Judicial activism is irksome to legislators. In A and others v Secretary of State for the Home Department [2004] UKHL 56 (16 December 2004) seven Law Lords and Baroness Hale upheld the right of detainees to challenge the validity of subordinate legislation. Lord Walker dissented.
Lord Bingham, who delivered the leading speech, quoted, at para 41, Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, at para 54:
" … Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."
Accordingly, an order, made by the Home Secretary, derogating from the right not to be detained except pending deportation (Article 5(1)(f) of the ECHR), was held to be subject to review on proportionality grounds. Derogation is permitted, under the ECHR, if it is within the terms of Art 15.1: "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
In para 44 Lord Bingham reached his conclusion on proportionality:
"…The European Court does not approach questions of proportionality as questions of pure fact …. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC [the Special Immigration Appeals Commission] erred in law and the Court of Appeal erred in failing to correct its error."
Part of the reasons for the finding of lack of proportionality was that the order was discriminatory. The derogation order was accordingly quashed, and section 23 of the Anti-terrorism, Crime and Security Act 2001[UK] was declared to be incompatible with articles 5 and 14 of the European Convention.
Lord Hoffmann agreed in the result, but for the different reason that he was not satisfied that there was a sufficient emergency to permit the making of the derogation order. He made the point, at para 88, that he was not relying on law peculiar to the European context, and that the common law rights pre-existed the ECHR:
"88. … I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.
"89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.
"90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions."
Readers who are able to take a broad view will note the similarities of this case to Siloata v R, considered in the previous entry on this blogsite. The same essay of Montaigne, cited there, contains another appropriate observation:
"I hardly agree ... with the opinion of that man [Justinian, by his Code and his Pandects] who tried to curb the authority of his judges by a multitude of laws, thus cutting their meat up for them. He did not understand that there is as much liberty and latitude in the interpretation as in the making of them. ...
"... We have in France more laws than the rest of the world put together [Montaigne was writing in the 1580s]. ... 'As we once suffered from crimes, so now we are suffering from laws' [Tacitus, Annals, III, XXV]."
Friday, December 17, 2004
The Supreme Court and the fundamentals
As predicted in these blogs on 25 August 2004, the Supreme Court of New Zealand has upheld, in Siloata v R 16/12/04, SC CRI 8/2004, the primacy of the requirement of jury unanimity in the face of a statutory presumption of guilt in the absence of proof by the defence to the contrary. The Court of Appeal (in a judgment delivered by the President) had held that where this presumption applies, if the jury cannot agree on their verdict the accused must be convicted because he has failed to rebut the presumption of guilt. That is, according to the Court of Appeal, there was no room for a "hung jury" once the presumption of guilt applied. This view of the law has been corrected by the Supreme Court. It held that where the jury is not unanimous as to whether the accused has rebutted the presumption of guilt, there is no verdict.
In doing the count, if there are any "don’t knows", these go on the side of the guilties, because getting to the line (the standard of proof on the defence) is not crossing it. Thus, 11 jurors in favour of acquittal, and one don’t know, amounts to a hung jury. This is preferable to the Court of Appeal’s approach, whereby 11 innocents and one don’t know would mean a guilty verdict.
I should point out that this decision does not depend for its validity on the requirement that verdicts must be verdicts of all 12 jurors. If that requirement were to be changed, so that a majority of, say, 10 would be sufficient for a verdict, then the Siloata interpretation is that in such a case there must be unanimity among 10 jurors: 10 thinking the accused has satisfied the burden of proof means a "not guilty" verdict; 10 thinking he has not met the burden (or some or all of the 10 being unable to decide whether he has or not, ie being on the line) means "guilty", and less than 10 being sure that he has, or has not, met the burden means a hung jury.
While the law was corrected in Siloata, the result of the case was dismissal of the appeal, because the way the judge had directed the jury at trial must have left them with the correct impression, namely that they must be unanimous in order to have arrived at a verdict. The error in the case had been introduced at the Court of Appeal level, not at trial. Although in this case it might be thought that the defence had won the battle but lost the war, because the conviction was upheld, on a broader perspective, this is a case of the defence losing the battle (this case) but winning the war (getting the law corrected). It must be acknowledged that the Crown did not oppose the correction, simply contending that there had been no error at trial.
It is impossible to devise a legal system, involving a hierarchy of courts, where there will not be the possibility of introduction of errors at each level. Inevitably, with time, there will be the occasional instance of error in the decisions of the Supreme Court, just as there has been in the House of Lords and the Privy Council. It is important that the Supreme Court should regard itself as free to depart from its own precedents when they are shown to have been wrong.
The point considered by the Supreme Court in Siloata was very narrow. There are dangers in looking too narrowly at the law. Montaigne, in "On Experience" (Essays, Book 3 Chapter 13) reminds us of Seneca's observation (Letters LXXXIX): "Anything that is divided into minute grains becomes confused." One might respectfully wonder whether it was appropriate to restrict the issues in this case so as to exclude the important matters of (1) whether the standard of proof on the defence to rebut the presumption of purpose should remain at balance of probabilities, when human rights law favours the lower standard of raising a reasonable doubt, and (2) whether the jurors have to be unanimous on the issue of possession of a minimum quantity of drug before any of them can use the presumption of purpose in their reasoning towards a verdict, when usually the requirement for unanimity permits individual jurors to determine facts for themselves as they work towards a decision. This second point is explored in more detail below.
An aspect of the law concerning use of the presumption was not considered in Siloata because the accused had conceded possession of the quantity of drug necessary to raise the presumption of purpose of supply. This aspect is, does the presumption only arise if the jury unanimously find possession of the necessary quantity of drug, or can the presumption be used as a fact finding tool by any individual juror who is satisfied beyond reasonable doubt that the accused had possession of that quantity? It seems to have always been assumed that the jurors will all be in agreement about quantity before the presumption arises. Indeed, the requirement for unanimity, on whether the accused has satisfied the standard of proof to rebut the presumption, reflects this assumption. A perhaps unintended consequence is that, if one juror is not satisfied beyond reasonable doubt that the accused had possession of the necessary quantity of drug to raise the presumption of purpose, then none of the jurors can use the presumption in deciding the issue of purpose of supply. A preferable approach would, it is respectfully suggested, have been to regard the presumption as a fact finding tool available to those jurors who were satisfied on the issue of quantity; the jury has to be unanimous in its verdict but may reach that verdict by different routes.
I suggest that the presumption has developed an unfortunate mystique which has caused it to be misunderstood. The presumption is simply a fact-finding tool. It should be available for use by any juror who is satisfied that the criteria for invoking it are met. It is a separate matter from the requirement for jury unanimity in the verdict, and it is separate from the issue of standard of proof. Nevertheless, these considerations will all come together in the case. The effect of the presumption is to make it harder for the accused to avoid the conclusion, in the mind of any juror for whom the presumption is available in fact finding, that the drug was possessed for supply.
In doing the count, if there are any "don’t knows", these go on the side of the guilties, because getting to the line (the standard of proof on the defence) is not crossing it. Thus, 11 jurors in favour of acquittal, and one don’t know, amounts to a hung jury. This is preferable to the Court of Appeal’s approach, whereby 11 innocents and one don’t know would mean a guilty verdict.
I should point out that this decision does not depend for its validity on the requirement that verdicts must be verdicts of all 12 jurors. If that requirement were to be changed, so that a majority of, say, 10 would be sufficient for a verdict, then the Siloata interpretation is that in such a case there must be unanimity among 10 jurors: 10 thinking the accused has satisfied the burden of proof means a "not guilty" verdict; 10 thinking he has not met the burden (or some or all of the 10 being unable to decide whether he has or not, ie being on the line) means "guilty", and less than 10 being sure that he has, or has not, met the burden means a hung jury.
While the law was corrected in Siloata, the result of the case was dismissal of the appeal, because the way the judge had directed the jury at trial must have left them with the correct impression, namely that they must be unanimous in order to have arrived at a verdict. The error in the case had been introduced at the Court of Appeal level, not at trial. Although in this case it might be thought that the defence had won the battle but lost the war, because the conviction was upheld, on a broader perspective, this is a case of the defence losing the battle (this case) but winning the war (getting the law corrected). It must be acknowledged that the Crown did not oppose the correction, simply contending that there had been no error at trial.
It is impossible to devise a legal system, involving a hierarchy of courts, where there will not be the possibility of introduction of errors at each level. Inevitably, with time, there will be the occasional instance of error in the decisions of the Supreme Court, just as there has been in the House of Lords and the Privy Council. It is important that the Supreme Court should regard itself as free to depart from its own precedents when they are shown to have been wrong.
The point considered by the Supreme Court in Siloata was very narrow. There are dangers in looking too narrowly at the law. Montaigne, in "On Experience" (Essays, Book 3 Chapter 13) reminds us of Seneca's observation (Letters LXXXIX): "Anything that is divided into minute grains becomes confused." One might respectfully wonder whether it was appropriate to restrict the issues in this case so as to exclude the important matters of (1) whether the standard of proof on the defence to rebut the presumption of purpose should remain at balance of probabilities, when human rights law favours the lower standard of raising a reasonable doubt, and (2) whether the jurors have to be unanimous on the issue of possession of a minimum quantity of drug before any of them can use the presumption of purpose in their reasoning towards a verdict, when usually the requirement for unanimity permits individual jurors to determine facts for themselves as they work towards a decision. This second point is explored in more detail below.
An aspect of the law concerning use of the presumption was not considered in Siloata because the accused had conceded possession of the quantity of drug necessary to raise the presumption of purpose of supply. This aspect is, does the presumption only arise if the jury unanimously find possession of the necessary quantity of drug, or can the presumption be used as a fact finding tool by any individual juror who is satisfied beyond reasonable doubt that the accused had possession of that quantity? It seems to have always been assumed that the jurors will all be in agreement about quantity before the presumption arises. Indeed, the requirement for unanimity, on whether the accused has satisfied the standard of proof to rebut the presumption, reflects this assumption. A perhaps unintended consequence is that, if one juror is not satisfied beyond reasonable doubt that the accused had possession of the necessary quantity of drug to raise the presumption of purpose, then none of the jurors can use the presumption in deciding the issue of purpose of supply. A preferable approach would, it is respectfully suggested, have been to regard the presumption as a fact finding tool available to those jurors who were satisfied on the issue of quantity; the jury has to be unanimous in its verdict but may reach that verdict by different routes.
I suggest that the presumption has developed an unfortunate mystique which has caused it to be misunderstood. The presumption is simply a fact-finding tool. It should be available for use by any juror who is satisfied that the criteria for invoking it are met. It is a separate matter from the requirement for jury unanimity in the verdict, and it is separate from the issue of standard of proof. Nevertheless, these considerations will all come together in the case. The effect of the presumption is to make it harder for the accused to avoid the conclusion, in the mind of any juror for whom the presumption is available in fact finding, that the drug was possessed for supply.
Tuesday, November 30, 2004
The Joy of Jurisprudence
Yes, jurisprudence can be useful. Consider the problem mentioned in these blogs on Wednesday November 17, 2004 of whether a person who intends to return a drug to its owner has possession of it for supply: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341.
Is returning a drug to its owner the offence of “supply” of that drug? How do we decide whether conduct should be an offence when the statutory definition is ambiguous?
We might consult the website of the Oxford Professor of Jurisprudence. Indeed, we did.
Consequently, some ideas emerge from our mental fog, although these may or may not be what Professor Gardner intended.
How do we feel about a person who returns a drug to its owner? Has he done wrong? If we cannot really say that we consider his act wrong, then we should conclude that he has committed no offence.
We may, however, feel that he has done some wrong. How much wrong? Not as much as a person who supplies a drug to a stranger. Why not? Because in returning the drug to its owner, he has not given any new power over the drug to anyone, as the owner had the power to demand it back anyway. So he is not as bad as he could be. There is a “residual” sort of wrong about what he did. There has been a conflict of reasons about why supplying drugs is wrong. On the one hand, supply of a drug to another person increases the amount of access to the drug, and that is harmful. On the other hand, if it is returned to its owner, there is no increase in access; there could even be said to be a decrease in access as the minder of the drug no longer has it. Yet the owner has it, and that is wrong. Looked at this way, the person who returns the drug to its owner has a defence. The offence has occurred but as far as the law is concerned the defence, that the supply was to the owner, prevents criminal responsibility attaching to the supplier.
A third alternative is that we may feel that he has done wrong, and this wrong is not of a merely residual kind. It is a full-blown sort of wrong. In this case returning the drug to its owner is not a defence.
That seems so simple that we may wonder whether we are really doing jurisprudence.
Another sort of analysis is available if we consider the offence of possession of the drug for the purpose of supply. Again, the intention is to return it to its owner. If returning the drug to its owner is a defence to a charge of supplying the drug, possession for the purpose of supply is what might be called a “fault-anticipating wrong”. The wrong is, in expanded terms, possession of the drug for the purpose of supplying it to someone who does not already own it. The fault that is anticipated in this formulation of the charge is the supply to a non-owner. There are two basic wrongs here: possession of the drug, and supply of it to a non-owner. The combination of these basic wrongs creates a “parasitic” or “further” wrong, namely possession of a drug for supply to a non-owner. The feature of the “fault-anticipating wrong” that makes it different from basic wrongs is that the defence, that the intention was to supply the drug to an owner, is actually a negation of the offence itself, instead of being a separate matter that excludes liability.
So what?
Well, the point is to clarify the relationship between wrongdoing and fault. Basic offences, the usual kind, involve wrongdoing but not, if a successful defence is available, fault in its fullest sense. There has, in such cases, been an offence, there has been wrongdoing, but because there is has also been a defence, there has not been enough fault to attract criminal liability. But the other kind of offences, fault-anticipating wrongs, do not, if a successful defence is available, involve wrongdoing. There is, in such cases, no offence, no wrongdoing, and no fault.
Working out these implications of the choices concerning whether returning a drug to its owner is supply, should help decide whether this conduct is wrongdoing.
Is returning a drug to its owner the offence of “supply” of that drug? How do we decide whether conduct should be an offence when the statutory definition is ambiguous?
We might consult the website of the Oxford Professor of Jurisprudence. Indeed, we did.
Consequently, some ideas emerge from our mental fog, although these may or may not be what Professor Gardner intended.
How do we feel about a person who returns a drug to its owner? Has he done wrong? If we cannot really say that we consider his act wrong, then we should conclude that he has committed no offence.
We may, however, feel that he has done some wrong. How much wrong? Not as much as a person who supplies a drug to a stranger. Why not? Because in returning the drug to its owner, he has not given any new power over the drug to anyone, as the owner had the power to demand it back anyway. So he is not as bad as he could be. There is a “residual” sort of wrong about what he did. There has been a conflict of reasons about why supplying drugs is wrong. On the one hand, supply of a drug to another person increases the amount of access to the drug, and that is harmful. On the other hand, if it is returned to its owner, there is no increase in access; there could even be said to be a decrease in access as the minder of the drug no longer has it. Yet the owner has it, and that is wrong. Looked at this way, the person who returns the drug to its owner has a defence. The offence has occurred but as far as the law is concerned the defence, that the supply was to the owner, prevents criminal responsibility attaching to the supplier.
A third alternative is that we may feel that he has done wrong, and this wrong is not of a merely residual kind. It is a full-blown sort of wrong. In this case returning the drug to its owner is not a defence.
That seems so simple that we may wonder whether we are really doing jurisprudence.
Another sort of analysis is available if we consider the offence of possession of the drug for the purpose of supply. Again, the intention is to return it to its owner. If returning the drug to its owner is a defence to a charge of supplying the drug, possession for the purpose of supply is what might be called a “fault-anticipating wrong”. The wrong is, in expanded terms, possession of the drug for the purpose of supplying it to someone who does not already own it. The fault that is anticipated in this formulation of the charge is the supply to a non-owner. There are two basic wrongs here: possession of the drug, and supply of it to a non-owner. The combination of these basic wrongs creates a “parasitic” or “further” wrong, namely possession of a drug for supply to a non-owner. The feature of the “fault-anticipating wrong” that makes it different from basic wrongs is that the defence, that the intention was to supply the drug to an owner, is actually a negation of the offence itself, instead of being a separate matter that excludes liability.
So what?
Well, the point is to clarify the relationship between wrongdoing and fault. Basic offences, the usual kind, involve wrongdoing but not, if a successful defence is available, fault in its fullest sense. There has, in such cases, been an offence, there has been wrongdoing, but because there is has also been a defence, there has not been enough fault to attract criminal liability. But the other kind of offences, fault-anticipating wrongs, do not, if a successful defence is available, involve wrongdoing. There is, in such cases, no offence, no wrongdoing, and no fault.
Working out these implications of the choices concerning whether returning a drug to its owner is supply, should help decide whether this conduct is wrongdoing.
Monday, November 29, 2004
Public policy exclusion of evidence
The relationship between the common law discretion to exclude evidence on fairness grounds, to the discretion to exclude evidence for breach of the Bill of Rights, is a matter about which the Court of Appeal seems rather hesitant. A misleading approach is evident in R v Murphey (2003) 20 CRNZ 278 (CA), where the discretions seem, without full discussion, to be regarded as being distinct from each other.
The true relationship between these discretions, I suggest, is that they are the same: the Bill of Rights discretion, explained in R v Shaheed [2002] 2 NZLR 377 (CA), is a common law discretion, because the Bill of Rights has no provision for what the consequences of breaches should be. Shaheed does not interpret the Bill of Rights. It does, however, develop the interpretative approach to determining what is unreasonable, in the context of searches, as set out in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Just as reasonableness involves a balancing of certain factors which emerge from the circumstances of a given case, so too does fairness. It is not surprising that factors relevant to reasonableness will be similar to those relevant to fairness.
In R v Pedersen 12/11/04, CA209/04 the New Zealand Court of Appeal had to address the fairness discretion, as the case did not involve a breach of rights. It did not refer to R v Shaheed, but the factors relevant to the decision, and the decision process itself, to the limited extent to which they were explained in the judgment, can be seen to be akin to the Shaheed model. The police had followed the appellant on to private property to require her to undergo a breath test; there was no evidence that the property was that of the appellant, and for the purposes of the case it was assumed that both the appellant and the officer were trespassers.
"[51] … The trespass [by the police] was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence."
Here, just as pursuant to Shaheed, the first point to consider is the wrongfulness of the police conduct. In the absence of a breach of rights, this could not be given the same weight as it would have if there had been such a breach. The evidence was reliable and so it could not be suggested that its admission would result in trial unfairness. Good faith, although often mentioned, is, as Shaheed stated, just a neutral factor; the Court could be taken as mentioning it to indicate that the wrongful conduct was not aggravated by deliberation. Absence of alternatives is relevant, because if a lawful procedure had been ignored that would weigh in favour of exclusion of the evidence, as the Court recently pointed out in R v Harder 9/11/04, CA61/04 at para 46. There is also a suggestion of urgency in the circumstances of the case, and this always weighs in favour of admission of the evidence.
In summary, it would have been appropriate for the Court to apply Shaheed directly, rather than to treat the fairness discretion as somehow more mysterious and detached. The result, in any event, is correct.
The true relationship between these discretions, I suggest, is that they are the same: the Bill of Rights discretion, explained in R v Shaheed [2002] 2 NZLR 377 (CA), is a common law discretion, because the Bill of Rights has no provision for what the consequences of breaches should be. Shaheed does not interpret the Bill of Rights. It does, however, develop the interpretative approach to determining what is unreasonable, in the context of searches, as set out in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Just as reasonableness involves a balancing of certain factors which emerge from the circumstances of a given case, so too does fairness. It is not surprising that factors relevant to reasonableness will be similar to those relevant to fairness.
In R v Pedersen 12/11/04, CA209/04 the New Zealand Court of Appeal had to address the fairness discretion, as the case did not involve a breach of rights. It did not refer to R v Shaheed, but the factors relevant to the decision, and the decision process itself, to the limited extent to which they were explained in the judgment, can be seen to be akin to the Shaheed model. The police had followed the appellant on to private property to require her to undergo a breath test; there was no evidence that the property was that of the appellant, and for the purposes of the case it was assumed that both the appellant and the officer were trespassers.
"[51] … The trespass [by the police] was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence."
Here, just as pursuant to Shaheed, the first point to consider is the wrongfulness of the police conduct. In the absence of a breach of rights, this could not be given the same weight as it would have if there had been such a breach. The evidence was reliable and so it could not be suggested that its admission would result in trial unfairness. Good faith, although often mentioned, is, as Shaheed stated, just a neutral factor; the Court could be taken as mentioning it to indicate that the wrongful conduct was not aggravated by deliberation. Absence of alternatives is relevant, because if a lawful procedure had been ignored that would weigh in favour of exclusion of the evidence, as the Court recently pointed out in R v Harder 9/11/04, CA61/04 at para 46. There is also a suggestion of urgency in the circumstances of the case, and this always weighs in favour of admission of the evidence.
In summary, it would have been appropriate for the Court to apply Shaheed directly, rather than to treat the fairness discretion as somehow more mysterious and detached. The result, in any event, is correct.
Thursday, November 25, 2004
An individual's access to the courts
Can a person who is detained by officials apply to a court for bail even when there is no prosecution or action brought against him? The Supreme Court of New Zealand has today decided the issue: Zaoui v Attorney-General 25/11/04, SC CIV 13/2004, in a case that departs from the law as had been indicated in some English decisions (eg R v Secretary of State for the Home Department, ex parte Turkoglu [1988] 1 QB 398, 400 per Sir John Donaldson MR).
The central point, around which this cause celebre revolves, is whether the High Court can grant bail to a person when there is no current case, before a court, involving that person. That is, is bail a merely ancillary matter, or is the jurisdiction to grant bail an independent matter? The issue has a faint echo of implications of the majority decision of the Supreme Court of the United States of America in Hamdi v Rumsfeld (see my blogs of 21.9.04 and 26.9.04). Hamdi was not cited in Zaoui, of course, as in Hamdi there was no argument about the court's jurisdiction to hear the case. However the discussion in Hamdi of how judicial procedures should be adapted to the requirements of national security may have some relevance for the bail application that will follow the decision in Zaoui. Hamdi suggests that when it comes to the procedural details of the bail hearing, a more pragmatic approach (in the Posnerian sense) will be appropriate.
The Supreme Court, in taking the formalist approach, has not allowed the law to be governed by administrative convenience. The dangers of doing so were, after all, the lesson handed to the New Zealand Court of Appeal by the Privy Council in Taito v R (2002) 19 CRNZ 224. Fears of a flood of bail applications have not influenced the decision.
The SC described the bail decision in this case in these terms (at para 101):
"This is a case where national security issues arise. It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed upon him. The applications fall to be considered against the background of concern for liberty recognised by the Bill of Rights Act and the common law. Accordingly the case raises significant matters of public interest which require careful balance."
Of course, to get to that point, the Court had to decide that jurisdiction to grant bail existed. There had to be an inherent jurisdiction to grant bail that had not been excluded by statute.
The conclusion on inherent jurisdiction was:
"[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840 [citing English Laws Act 1858]. The powers of the English superior courts have devolved in New Zealand on the High Court [citing section 16 Judicature Act 1908, preceded by the Supreme Court Ordinances of 1841 and 1844 and the Supreme Court Acts of 1860 and 1882]. The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as "inherent" or "implied") [citing R v Gage 3 Vin Abridg 518, per Holt CJ; In re Nottingham Corporation [1897] 2 QB 502, 509 per Pollock B; R v Spilsbury [1898] 2 QB 615, 620 per Lord Russell CJ; and RJ Sharpe The Law of Habeas Corpus (2 ed 1989) 141-142].
"[35] Some confusion may arise because the term "inherent jurisdiction" is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction [citing Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701]."
The terminology here is a bit confusing. "Independent" means "not ancillary", that is, not associated with a matter currently before the court. "Substantive" means concerning the substance of a dispute, so is therefore a term applicable to where bail may arise as an ancillary matter. "Procedural" means how the court conducts its affairs, and this term applies to both independent and ancillary cases.
The Court appears to be saying that the inherent common law jurisdiction can be exercised independently of a matter currently before the court, and its exercise can be a matter of procedure, without having to connect to some substantive issue (and independent cases will not, by definition, involve substantive issues).
The jurisdiction is supervisory, and is best not described as "stand alone". That is, it arises once there is a purported exercise of a power.
"[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted
bail in its original inherent jurisdiction after bail had been declined by a District Court.
"[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as "stand alone" or in vacuo.
"[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction."
As far as the second consideration was concerned, whether the inherent jurisdiction to grant bail had been excluded by statute, the Court held that there was nothing in the fact that a person was a danger to the security of New Zealand that was necessarily incompatible with release on bail (para 66). It did, however, acknowledge that when bail is an issue, in such cases security will be of major importance (para 69).
This case, from a broad perspective, illustrates the point of prime importance, namely the presumption that Parliament intends its legislation to be consistent with obligations that New Zealand has accepted under international law (para 44). Accordingly, there would have to be strong statutory language to defeat the entitlement of a person to challenge their detention.
The central point, around which this cause celebre revolves, is whether the High Court can grant bail to a person when there is no current case, before a court, involving that person. That is, is bail a merely ancillary matter, or is the jurisdiction to grant bail an independent matter? The issue has a faint echo of implications of the majority decision of the Supreme Court of the United States of America in Hamdi v Rumsfeld (see my blogs of 21.9.04 and 26.9.04). Hamdi was not cited in Zaoui, of course, as in Hamdi there was no argument about the court's jurisdiction to hear the case. However the discussion in Hamdi of how judicial procedures should be adapted to the requirements of national security may have some relevance for the bail application that will follow the decision in Zaoui. Hamdi suggests that when it comes to the procedural details of the bail hearing, a more pragmatic approach (in the Posnerian sense) will be appropriate.
The Supreme Court, in taking the formalist approach, has not allowed the law to be governed by administrative convenience. The dangers of doing so were, after all, the lesson handed to the New Zealand Court of Appeal by the Privy Council in Taito v R (2002) 19 CRNZ 224. Fears of a flood of bail applications have not influenced the decision.
The SC described the bail decision in this case in these terms (at para 101):
"This is a case where national security issues arise. It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed upon him. The applications fall to be considered against the background of concern for liberty recognised by the Bill of Rights Act and the common law. Accordingly the case raises significant matters of public interest which require careful balance."
Of course, to get to that point, the Court had to decide that jurisdiction to grant bail existed. There had to be an inherent jurisdiction to grant bail that had not been excluded by statute.
The conclusion on inherent jurisdiction was:
"[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840 [citing English Laws Act 1858]. The powers of the English superior courts have devolved in New Zealand on the High Court [citing section 16 Judicature Act 1908, preceded by the Supreme Court Ordinances of 1841 and 1844 and the Supreme Court Acts of 1860 and 1882]. The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as "inherent" or "implied") [citing R v Gage 3 Vin Abridg 518, per Holt CJ; In re Nottingham Corporation [1897] 2 QB 502, 509 per Pollock B; R v Spilsbury [1898] 2 QB 615, 620 per Lord Russell CJ; and RJ Sharpe The Law of Habeas Corpus (2 ed 1989) 141-142].
"[35] Some confusion may arise because the term "inherent jurisdiction" is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction [citing Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701]."
The terminology here is a bit confusing. "Independent" means "not ancillary", that is, not associated with a matter currently before the court. "Substantive" means concerning the substance of a dispute, so is therefore a term applicable to where bail may arise as an ancillary matter. "Procedural" means how the court conducts its affairs, and this term applies to both independent and ancillary cases.
The Court appears to be saying that the inherent common law jurisdiction can be exercised independently of a matter currently before the court, and its exercise can be a matter of procedure, without having to connect to some substantive issue (and independent cases will not, by definition, involve substantive issues).
The jurisdiction is supervisory, and is best not described as "stand alone". That is, it arises once there is a purported exercise of a power.
"[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted
bail in its original inherent jurisdiction after bail had been declined by a District Court.
"[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as "stand alone" or in vacuo.
"[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction."
As far as the second consideration was concerned, whether the inherent jurisdiction to grant bail had been excluded by statute, the Court held that there was nothing in the fact that a person was a danger to the security of New Zealand that was necessarily incompatible with release on bail (para 66). It did, however, acknowledge that when bail is an issue, in such cases security will be of major importance (para 69).
This case, from a broad perspective, illustrates the point of prime importance, namely the presumption that Parliament intends its legislation to be consistent with obligations that New Zealand has accepted under international law (para 44). Accordingly, there would have to be strong statutory language to defeat the entitlement of a person to challenge their detention.
Wednesday, November 17, 2004
Is returning a drug to its owner "supply"?
The tricky problem of whether a person who has been given only temporary custody of a drug has a purpose of supply when he returns that drug to its owner, has arisen again in New Zealand: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341. The conflicting cases are reviewed, and preference is given to the dissenting speech of Lord Goff in R v Maginnis [1987] 1 All ER 907 (HL). Miller J held that the temporary custodian does not supply the drug when returning it to its owner, because no additional rights or powers are thereby conferred than had existed before. The majority in Maginnis had held that it was not necessary that the supplier (the custodian) should give some power, that he himself had enjoyed, to the other person (the owner), and that therefore the custodian who returns the drug to its owner is supplying it. This was because the owner had no legal right to demand return of the illicit drug.
In end the issue will be resolved according to whichever approach to interpretation the court wishes to take (obviously! I mean the question is open). Some comparison may be made with the issue of the liability of a purchaser for conspiracy with the seller to supply himself with a drug: this has been held not to be a culpable conspiracy because the Act refers to supply "to another" in this context: R v Lang 13/10/98, CA222/98.
My answer: In the case of a temporary custodian, the possession of the drug is shared: the owner retains control, but not custody, and the custodian has custody and, depending on the circumstances (for example, if there is clearly a power to protect possession against third persons), a measure of control sufficient to amount to joint possession with the owner. The giving of custody back to the owner is less than a giving of possession, and for that reason the return of the drug would not be an act of supply.
See also my text, Mathias, Misuse of Drugs (Brookers Criminal Library, electronic edition) at paras 147 and 402.
In end the issue will be resolved according to whichever approach to interpretation the court wishes to take (obviously! I mean the question is open). Some comparison may be made with the issue of the liability of a purchaser for conspiracy with the seller to supply himself with a drug: this has been held not to be a culpable conspiracy because the Act refers to supply "to another" in this context: R v Lang 13/10/98, CA222/98.
My answer: In the case of a temporary custodian, the possession of the drug is shared: the owner retains control, but not custody, and the custodian has custody and, depending on the circumstances (for example, if there is clearly a power to protect possession against third persons), a measure of control sufficient to amount to joint possession with the owner. The giving of custody back to the owner is less than a giving of possession, and for that reason the return of the drug would not be an act of supply.
See also my text, Mathias, Misuse of Drugs (Brookers Criminal Library, electronic edition) at paras 147 and 402.
Monday, November 15, 2004
Miscarriage of justice and strength of the prosecution case
Miscarriages of justice may be thought of as having two roles to play in criminal procedure. The first is as a ground of appeal. The second is where a miscarriage of justice is not "substantial", and on this ground the appellate court may dismiss the appeal (called "applying the proviso").
Miscarriages of justice are usually "substantial". They arise from fundamental departures from proper procedure. Once the appellate court is satisfied that there has been a miscarriage of justice that amounts to a fundamental departure from proper procedure, it will not matter that the evidence in support of conviction was overwhelming. The conviction will be quashed. Usually a re-trial will be ordered.
These observations, which are an intentional simplification of the law, are illustrated by the High Court of Australia, in Subramaniam v R [2004] HCA 51 (10 November 2004). The Court cited Wilde v The Queen (1988) 164 CLR 365 at 373 (per Brennan, Dawson and Toohey JJ):
:
"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice ...
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted."
Reference was also made to TKWJ v R (2002) CLR 124, 147 [73], where McHugh J said:
"…in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict."
Miscarriages of justice are usually "substantial". They arise from fundamental departures from proper procedure. Once the appellate court is satisfied that there has been a miscarriage of justice that amounts to a fundamental departure from proper procedure, it will not matter that the evidence in support of conviction was overwhelming. The conviction will be quashed. Usually a re-trial will be ordered.
These observations, which are an intentional simplification of the law, are illustrated by the High Court of Australia, in Subramaniam v R [2004] HCA 51 (10 November 2004). The Court cited Wilde v The Queen (1988) 164 CLR 365 at 373 (per Brennan, Dawson and Toohey JJ):
:
"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice ...
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted."
Reference was also made to TKWJ v R (2002) CLR 124, 147 [73], where McHugh J said:
"…in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict."
Monday, November 08, 2004
Forcing the accused to have counsel
Mr Milosevic has to accept counsel at his trial.
This decision was upheld by the Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal" or "ICTY "): Milosevic v Prosecutor, 1 November 2004, Case no. IT-02-54-AR73.7.
Ironically, counsel assigned to Mr Milosevic filed the appeal against the order that Mr Milosevic had to accept counsel.
The right to defend one’s self is not absolute, as the Trial Chamber had recognised throughout the proceedings. Frequent adjournments of the proceedings have been necessary, depending on Mr Milosevic’s blood pressure. Although his health continued to decline, and delays lengthen, he was still able to make strenuous objections to the imposition of counsel on him.
What are the duties of counsel who are imposed on a reluctant client? The Trial Chamber issued a set of guidelines. These allowed for further participation in the conduct of his defence by Mr Milosevic, as the Appeals Chamber observed, "[h]owever, his participation would be secondary to that of Assigned Counsel and strictly contingent on the discretionary permission of the Trial Chamber in any given instance."
The Appeals Chamber noted that the law in many countries allows for restrictions on the right of an accused to represent himself, citing examples in England, Scotland, Canada, New Zealand, and Australia. But the issue here went further than that. At para 13 the Appeals Chamber held:
"It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds."
(para 14): "How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it."
In the circumstances, the decision of the Trial Chamber to appoint counsel for Mr Milosevic was upheld. However it did not uphold the particulars which spelt out the role he was entitled to have in relation to counsel. It was wrong (para 16) of the Trial Chamber to sharply restrict his ability to participate in the conduct of his defence. In particular, it was wrong to permit him to cross-examine witnesses only with leave of the Chamber, and then only after counsel had cross-examined. Restrictions on his right to represent himself had to be proportional to what was necessary to accomplish their objective:
"17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of "a sufficiently important objective," and must "impair the right... no more than is necessary to accomplish the objective." Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where "necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others," the United Nations Human Rights Committee has observed that any such restrictions "must conform to the principle of proportionality;... they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected." And the ICTY itself has been guided by a "general principle of proportionality" in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is "(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target."
The Trial Chamber had exercised its discretion wrongfully, in that it failed to establish a carefully calibrated set of procedures which reflected Mr Milosevic’s actual state of health. It concluded:
"19. In light of the foregoing discussion, the Appeals Chamber affirms the Trial Chamber’s imposition of defense counsel, but reverses its Order on Modalities. On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense. But this presumption is just that: a presumption. Under the current circumstances, where Milosevic is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health. The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.
"20. The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy. To a lay observer, who will see Milosevic playing the principal courtroom role at the hearings, the difference may well be imperceptible. If Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber."
This restores the proper relationship between counsel and accused: counsel is obliged to follow instructions in the conduct of the defence: R v McLoughlin [1985] 1 NZLR 106, (1984) 1 CRNZ 215 (CA). In the absence of a specific instruction, counsel may make tactical decisions in the interests of the accused: R v S [1998] 3 NZLR 392, also reported as R v Accused (CA467/97) (1998) 15 CRNZ 611 (CA), at p 395; p 614; R v Young 15/9/03, CA13/03. Of course, the way the defence case is conducted, by counsel or by the accused in person, may itself prejudice the court against the accused: R v Sharma 3/9/03, CA431/02.
This decision was upheld by the Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal" or "ICTY "): Milosevic v Prosecutor, 1 November 2004, Case no. IT-02-54-AR73.7.
Ironically, counsel assigned to Mr Milosevic filed the appeal against the order that Mr Milosevic had to accept counsel.
The right to defend one’s self is not absolute, as the Trial Chamber had recognised throughout the proceedings. Frequent adjournments of the proceedings have been necessary, depending on Mr Milosevic’s blood pressure. Although his health continued to decline, and delays lengthen, he was still able to make strenuous objections to the imposition of counsel on him.
What are the duties of counsel who are imposed on a reluctant client? The Trial Chamber issued a set of guidelines. These allowed for further participation in the conduct of his defence by Mr Milosevic, as the Appeals Chamber observed, "[h]owever, his participation would be secondary to that of Assigned Counsel and strictly contingent on the discretionary permission of the Trial Chamber in any given instance."
The Appeals Chamber noted that the law in many countries allows for restrictions on the right of an accused to represent himself, citing examples in England, Scotland, Canada, New Zealand, and Australia. But the issue here went further than that. At para 13 the Appeals Chamber held:
"It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds."
(para 14): "How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it."
In the circumstances, the decision of the Trial Chamber to appoint counsel for Mr Milosevic was upheld. However it did not uphold the particulars which spelt out the role he was entitled to have in relation to counsel. It was wrong (para 16) of the Trial Chamber to sharply restrict his ability to participate in the conduct of his defence. In particular, it was wrong to permit him to cross-examine witnesses only with leave of the Chamber, and then only after counsel had cross-examined. Restrictions on his right to represent himself had to be proportional to what was necessary to accomplish their objective:
"17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of "a sufficiently important objective," and must "impair the right... no more than is necessary to accomplish the objective." Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where "necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others," the United Nations Human Rights Committee has observed that any such restrictions "must conform to the principle of proportionality;... they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected." And the ICTY itself has been guided by a "general principle of proportionality" in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is "(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target."
The Trial Chamber had exercised its discretion wrongfully, in that it failed to establish a carefully calibrated set of procedures which reflected Mr Milosevic’s actual state of health. It concluded:
"19. In light of the foregoing discussion, the Appeals Chamber affirms the Trial Chamber’s imposition of defense counsel, but reverses its Order on Modalities. On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense. But this presumption is just that: a presumption. Under the current circumstances, where Milosevic is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health. The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.
"20. The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy. To a lay observer, who will see Milosevic playing the principal courtroom role at the hearings, the difference may well be imperceptible. If Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber."
This restores the proper relationship between counsel and accused: counsel is obliged to follow instructions in the conduct of the defence: R v McLoughlin [1985] 1 NZLR 106, (1984) 1 CRNZ 215 (CA). In the absence of a specific instruction, counsel may make tactical decisions in the interests of the accused: R v S [1998] 3 NZLR 392, also reported as R v Accused (CA467/97) (1998) 15 CRNZ 611 (CA), at p 395; p 614; R v Young 15/9/03, CA13/03. Of course, the way the defence case is conducted, by counsel or by the accused in person, may itself prejudice the court against the accused: R v Sharma 3/9/03, CA431/02.
Tuesday, November 02, 2004
Is infrared surveillance "search"?
Infrared surveillance may reveal patterns of heat emerging from a building. That in turn, when added to other information, may provide reasonable grounds for the issuing of a search warrant. Cannabis cultivation indoors can be discovered in this way. That happened in R v Tessling 2004 SCC 67 (29 October 2004). The Supreme Court of Canada held that, the present state of technology being insufficient to reveal exactly what was going on in the respondent’s house, he had no reasonable expectation of privacy in the circumstances of this case. Accordingly, there was no breach of his right to be free from unreasonable search.
The United States Supreme Court had held differently in Kylio v US 533 US 27 (2001). There, the majority held that the Government conducts a search of a home when it uses a device that is not in general public use to explore details of the home that would have previously been unknowable without physical intrusion. Further, a such a search was presumptively unreasonable without a warrant.
The point has not yet been decided in New Zealand, but some similar situations have been considered. (See Mathias, Misuse of Drugs, para 1405.) In R v Gardiner 30/6/97, Chisholm J, HC Christchurch T45/97 it was held that camera surveillance from outside premises, where views of the interior of the house were obtained, amounted to a search which, in the circumstances of this borderline case, was not unreasonable. It was noted that the police had good grounds to believe serious drug offending was occurring on the premises. Where police conduct was reasonable, it was not necessary to determine whether video surveillance of the back of a residential property by a camera outside the premises amounted to a search: R v Fraser [1997] 2 NZLR 442, (1997) 15 CRNZ 44 (CA). In that case the area filmed was readily visible to passers-by. Aerial surveillance from an aircraft flying at approximately 500 feet over farmland was not, on the facts, unreasonable in R v Peita (1999) 17 CRNZ 407 (CA), but the Court was careful to point out (at para 13) that "each case must be considered on its own facts, bearing in mind the privacy based nature of the right and its reasonable qualification by the public interest in crime detection".
The United States Supreme Court had held differently in Kylio v US 533 US 27 (2001). There, the majority held that the Government conducts a search of a home when it uses a device that is not in general public use to explore details of the home that would have previously been unknowable without physical intrusion. Further, a such a search was presumptively unreasonable without a warrant.
The point has not yet been decided in New Zealand, but some similar situations have been considered. (See Mathias, Misuse of Drugs, para 1405.) In R v Gardiner 30/6/97, Chisholm J, HC Christchurch T45/97 it was held that camera surveillance from outside premises, where views of the interior of the house were obtained, amounted to a search which, in the circumstances of this borderline case, was not unreasonable. It was noted that the police had good grounds to believe serious drug offending was occurring on the premises. Where police conduct was reasonable, it was not necessary to determine whether video surveillance of the back of a residential property by a camera outside the premises amounted to a search: R v Fraser [1997] 2 NZLR 442, (1997) 15 CRNZ 44 (CA). In that case the area filmed was readily visible to passers-by. Aerial surveillance from an aircraft flying at approximately 500 feet over farmland was not, on the facts, unreasonable in R v Peita (1999) 17 CRNZ 407 (CA), but the Court was careful to point out (at para 13) that "each case must be considered on its own facts, bearing in mind the privacy based nature of the right and its reasonable qualification by the public interest in crime detection".
Monday, November 01, 2004
Third party challenges to trial publicity
When may a third party obtain suppression of publication of the name of an accused? In Re S (a child) [2004] UKHL 47 (28 October 2004) the legal representative of a child sought to protect him from publicity that would arise from his mother’s trial on a charge of murdering his brother. The first notable feature of the case is that it illustrates the process of balancing competing rights. These rights, pursuant to the European Convention on Human Rights (ECHR), are the right to privacy (Art 8) and the right to freedom of information (Art 10).
The House of Lords was careful to emphasise that the circumstances of each case have to be considered. Lord Steyn delivered the speech with which the other Law Lords agreed. He set out the method in para 17:
"… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."
Following that approach, the prevailing right was held to be the Art 10 right to information, and the injunction sought against publication was refused.
The second notable aspect of this case is what it says about the common law inherent jurisdiction of the court to prohibit publication. It was held (para 23) that the jurisdiction to prevent publication is now derived from Convention rights, and as far as existence and scope of the power is concerned, the prior case law on inherent jurisdiction need no longer be considered. However, that case law remains relevant in illustrating the balancing process, which developed with acknowledgement of European jurisprudence even before October 2000 (when the Human Rights Act 1998[UK] – "the UK Act" - came into force).
We may well wonder whether this suggests, by analogy, anything for New Zealand law. The UK Act, s 3, requires domestic courts to give effect to the jurisprudence of the European Court of Human Rights so far as it is possible to do so. This is a clear indication that Strasbourg decisions, rather than the prior common law, should henceforth be the guide to the interpretation of Convention Rights.
By contrast, in New Zealand, NZBORA 1990 affirms and promotes the rights set out in it, and it affirms New Zealand’s commitment to the ICCPR. There is no provision requiring foreign court decisions to be followed. The right to freedom of information is contained in NZBORA, s 14, but the right to privacy, relied on in Re S (a child), is not. It is preserved at common law by virtue of s 28, which continues existing rights and freedoms notwithstanding their omission from NZBORA. Such inherent jurisdiction as there is, therefore, should remain alive, and indeed may draw upon the balancing process described in Re S (a child).
The House of Lords was careful to emphasise that the circumstances of each case have to be considered. Lord Steyn delivered the speech with which the other Law Lords agreed. He set out the method in para 17:
"… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."
Following that approach, the prevailing right was held to be the Art 10 right to information, and the injunction sought against publication was refused.
The second notable aspect of this case is what it says about the common law inherent jurisdiction of the court to prohibit publication. It was held (para 23) that the jurisdiction to prevent publication is now derived from Convention rights, and as far as existence and scope of the power is concerned, the prior case law on inherent jurisdiction need no longer be considered. However, that case law remains relevant in illustrating the balancing process, which developed with acknowledgement of European jurisprudence even before October 2000 (when the Human Rights Act 1998[UK] – "the UK Act" - came into force).
We may well wonder whether this suggests, by analogy, anything for New Zealand law. The UK Act, s 3, requires domestic courts to give effect to the jurisprudence of the European Court of Human Rights so far as it is possible to do so. This is a clear indication that Strasbourg decisions, rather than the prior common law, should henceforth be the guide to the interpretation of Convention Rights.
By contrast, in New Zealand, NZBORA 1990 affirms and promotes the rights set out in it, and it affirms New Zealand’s commitment to the ICCPR. There is no provision requiring foreign court decisions to be followed. The right to freedom of information is contained in NZBORA, s 14, but the right to privacy, relied on in Re S (a child), is not. It is preserved at common law by virtue of s 28, which continues existing rights and freedoms notwithstanding their omission from NZBORA. Such inherent jurisdiction as there is, therefore, should remain alive, and indeed may draw upon the balancing process described in Re S (a child).
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