My ——-” or “My dearest ——” followed by my Christian name, which, if we give the narrator the same name as the author of this book, would be ‘My Marcel,’ or ‘My dearest Marcel.’”

6. It’s really about YOU:

“every reader, as he reads, is the reader of himself.”

7. Obsessive writer, obsessive reader:

“the writer, in creating each character, would have to present it from conflicting standpoints so that his book should have solidity, he would have to prepare it with meticulous care, perpetually regrouping his forces as for an offensive, to bear it as a load, to accept it as the object of his life, to build it like a church, to follow it like a régime, to overcome it like an obstacle, to win it like a friendship, to nourish it like a child, to create it like a world, mindful of those mysteries which probably only have their explanation in other worlds, the presentiment of which moves us most in life and in art.”

8. Don’t be preachy-preachy – or at least don’t admit to it:

“that vulgar temptation of an author to write intellectual works. A great indelicacy. A work in which there are theories is like an object upon which the price is marked.”

9. They won’t understand!

“I was soon able to show an outline of my project. No one understood it.”

10. Be your own favourite author:

“I read the article [that I had written] forcing myself to imagine that it was written by some one else. Then all my images, all my reflexions, all my epithets taken by themselves and without the memory of the check which they had given to my intentions, charmed me by their brilliance, their amplitude, their depth.”

11. Just reveal the great universal laws of human nature:

“It is the feeling for the general in the potential writer, which selects material suitable to a work of art because of its generality. He only pays attention to others, however dull and tiresome, because in repeating what their kind say like parrots, they are for that very reason prophetic birds, spokesmen of a psychological law. He recalls only what is general.”

12. And remember, for the publisher it’s all about the money:

“the impenetrable solidity of certain commercial houses, booksellers’ for example or printing presses, where the wretched author will never succeed, notwithstanding the diversity of the persons employed in them, in discovering whether he is being swindled or not.”

Marcel the joker

In search of lost laughs

I have just finished reading Proust’s “In search of lost time”, in the translation by CK Scott Moncrieff (vol 1-6) and Sydney Schiff (vol 7), Centaur Editions, available on Kindle.

Literary types argue over the merits of this translation, and it has been contended that it is better than the original French – a mischievous wit suggested that, if so, it should be translated back into French.

Proust could have fun:

... he began once more to cough and expectorate over me. “Don’t tire yourself by trying to speak,” I said to him with an air of kindly interest, which was feigned.

... he said of one of M. Verdurin’s footmen: “Isn’t he the Baron’s mistress?”

“... You must know far more than I do, M. de Charlus, about getting hold of sailors.”

... his stock of Latin quotations was extremely limited, albeit sufficient to astound his pupils.

... he had that detailed knowledge of Paris only to be found in people who seldom go there.

She looked like an exhausted swimmer far from shore who painfully manages to keep her head above the waves of time which were submerging her.

... the Duchesse de Guermantes’ cheeks which had remained remarkably unchanged though they now seemed compounded of nougat ...

His formerly brick-red skin had become gravely pale; silver hair, slight stoutness, Doge-like dignity and a chronic fatigue which gave him a constant longing for sleep, combined to produce a new and impressive majesty.

Somebody mentioned a name and I was stupefied to know it applied at one and the same time to my former blonde dance-partner and to the stout elderly lady who moved ponderously past me.

... the Princesse de Guermantes’ locks, when they were grey, had the brilliance of silvery silk round her protuberant brow but now having determined to become white seemed to be made of wool and stuffing and resembled soiled snow.

He declared that I had not changed by which I grasped that he did not think he had.

... for three years she had been taking cocaine and other drugs. Her eyes deeply and darkly rimmed were haggard, her mouth had a strange twitch.

“You took me for my mother,” Gilberte had said and it was true. For that matter it was a compliment to the daughter.

For this American woman, dinner-parties and social functions were a sort of Berlitz school. She repeated names she heard without any knowledge of their significance.

So people said: “You’ve forgotten. So and so is dead,” as they might have said: “He’s decorated, he’s a member of the Academy,” or — which came to the same thing as it prevented his coming to parties — “he has gone to spend the winter in the south ” ...

Hearing that Mme d’Arpajon was really dead, the old maid cast an alarmed glance at her mother fearing that the news of the death of one of her contemporaries might be a shock to her; she imagined in anticipation people alluding to her own mother’s death by explaining that “she died as the result of a shock through the death of Mme d’Arpajon.” But on the contrary, her mother’s expression was that of having won a competition against formidable rivals whenever anyone of her own age passed away.

Messing with LCN DNA

The delights of Bayesian probability reasoning are sufficient to draw from me another case comment!

Our Court of Appeal, in Manoharan v R [2015] NZCA 237 (11 June 2015), has said that a likelihood ratio of 20 (meaning 20 to 1, or in context, 20 times more likely under the prosecutor's hypothesis than under the defendant's) is “not strong” [52].

This was an LCN DNA analysis and obviously compared to the usual DNA results of likelihood ratios in the many millions, 20 is not high. But in the context of a case it can be, as can be seen from the results of applying Bayes’ Theorem (this was a single-issue case involving independent items of evidence).

I should emphasise that the single-issue nature of this case ("who did it?", an actus reus issue) simplifies the use of Bayes' theorem. Where several elements of the offence charged are in issue, the theorem must be applied to each separately, and only evidence relevant to that issue is used in each application. This prevents, for example, a huge scientific LR on the issue of identity from swamping the issue of intention. For each issue the "probability of guilt" means the probability that that issue is proved to the standard required for it to be established.

The likelihood ratio used by the scientists in declaring a match is not necessarily the same as the likelihood ratio for the activity evidence used by the fact-finder in the trial. This is because the defence may have an innocent explanation for the match which brings the denominator of the likelihood ratio (the probability of getting the match on the assumption that the defendant is innocent) close to the value of the numerator. Then, the probative value of the test result for the prosecutor would be very reduced or even extinguished.

We can compare what the probability of guilt would have been if the scientific LR had been in the millions and the trial LR numerator approximately 1, with what the probability of guilt would be under the revised scientific LR and corresponding new trial LR, for priors-in-combination (by which I mean, the ratio of probability of guilt to probability of innocence, based on all the other evidence in the case and the starting assumption about the probability of guilt and the probability of innocence, for this single-issue case) of various levels. (For multi-issue cases the priors will be assessed separately for each issue.)

A perspective on the size of a LR of 20 is obtained from considering a case where the evidence is not given, compared to one where it is.

• If, without the evidence, the probability of guilt is 0.90, then with the evidence that probability increases to 0.99.

• If, without the evidence, the probability of guilt is 0.60, then with the evidence that probability increases to 0.96.

• And, if, without the evidence, the probability of guilt is 0.30, then with the evidence that probability increases to 0.89.

These 3 examples show that evidence with LR = 20 can have strong probative value.

Perhaps the Court under-emphasised the strength of the DNA evidence in this case. It approved defence counsel’s submission that the jury should have been told that in New Zealand it was likely that there are 200,000 people who would have the same profile. The fallacy is to include people who had no opportunity to commit the crime.

Update: on 28 October 2015 the Supreme Court refused leave to appeal: Manoharan v R [2015] NZSC 156. The Court could see no basis to indicate that the Court of Appeal had been wrong when it had held that there had been no miscarriage of justice.

Another update: Bernard Robertson has commented on this case in"Likelihood ratios in evidence" [2016] New Zealand Law Journal 22. He points out that the Court at [39] correctly describes the witness's evidence as stating a likelihood ratio, but earlier in the judgment, at [17], it had transposed the conditional when referring to the same evidence. Mr Robertson also points out that the "20 times more likely" assertion should have been clarified because juries will not know what to do with a likelihood ratio, and that in this case source level propositions (where the sample at the scene came from) were mixed with activity level propositions (how it got there).

Search seminar

Notes for the talk on the law of search that I gave at the Auckland District Court on 1 July 2015 are available here.

Proportionality and the Rule of Law

As you know – although I’m sure you wouldn’t admit it in front of your drinking buddies – there are few more enjoyable ways of spending a wet Queen’s Birthday holiday weekend than by struggling to understand a book written in technical language that you feel you should understand.

So it is with Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP, 2014), a collection of essays by 18 contributors, edited by Grant Huscroft, Bradley W Miller, and Grégoire Webber.

I can only speak of the Introduction, as the book is rather expensive, and even the ebook seems over-priced. At least Amazon gives us a free sample, which includes the very excellent (as opposed to sort-of excellent?) Introduction by the editors.

So my little game, if you think of it like that, is to translate into ordinary lawyers’ English the technical language of the Introduction. But beware of the risk that I do this with a clarity born of misunderstanding.

“Proportionality” has a range of meanings and can refer to a method or to a goal of decision-making. I wouldn’t want to confuse it with other kinds of decision-making, such as logic, formalism (the application of rules to facts), morality (what would be the morally right decision), pragmatism (what result would work), although there can be some overlap.

Balancing of competing values is a proportionality method of decision-making. So is the rather different ends/means balancing, but this can be seen as a method or as a goal. Using reasonableness to limit what is acceptable is also a proportionality method. Sometimes proportionality endangers rights, in balancing them against other values, and sometimes it compromises moral values, where what is right yields to a greater right or some greater interest.

What happens to rights in proportionality reasoning can vary. Rights are not necessarily eroded in the balancing process, which will usually recognise their enhanced weight by virtue of their status as rights, but if an issue of limitation is being considered then there is a risk of erosion if proportionality requires that.

Proportionality can require recognition of the autonomy and dignity of the person, and this may guide the interpretation of legislation. Legislators, however, may have a greater awareness of rights and social interests than do courts, so executive decisions should be judged by their method rather than their outcome. This concern would limit the role of proportionality reasoning. Indeed, it is arguable (although I am not convinced by this) that proportionality is too abstract a method to be of use to judges.

You could say that morality is important and that proportionality reasoning is not a complete method for judicial decision-making. There are risks attending proportionality reasoning: irrelevancies may be taken into account, things that are doubtful may be treated as certainties, a judge may yield too much to extraneous determinations, aspects of the public good may be ignored, and a judge may have resort to a personal political philosophy.

In their conclusion to the Introduction the editors ask some pertinent questions, which the essays apparently leave the reader to consider. I put these in my own words, sacrificing the subtleties. Does proportionality erode rights? What about absolute rights? Should judges take more account of the reasons that motivate enactments? Should legislators, rather than the courts, use proportionality reasoning? Where proportionality reasoning includes morality, does it prefer some moral theories over others? How should the dangers of proportionality reasoning by courts be overcome?

Well, it’s a shame that the book is so expensive. Too expensive to read. Hopefully my clumsy summary of its Introduction will make some of the essayists’ interesting ideas more accessible.

I doubt, therefore I am, but what are you?

In Seeing Things as They Are (OUP, 2015) John R Searle gives idealism a long-deserved slap. “There is something tragic about the massive waste of time involved in the whole tradition of idealism.” (P 93, footnote 10, if my Kindle app pagination is accurate.)

Idealism is that philosophy which claims that the only things we have perceptual access to are our own subjective experiences: all we can ever perceive are our own subjective impressions and ideas (Descartes, Berkeley, Hume), we can never have knowledge of things in themselves (Kant), we can only perceive sense data (Ayer). Searle’s position is that idealism leaves us with essentially an unbelievable conception of our relation to the world (p 231).

I am not able to review the book, [Update: here is a review by Josh Armstrong in the LA Review of Books.] but you may wish to view this YouTube clip of a seminar conducted by Searle which substantially overlaps the subject-matter of this book and gives a sense of the technical language generated by philosophical contemplation of perception.

Searle makes an interesting observation about El Greco and whether the painter had defective vision (p 141):

“The hypothesis ... that he painted distorted figures because a normal stimulus looks distorted to him makes no sense, because if he is reproducing on the canvas what produces distortions in him, then he will simply reproduce what looks normal to the rest of us.”

This has implications not mentioned by Searle but which will occur to lawyers. Would El Greco have described in words an obviously distorted image? Are errors in one mode of perception only apparent to other people when translated into a different mode of communication? If a witness describes what was seen, will that description necessarily correspond to the witness’s visual perception? How should a verbal description of what was seen be checked?

Judicial accounts of how facts are determined give no assurance of their correspondence with reality. As EW Thomas observes in The Judicial Process (CUP, 2005) at p 321, “The facts are the fount of individual justice” but there is scope for improvement in the ways they are determined. For example, there is too much weight placed on the demeanour of witnesses (324), and truth, as far as the system will permit “can be gleaned from a close reading of the contemporaneous documentation, if any, or an analysis of the probabilities intrinsic to the circumstances and about which there may be little or no dispute” (325).

As a senior appellate judge, Thomas cautions that

“what judges must not do is fill an unresolvable gap with a judicial ‘hunch’. To do so is to succumb in part to what I have perhaps unkindly labelled the ‘God Syndrome’. Anecdotal evidence suggests that the God Syndrome settles on some judges shortly after their appointment to the Bench ... [and] many appellate judgments would be edified if judges at that level did not show an unhealthy preparedness to adopt a version of the facts which cannot be found in the [trial] judge’s findings of fact or in the transcript of the evidence itself. ... The God Syndrome does not strike at first instance only.” (326)

The resort to assessment of probabilities to assist in determining facts is also referred to by Richard A Posner in How Judges Think (Harvard UP, 2008). He uses (65) Bayesian decision theory to illustrate how, before a witness even testifies, a judge will have formed an estimate that the testimony will be truthful, based on experience with witnesses in similar cases (including when the judge was a lawyer), on a general sense of the honesty of the class of persons to which the witness belongs, or even the way in which the witness enters court and approaches the witness box. It would, says Posner (67), be irrational for judges to purge themselves of this way of thinking.

And the sneakiness of some appellate judges does not escape Posner’s comment (144):

“   Appellate judges in our system often can conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents.”

(I mention in passing – just to show that some judges do read each other’s books - that at 261 footnote 63 Posner cites Thomas’s book.)

Posner had also discussed the difficulties of ascertaining, from evidence given in the courtroom, the reality of what happened, in The Problems of Jurisprudence (Harvard UP, 1990), particularly at 203-219. He adds (217):

“The celebration by lawyers and judges of the “fairness” of a system in which it is thought better to acquit ten guilty defendants than to convict one innocent defendant is an attempt to put a good face on what is actually a confession of systemic ineptitude in deciding questions of guilt and innocence.”

Ah yes, there’s nothing like a little philosophy to make you have doubts about everything (except your existence).

Book review: Final Judgment – The Last Law Lords and the Supreme Court by Alan Paterson (2013)

Every barrister should read this book. Even if you don’t particularly care about the goings-on in the Supreme Court of the United Kingdom, there are things here about advocacy and the politics of multi-judge courts that make fascinating reading.

The overall quality of Professor Paterson's writing is so good that we should forgive his solitary and incorrect mention of New Zealand. It seems his view of the world is not this one:

There are many reviews of this work online, some of which summarise it in detail. So I will just mention some points and leave you to get your own copy.

Oral advocacy is quite a different exercise from written advocacy. Quoting Michael Beloff QC in Chapter 2:

“One wants to reserve something quite deliberately for oral advocacy— as it were to take a forensic punch, to start off with something that captures their imagination immediately.”

Paterson notes that an appeal before the final court has involved a conversational style of advocacy:

“[Metaphors] ranged from ‘an academic seminar’ or Oxbridge tutorial, to ‘an informed dialogue’, and ‘a dialectic between Bench and Bar’, which resembles nothing so much as a ‘conversation between gentlemen on a subject of mutual interest’. [footnotes omitted]

And one needs to be sensitive to when the court has heard enough:

“Lord Bingham had a way of saying ‘Yes’ which would quicken and multiply if counsel failed to take the hint.”

Questions from the judges can’t be ignored:

“Whilst the judges in the final court can use the dialogue to constrain counsel’s arguments as we have seen, they also use the dialogue to clarify what counsel are arguing, to test counsel’s arguments, and to put their own theories of the case to counsel.”

And:

“ … in general the least helpful thing that counsel can do is to decline to engage in the dialogue. This as Lord Bingham observed, is almost a golden rule of appellate advocacy and reinforces the point that it is about dialogue rather than sequential monologues.”

An anonymised leading counsel is reported as saying:

“A fluent and compelling response to an adverse judicial intervention is the holy grail of oral advocacy.”

And further,

“However clever the Lords are they’re not computers, they’re human beings and you’ve got to make them want to decide in your favour, and that’s what advocacy means, it’s working out a way of making them feel comfortable coming with you.”

Courageous advocacy means having the courage to rely on your strongest point, and not needing to refer to lesser ones. Sir Patrick Hastings KC is quoted:

“The ability to pick out the one real point of a case is not by itself enough; it is the courage required to seize upon that point to the exclusion of all others that is of real importance.”

That’s enough to give you a sense of this topic, which Paterson treats in considerably more detail.

The book concentrates on the various lines of communication that influence judges: with counsel, with other judges on the same bench, with other courts locally and internationally, with parliament and the executive, with law reform bodies. The analysis of statistical information on outcomes is as detailed as it could possibly be, and is a model for the sort of analysis that could be applied to any multi-judge court.

The discussion of how judges decide cases is fascinating too. Meetings before and after oral argument, decisions on who should write the lead judgment, discussions during the writing process (including with the judicial assistants), exchanges of drafts, types of concurrence and the value of dissents are all examined with the benefit of the author’s extensive interviews with the Law Lords and, later, the Justices, as well as with senior counsel. We learn about different types of judicial personality (including observations on Lord Diplock that force one to conclude he was an arse) and the tendency of judges to reflect ordinary group decision behaviour by wanting to stick with conclusions they have expressed at an early stage. It is common for people not to know their own thoughts until they express them in words, and meetings at an early stage may lead to premature conclusions and fixed views. The early drafts of a judgment may force a judge to recognise an error in thinking.

Lord Hoffman is quoted on this:

“ … I must have written about eight or nine drafts of a supporting judgment. I was not satisfied that I’d got it right in any of these drafts and I’d tried this way and that way and eventually it seemed to me the reason why I wasn’t getting it right was because I was wrong. So I changed sides at that point and it went 3: 2 the other way.”

An illustration of interactions and changes of position is given in discussing R v Waya [2012] UKSC 51 (which I have commented on here on 2 January 2013). Paterson describes what went on:

“Since they could not agree on the outcome of the case, it was re-heard before an expanded panel of nine in March 2012. After the first conference (really the second conference [ie the meeting that occurs immediately after oral argument]) the Justices were once again unable to produce a majority position. Lord Phillips suggested that they put their thoughts on paper and eventually a majority position emerged. Lord Reed, who had come in for the second hearing thought that the confiscation order should be set at zero. He laboured long and assiduously to produce his dissent and circulated it before the majority. When the latter came, their position had changed to take account of his dissent. Lord Reed then agreed on a joint judgment with Lord Phillips and withdrew the bulk of his dissent. In all it took 288 days from the second hearing to the final judgment. In part this was a product of the team-working of today’s Supreme Court which eventually produced a conjoined majority and a conjoined minority judgment. However, if the same case had arisen in Bingham’s time it might well have been a case where he approved of a single judgment in order to provide guidance to the lower courts.”

But you mustn’t let me breach copyright by going on like this. Buy the book and read it; if you’re a barrister I doubt you will be able to put it down.

Book Review: The Singular Universe and the Reality of Time, by Unger and Smolin

The Singular Universe and the Reality of Time by Roberto Mangabeira Unger and Lee Smolin, CUP, 2015 brings to our attention a likely explanation for the lack of progress in cosmology since the 1970s. The book will be of interest to some lawyers (Unger is, among other things, a legal theorist) for the light it may shed by analogy on some aspects of legal theory.

This is really two books under one cover, both advancing the same general argument, with Smolin addressing some scientific topics at a level of detail, but not at undue length, that is beyond what general readers would understand. The first part of the book is by Roberto Mangabeira Unger, and the second, from page 349 (if my Kindle app is accurate) by Smolin.

Both authors wrote the introductory remarks, from p x to p xx.

“Cosmology is the study of the universe as a whole, beyond which, for science, there lies nothing.” (p xx).

There are “three big questions about cosmology”, stated by Smolin (401) as:

“What happened at very early times, closer to the initial singularity? What will happen to our universe in the far future? What is there, very far away from us, outside our cosmological horizon?”

Cosmology can only answer these by way of being a science. A science is (501)

“... only about what can be conclusively established on the basis of rational argument from public evidence.” [footnoting Smolin, The Trouble With Physics, 2006, a book that I can recommend]

Incidentally, and I digress for a moment: in The Trouble With Physics Smolin gives us (293) Feyerabend’s amusing observation that he could win any argument in philosophy simply by using skills he had acquired as an actor. “This made him wonder whether academic success had any rational basis.” Drama-queen teachers take note!

No progress has been made on important cosmological questions, and Unger and Smolin argue that this is because scientists have used incorrect assumptions. Questions include: why, when important equations have many solutions, is only one accepted as correct? Why are there three spatial dimensions? Why do the so-called universal constants have the values they do? Why is there life? How did the universe come to what appears to be thermal equilibrium at a single temperature? Why do we assume that the laws of physics apply throughout the universe (including the part of the universe we cannot yet detect), and in an unchanging way?

Most of us will remember wondering why Einstein started his special theory of relativity by assuming that the speed of light in a vacuum is constant and cannot be exceeded. True, experiments suggested that that was so, but should those results be applied everywhere and always? His other basic assumption was that the laws of physics apply uniformly for all frames of reference. Do they, and why?  And his removing of time from its role as a universal and uniform measurement may well produce results that appear to be correct in the part of the universe we can currently detect (even if only by measurement to a level of precision only expensively achieved), but everywhere and always?

Unger and Smolin reinstate time as the absolute backdrop to physical events (52), not an accessory to space (53), they assert it is real (354) and it enables recognition of what they assert will be found to be the evolution of physical laws (357). It also gives meaning to causation: if time is not real, causality (the influence that a state of affairs exercises over what follows it) cannot be real (35). However, the uneasy reader might say, it is not explained how this absolute time is to be measured, and how the measuring standard might change as the physical laws evolve. Still, the point seems to be that time does not vary within a frame of reference, or between frames of reference, or historically compared to any measurement that is known. Where this leaves Einstein is not made clear (at least to me, other people are probably not troubled at all), unless the modification is confined to the unknown part of the universe.

Three central ideas – or perhaps we could say assertions or axioms - are developed in the book (I summarise from pp 5-16): the solitary existence of the universe (there are not, and have never been and will never be, mulitple universes); time is inclusively real (nothing is outside time, everything changes sooner or later); and mathematics is not a substitute for reality, it should be seen as representing a world eviscerated of time and phenomenal particularity (mathematical relations are timeless and of a general character, and indeed are useful to a point, but they do not model a universe in which time is real).

At the very least this book illustrates what can be done when a discipline reaches a dead-end. Fundamental assumptions are re-examined and changed.

One of the joys of looking at the problems that have arisen in another discipline is that ideas applicable to law may be brought to mind. Even now, while I half-listen to New Zealand playing Sri Lanka in a one-dayer at Nelson.

Is there an unknown law that has yet to be perceived?

Obviously, yes. All the things that have yet to be invented are potential subjects for new law, and new kinds of laws. It is impossible to imagine what they may be, but we can say that there will be laws that will apply to them. Whether those laws will be recognisable by reference to our current criteria, or whether new criteria for recognising law will evolve, is not known. But we can say that there is no reason to keep our definition of law constant so that it is temporally limited to known conditions.

Does the law apply everywhere?

Courts have had to decide whether constitutional protections apply extra-territorially (for example see the case discussed here on 13 June 2008). There is increasingly a tendency for the law of one territory to be given extra-territorial application, at least as far as the courts of the domestic territory are concerned. And within a territory it seems there is no room for exceptions to the obligation to obey the law; exceptions are within the law, not extraneous to it. The law applies under the surface of the earth and above it, extending into space. Rights may be given over territory on the moon, and beyond. The extent of the application of the law may only be limited by the human imagination. This means it may apply in environments that are little known, raising the question of the extent to which the conditions for application of law are part of the definition of law.

What is progress in law?

Social norms do not have to be laws (see Gardner, Law as a Leap of Faith, reviewed here on 6 July 2013). If procedures are applied to norms, sufficient to make them recognisable as laws, then that is what they are. But some laws are rights, accepted as somehow being of a higher kind than other laws. If that has happened to a norm, the progress is from a non-legally enforceable social convention, to law, to higher law. Increasing recognition of rights suggests increasing opportunity for progress. Law is not static in this regard. Whether rights will continue to increase, or will reduce, is not known, but there is no reason to think that present trends will always apply. To what extent can we expect to be able to prevent, or encourage, change?

Is it useful to ask why a law exists?

People don’t need laws: it is possible to imagine a community that functions without a legal system (Gardner, above, pp 296-301, suggesting that the functions of law can be served by conventions like morality, etiquette, games, and traditions, and law may have different importance at different times in history, and may one day be lost and forgotten).

So what is law for? Convenience, obviously, in settling disputes, minimising conflict, and preventing or making-good harm. Those functions can be achieved by means other than law, so they do not assist in defining what law is. Law is not defined by its use, but by the process by which it comes into existence.

What is the relationship between a law and the environment in which it applies?

The application of a law is different from its definition as law. A law may be a law although the circumstances in which it could apply have never arisen. For example, laws made to apply in the event of natural disasters or epidemics are still laws pending those catastrophes. The law is not imaginary, although its application is. One of the main aims of criminal law is deterrence, and it is made in the hope – optimistic though it may be – that it will never need to be applied.

The environment in which a law applies may change dramatically, while the law stays the same. But this stasis is not essential: the law may be developed, by conventional techniques of legal reasoning, to meet new demands. To what extent is it then the same law as before? Laws, once created, may evolve with the environments in which they are applied.

What is the relationship between law and reality?

Just as in physics mathematics should not be confused with the reality which it is used to explore, so too in law the techniques of legal reasoning should not be confused with the reality to which law has to be applied. Conventional legal reasoning – the techniques of statutory interpretation, the methods of arguing about case law – will not necessarily produce the correct application of law to a particular problem. The life of the law, as has been said, is not logic but experience. Logic, in law, is subject to correction on policy grounds.

To what extent should legal concepts be defined?

The fight in physics is against uncertainty, whereas in law uncertainty can be an advantage. The circumstances in which a law may have to be applied cannot necessarily be wholly anticipated when the law is made, and some judicial creativity in its application should be allowed for, if the law is to remain useful. It is not unusual to find a statute on a subject which itself is not defined, as for example where the Search and Surveillance Act 2012 [NZ] does not define search.

It may not be useful to define concepts when the law’s purpose may have to be applied in circumstances which, at present, are not clearly perceived. We may know what we want, without necessarily knowing when we may want it. Should this desire be expressed as a law?

What are the premises of the rule of law, and should they be the same everywhere?

An idea that has emerged relatively recently is that a fundamental requirement of law is that it should be identifiable, ascertainable, equal in its application, accessible, and, to an extent that is a matter of some debate, consistent with the requirements of a fair trial and other fundamental rights. The debate about this latter point is not about whether trials should be fair, etc, but about whether this requirement of fairness and conformity with fundamental rights is part of the rule of law.

It seems uncontroversial that the law should be ascertainable and equal in its application, but this is not necessarily universally accepted. There has recently evolved the closed-material form of trial, where the defendant is not told what some of the prosecutor’s evidence is. Public interest in security is said to outweigh the defendant’s right to confront and cross-examine opposing witnesses. See further the discussion here on 18 April 2014.