The constraints on judicial review of decisions to prosecute: Director of Public Prosecutions v Durham (Trinidad and Tobago) [2024] UKPC 21

While it is possible to successfully challenge on review a prosecutorial decision to bring or continue with criminal proceedings, it is only in highly unusual circumstances that such a review will be successful. Indeed, the very bringing of review proceedings may be an abuse of process, because the proper course is to avoid interference in criminal proceedings by civil review where a remedy could be available in the course of the criminal proceedings.

The constraints on review of criminal prosecutorial decisions are set out in Director of Public Prosecutions v Durham (Trinidad and Tobago) [2024] UKPC  21 at [51]-[60]. The law is largely common law, drawn from diverse jurisdictions. There has been some hesitancy in Australia in accepting that decisions to prosecute are amenable to judicial review, although in Likiardopoulos v The Queen [2012] HCA 37 (noted here on 15 September 2012) French CJ did not exclude the possibility.

An application for a stay of criminal proceedings as a means of preventing a prosecution from continuing is usually more appropriate than an application for civil review, although it is often said that a stay is only granted as a remedy of last resort. The same is said for civil review (Durham at [53]).

The circumstances in which a stay would be appropriate are diverse but two categories are established (Durham at [84]). The second category, where continuation of the criminal proceedings would offend the court’s sense of justice and propriety, is illustrated - to introduce a New Zealand example - where a defendant had pleaded guilty but his co-defendants had maintained pleas of not guilty and had had their proceedings stayed; it was appropriate to stay the defendant’s proceedings too in order to avoid an appearance of unfairness: Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705, and similarly, Stephens v R [2017] NZHC 2341. In those cases the stays were a proper means of preventing the prosecutions from continuing (and in any event the Crown, no doubt sharing the court’s sense of fairness, had not opposed the stays being ordered).

The Board summarises the considerations relevant to stays in Durham at [84], referring to and following Warren v Attorney General of the Bailiwick of Jersey (Court of Appeal of Jersey) [2011] UKPC 10 (noted here on 31 March 2011).

A prosecutorial decision not to prosecute may be subject to civil review: Osborne v Worksafe New Zealand [2017] NZSC 175.

See also, Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKSC 1, noted here on 27 January 2024.

Identifying questions of law: R v Hodgson, 2024 SCC 25

Distinguishing questions of law from questions of fact is not always easy. The distinction can be important, as where a right of appeal is limited to appeal on a question of law only.

Where a person has been acquitted of an offence, the prosecutor will usually only have a right of appeal on a question of law. [1]

The Supreme Court of Canada has addressed the meaning of “question of law” in R v Hodgson, 2024 SCC 25 at [32]-[36]. If a question does not depend on contested facts, it will generally be a question of law (for example, statutory interpretation, the scope of a right, or the definition of the elements of an offence [33]). Sometimes, the way a trial judge has assessed the evidence can give rise to a question of law, for example if a finding of fact was not supported by evidence, if the legal consequence of a finding of fact was in error, if the evidence was assessed on the basis of a wrong legal principle, or if the judge failed to assess all the evidence in relation to the ultimate issue of guilt or innocence [35].

Other questions of law are whether a fact is relevant, whether probative value excedes prejudicial effect, and more generally, whether evidence is admissible and whether a judicial discretion has been exercised in accordance with principle. [2]

In Hodgson the Court added that acquittals are not overturned lightly, and that the prosecutor must convince the appeal court “to a reasonable degree of certainty” that the verdict of acquittal would not necessarily have been the same had the error not occurred, and that the burden in this respect is very heavy. [36] [3]

The Supreme Court in Hodgson emphasised the need for the court below to be clear on what question of law it was deciding in the appeal [37], [39]-[40]. For example, where an appeal court overturns an acquittal because it concludes that a trial judge erred in assessing the evidence based on a wrong legal principle, “it should explain which principle is at issue, which of its components or aspects is at the root of the error, and how the trial judge’s reasons demonstrate an erroneous understanding or misapprehension of that component or aspect.” [43].

Other aspects of this appeal concerned the mens rea for murder, and the mental elements of self-defence. The trial judge had not erred in law in these respects, so the appeal was allowed and the acquittal restored.

Rowe J concurred, and added that it would be an error of law for the judge’s reasoning to incorporate a “myth” (for example - although “myths” is an open category - by making use of one of the twin myths that have been identified in sexual assault cases [4]).

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[1] See, for example, s 296 of the Criminal Procedure Act 2011 [NZ], s 676(1)(a) of the Criminal Code of Canada.

[2] Illustrative cases include R v Gwaze [2010] NZSC 52 at [49]-[53] (noted here on 18 May 2010), DPP v Ziegler [2021] UKSC 23 at [54], R v JMH, 2011 SCC 45 (noted here on 27 October 2011).

[3] See also the footnote to my note on McElrath v Georgia, 22 February 2024.

[4] See my discussion of R v Kruk here on 9 March 2024.

Construing "otherwise": Fischer v United States USSC 23-5572

Law teachers who have to keep first year students amused will be delighted with Fischer v United States USSC 23-5572 (28 June 2024).

We all know the old maxims of statutory interpretation, noscitur a sociis and ejusdem generis. They seem to answer the question of what a general expression means when it follows a list of specifics. They both suggest that the general expression should have its meaning coloured, or focused, by the specifics.

The example in Fischer is this piece of legislation, 18 U.S.C. 1512(c):

“(c) Whoever corruptly—

“(1) alters, destroys, mutilates, or conceals a record,

document, or other object, or attempts to do so, with the

intent to impair the object’s integrity or availability for

use in an official proceeding; or

“(2) otherwise obstructs, influences, or impedes any

official proceeding, or attempts to do so,

“shall be fined . . . or imprisoned not more than 20 years, or both.”

Does the word “otherwise” mean in ways like those specified in (1), or is it more general?

Whether the maxims apply depends, as this case illustrates, on the purpose or purposes of the legislator, the structure of the enactment and the context of the section, the need to avoid redundancy, the more general consequences of a proposed interpretation, and the courts’ approach to similar legislation. Indeed, the maxims seem to be, at least in this case, more useful as a description of the result of interpretation than as a guide to what interpretation should be applied.

The Court in Fischer was divided. Roberts CJ, delivering the opinion of the Court, put its conclusion in this way:

“ … subsection (c)(1) refers to a defined set of offense conduct—four types of actions that, by their nature, impair the integrity or availability of records, documents, or objects for use in an official proceeding. When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct, subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1).”

The dissenters, Barrett J, joined by Sotomayor and Kagan JJ, found the canons of interpretation a poor fit, (“like using a hammer to pound in a screw”), noting the division of the section into separate paragraphs, having different verbs and different objects, making them independent and with different mens rea requirements. They therefore construed the word “otherwise” broadly, whereas the majority held that it gave the general phrase a more specific meaning.

The Chief Justice managed to work in the word “pumpfake”.

Access to the courts, abuse of process: Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21

Aspects of the law of abuse of process that are of interest to criminal lawyers are stated in Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21.

The case is of considerable interest to defamation lawyers too. The claim for defamation had been struck out, and this is a successful appeal against that striking out. Lord Reed delivered the judgment of the Court.

“40. The law in relation to abuse of process has developed in the manner characteristic of the common law. Relevant principles have emerged as the courts have considered the circumstances of cases in which the issue has arisen in different contexts. As Lord Diplock indicated in Hunter [1982] AC 529 at p 536, it would be unwise to confine the concept of an abuse of process to fixed categories. Nevertheless, a number of categories have become well established. Examples include the unfair or oppressive treatment of an accused, the rule in Henderson v Henderson (1843) 3 Hare 100 that requires a party to bring its whole case in a single set of proceedings, and the power to stay or dismiss proceedings which are frivolous or vexatious.”

This description of how the common law develops is reminiscent of that given by Oliver Wendell Holmes Jr, noted here on 12 February 2024 at footnote 3.

At [65] Lord Reed continued:

“65. As explained earlier, Lord Diplock’s description of abuse of process is of the misuse of the court’s procedure in a way which would be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people. The focus of the doctrine is on public confidence in the administration of justice rather than on the interests of a party, as Lord Diplock’s description implied (and as has been more fully explained in later cases such as City of Toronto, [2003] 3 SCR 67 cited in para 38 above), but the two are directly connected where the court’s procedure is being misused in a manner which is manifestly unfair.”

This case is about access to the courts and when prevention of that access is an abuse of process. Another context for the law against abuse of process, more familiar in criminal cases, is abuse that may arise from the continuation of proceedings. Common to cases of access and cases of continuation are the concepts of fairness and of prevention of disrepute to the administration of justice.

Advocacy needs focus: Ruhumatally v The State (Mauritius) [2024] UKPC 15

Most advocates know how burdensome - even embarrassing - it is to advance weak submissions.

We used to have a Court of Appeal justice who, after counsel had completed extended submissions on what was apparently thought to have been a strong ground of appeal, would ask (in a darkly humorous sort of way), “Is that your strongest point?” [1]

The Privy Council has had to remind us that it is a duty of counsel to focus on arguable points: Ruhumatally v The State (Mauritius) [2024] UKPC 15, at 55:

“The Board does not wish to be unfairly critical. It of course understands the difficulties sometimes faced by defence advocates who, trying their best to discharge their professional duties towards their lay clients, are anxious not to overlook any point or argument which may assist the defence. It is however an important part of the advocate’s role to exercise judgement and discrimination in focusing on the arguable points, rather than obscuring them by a plethora of poor points and weak submissions. No court is assisted by the multiplication of arguments regardless of their merit. Nor is a defendant assisted by such an approach, which runs the risk of undermining the stronger points in the defendant’s favour. It must, moreover, be clearly understood that a defendant who advances a multitude of arguments, including some which are plainly without merit, cannot thereby create an artificial ground of appeal based upon a complaint that the court below did not give a detailed response to every single point which was raised. In such circumstances, a failure by the court to address particular points in detail is not in itself an indication that the defendant’s case has not been considered and decided in accordance with the law.” [2]

This appeal against conviction for murder was successful (a retrial was ordered).

I have mentioned advocacy here, on 17 April 2015 (reviewing Alan Paterson’s most excellent book Final Judgment - The Last Law Lords and the Supreme Court), and also in noting R v Samaniego on 9 April 2022.

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[1] A judge who embarks on this sort of provocation can hardly complain if counsel replies with the gently sarcastic "Properly understood, yes."

[2] I think the same exercise of judgment and discrimination by counsel should be applied more frequently in decisions about whether to appeal in the first place. Weak appeals tend to cause the law to develop in ways that are not necessarily desirable. Examples may be found in the law of the admissibility of improperly obtained evidence.

Openness about protection of informers: Canadian Broadcasting Corp v Named Person, 2024 SCC 21

Procedures for reconciling the interests involved in cases where informer privilege exists are the subject of Canadian Broadcasting Corp v Named Person, 2024 SCC 21.

My summary in the following paragraphs does not adopt all the terminology used by the Canadian court, in order to point to general relevance.

Once an informer’s privilege is established, [1] it is absolute (that is, non-discretionary). It applies to prevent publication of information concerning the identity of the informer and information that could jeopardize the informer’s safety [42]. [2]

The public interest in not discouraging people from assisting the police in the investigation of crime, and associated interests supporting informer privilege [35] can be in conflict with the principle of open justice, which is aimed at promoting public confidence in the integrity of the judicial system [29]. The former must take precedence [42]. Therefore, when it is necessary to exclude the public and the media from those proceedings where privileged information about an informer is revealed, there must be as much openness as is possible and the existence of the in camera (or “parallel”) proceedings must not be concealed [74]-[81].

When a decision has to be made about whether to hold proceedings in camera, the judge must have a discretion to alert potentially interested third parties who may wish to make submissions on the issue [55]. The rights of the media to seek judicial review of a confidentiality order must be respected as far as is possible [81].

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[1] There will usually be statutory criteria to satisfy before informer status is established. For example, the Evidence Act 2006 [NZ] defines who is an informer in s 64(2), but the privilege may be disallowed in certain circumstances, set out in s 67 (which applies to the other privileges too, except the privilege against self-incrimination.)

[2] The New Zealand provision, s 64(1), only covers the informer’s identity. See Wright-Meldrum v R [2022] NZCA 649 at [31], [35]-[36]. As to undercover officers, intelligence officers and anonymity orders generally, see the Criminal Procedure Act 2011 [NZ], ss 84, 91, 94.

Defence against provoked assault: Dayney v The King [2024] HCA 22

Sometimes, the clarity of a court’s exposition of a statutory provision makes one wonder why the legislation drafting office couldn’t come up with such clarity in the first place.

For example, see Dayney v The King [2024] HCA 22, at [1] and [26], referring to the third clause of s 272(2) of the Criminal Code (Qld).

Funnily enough, s 272(2) has some similarity to s 49(b) and (c) of the Crimes Act 1961 [NZ], provisions which were repealed on 1 January 1981.

From that date self-defence (and defence of another) has been governed solely by s 48.

Section 48 has been the victim of changing fashions in pronoun use,[1] its original and in my opinion more elegant version having used only the male pronoun. Even now, when we have so many more genders, the current s 48 seems somewhat old-fashioned.

But aside from that, s 48 is a justification, whereas the Queensland provision is merely an excuse. If the defendant provoked the assault, the use of force in self-defence or in defence of another may nevertheless be reasonable.[2]

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[1] You can have fun with de-pronouning legal writing; see my note here on 10 July 2014.

[2] Compare R v Rashford [2005] EWCA Crim 3377 at [19], Simon v R [2016] NZCA 449 at [18], R v Keane; R v McGrath [2010] EWCA Crim 2514, Zecevic v DPP (1987) 162 CLR 645 at 663. The defendant’s role in the incident is referred to in s 34(2)(c) of the Canadian Criminal Code, and see R v Khill, 2021 SCC 37.

The need for intention in the common law of joint enterprise liability: Bastian v The King (The Bahamas) [2024] UKPC 14

A post-R v Jogee; Ruddock v The Queen [1] application of the common law of joint enterprise liability [2] is yesterday’s decision of the Privy Council in Bastian v The King (The Bahamas) [2024] UKPC 14.

The common law of The Bahamas had apparently not taken the wrong turning that was corrected in the Jogee and Ruddock appeals [21]-[24], so this was not a case where the law had to be changed. The trial judge had erred in several respects on the requirement for intention [29], with the result that the convictions were unsafe [36], [43]. The proviso could not be applied [56], and no retrial was ordered on the charge of murder because the evidence of intention was too tenuous [61]. In The Bahamas murder requires an intention to kill [13], but the appellant might have been liable for manslaughter so the question of retrial for manslaughter was remitted [3] to the Court of Appeal of the Commonwealth of The Bahamas.

Of procedural significance is the Board’s observation on written assistance that should be given to juries where there are complicated issues of law and fact [57]. Whether this procedure should be followed in The Bahamas was for its Court of Appeal to consider.

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[1] See my note here, 2 April 2016.

[2] I like to call this “extended” secondary liability but sometimes I call it “common purpose” liability because of its slightly different statutory form in s 66(2) of the Crimes Act 1961 [NZ]. Essentially, it is liability for an offence that the defendant has neither personally committed nor aided, abetted, incited counselled or procured.

[3] Obviously it would be more correct to say that the Board humbly advised His Majesty that … (etc).