The proviso

Vexed issues concerning the application of s 385(1) of the Crimes Act 1961 are on the way to being resolved as a result of the Supreme Court’s decision in Sungsuwan v R [2005] NZSC 57 (25 August 2005).

Issues have concerned the power of appellate courts to disallow appeals against conviction if, notwithstanding that there had been, for example (s 385(1)(c)) a miscarriage of justice at trial, that miscarriage was not "substantial": the proviso to s 385(1). When is a miscarriage of justice "substantial"?

In Sungsuwan the appeal was based on alleged misconduct of counsel at the trial, in failing to adduce evidence that, it was claimed, would have supported the defence, from two prosecution witnesses. The Supreme Court unanimously held that the verdict was safe and that there was no miscarriage of justice in the conviction. Three judgments were delivered: individually by Elias CJ and Tipping J, and jointly by Gault, Keith and Blanchard JJ (delivered by Gault J).

Elias CJ held that it would be unlikely to be appropriate to apply the proviso where a miscarriage of justice in terms of s 385(1)(c) is made out (para 6).

Tipping J was firmer on this point, holding that in cases coming within s 385(1)(a) and (c) the proviso was fused with the error, in the sense that there was no need to apply the proviso once the error had been established (para 113). At this point, Tipping J footnotes R v McI [1998] 1 NZLR 696 (CA), illustrating that there was a degree of "awkwardness" in the relation between para (c) and the proviso. In that case, delivering the majority judgment of himself and Keith J, Tipping J had not gone so far as to separate para (c) from the application of the proviso, and had held that before the proviso could be applied, the Court "must be sure that the jury would without doubt have convicted had the matters giving rise to the initial miscarriage of justice not been present" (p 712, line 22). There are two points here worth noting.

First, the attempt in McI to imagine what might have happened had the error not occurred, is not used as the test in Sangsuwan. Admittedly, it makes sense in some contexts, but it can be a distraction from the real point which is, given that the error had occurred, what was its effect? In Sungsuwan the question is put variously as "whether the verdict is unsafe" (Elias CJ at para 7), whether the error prejudiced the accused’s chance of an acquittal (Gault J at para 67), whether the error was likely to have had an effect on the trial outcome (Gault J at 69), whether there was a real risk that the error affected the trial outcome, whether there was a real concern for the safety of the verdict (Gault J at 70), whether the error prejudiced the accused’s prospects of acquittal or a lesser verdict (Tipping J at 101), whether the error led to a real risk of an unsafe verdict (Tipping J at 107, 108, 110, 111, 116), whether the accused was deprived of a reasonable possibility of a more favourable verdict (Tipping J at 115).

Second, the quoted passage from McI shows that there is a high standard on the prosecution to show that the miscarriage of justice was not "substantial", implying that tolerance of miscarriage of justice is low. This appears consistent with Sungsuwan, as the formulae referred to in the previous paragraph indicate. Tipping J, however, and perhaps unintentionally, highlighted an inconsistency by referring in Sungsuwan to "the high threshold" for showing that the trial had been unfair (para 115, footnote 45). Is unfairness tolerated to a greater extent than other forms of miscarriage of justice?

One thing made clear in Sungsuwan is the relevance of the effect of the error on the verdict in cases where the error has led to the trial being unfair. Trials may, of course, contain errors, yet not amount to unfair trials. Trial unfairness is a narrow concept, focused on the questions of bias and application of the law to the facts. Some erroneous directions on the law may not cause a jury, overall, to misapply the law to the facts; they may, in the particular context, be insignificant slips. There has been some difference in the cases (see especially, Howse, below)about whether an error has to affect the verdict before the trial can be said to have been unfair.

Elias CJ held that it was difficult to envisage that a verdict reached without fair trial could not amount to a miscarriage of justice and it would not be likely that the proviso could apply (para 6). Gault J referred to errors that deny the accused a fairly presented defence, saying that these may readily permit the Court to find prejudice and in extreme cases may not require the Court to ask whether they affected the verdict (para 65). Tipping J addressed the point more directly, saying that, rarely, things may have gone so wrong at trial that a miscarriage of justice occurred without there being any need to refer to whether there was a real risk of an unsafe verdict (para 111, 112, citing, inter alia, the judgment of himself, and Richardson P and Blanchard J in R v Griffin [2001] 3 NZLR 577, 587).

When judges say that things will happen only "rarely", they happen all the time. To say "rarely" is to indulge in wishful thinking. The point is that whenever the trial has been unfair, there is no need to enquire whether the unfairness caused the guilty verdict. No matter how correct the guilty verdict may be, it must not be arrived at by an unfair trial.

It makes no sense to put the necessary risk of trial unfairness, before a substantial miscarriage of justice is found on that ground, at any different from the necessary risk of an unsafe verdict. Difficulty can arise in deciding between the two grounds, as is illustrated by Howse v R [2005] UKPC 31 (19 July 2005), noted in this blog on 23 July 2005. There, the majority, in a case where it was not in issue that the admissible evidence supported the verdict, rather the issue was whether the trial had been unfair, applied the criterion of what course the trial would have taken if the errors had not been made. This was precisely the wrong test, as Sunsuwan shows the appropriate question is, given that the errors occurred, what part did they play. The correct approach would have been to ask, as did the minority in Howse, whether the errors could have played a part in the task of applying the law to the facts.

Readers of these blogs will be deeply satisfied to note that in our entry for 1 April 2005, commenting on Teeluck v State of Trinidad and Tobago, we asserted that loss of a fair trial was itself a substantial miscarriage of justice and did not require that the verdict be unsafe.

Impartiality and reason

On this, the first anniversary of the start of this blog, we consider a case that illustrates how not to get the court on your side.

In Mugesera v Canada (Minister of Citizenship and Immigration) [2005] SCC 39 (18 August 2005) proceedings filed in the Supreme Court of Canada alleged that it was a biased court, its composition having been manipulated by the (former) Minister as part of an extensive Jewish conspiracy aimed at ensuring Mugesera would be deported.

One new Judge had been appointed, and she recused herself from having anything to do with this appeal as soon as she saw it on the Court’s list of forthcoming work. Her husband was chair of the War Crimes Committee of the Canadian Jewish Congress, a party to these proceedings, and he had conveyed representations about the case to the Minister. Deportation was sought on the grounds that Mugesera wrongly had been allowed to stay in Canada, and that he was alleged to have committed, or had incited others to commit, murder, genocide, or crimes against humanity in Rwanda.

Mugesera sought a stay of proceedings on the grounds that the Minister had wrongly exercised his decision to seek deportation, by appealing an earlier court ruling, and that the Supreme Court of Canada was biased.

The Court, now sitting as 8 Judges, delivered a joint judgment, referring briefly to the law on stay of proceedings (para 12) and judicial impartiality (para 13), and held that the Minister had properly exercised his power to appeal (para 14). It then turned to the allegations that it was biased. It held that no reasonable person would think that, one Justice having recused herself, the ability of the other members of the Court to remain impartial would be impaired (para 15). It made important observations of the duties of counsel when preparing legal argument (para 16):

"Although it is not our usual practice, the content of the motion and of its allegations compels us to point out that it is unprofessional and unacceptable. It constitutes an unqualified and abusive attack on the integrity of the Judges of this Court. In an attempt to establish the alleged Jewish conspiracy and abuse of process against the Mugeseras, this pleading systematically referred to irresponsible innuendo. In addition, it refers to exhibits that are irrelevant and whose content is entirely inappropriate and misleading. Thus, it is obvious from the motion and its supporting exhibits that it was drafted with little concern for the rigour, restraint and respect for the facts required of all lawyers involved in judicial proceedings as an officer of the court. We are compelled to say that none of the allegations in the motion, no portion of the affidavits filed in support of the motion, and none of the documents to which these affidavits refer justifies the motion with respect to members of this Court or to the appellant’s decision to initiate and pursue this appeal. The only abuse of process from this motion lies at the feet of the respondent Mugesera and [his counsel] Mr. Bertrand."

The Court concluded with observations that reflect the difference between politics and law:

"17 Regretfully, we must also mention that the motion and the documents filed in support of it include anti Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system."

Purpose and policy

R v Lavender [2005] HCA 37 (4 August 2005) required the High Court of Australia to decide whether malice is an element of manslaughter in legislation dating back over 100 years. While the 7 judges all agreed in the result (that it is not), the case is interesting for its demonstration of how evenly balanced is the nature of statutory interpretation. Kirby J noted this point at para 69.

The only reason Kirby J agreed with the Court’s conclusion was that the consequences of the preferred interpretation were "less unsatisfactory" than the consequences of the rejected interpretation. This was the critical point for him, and it was decisive after an application of the standard approach to statutory interpretation, which involves an analysis of the context of the disputed provision, the legislative history, and an effort to discern the intention of the legislators. A background consideration, as a matter of last resort (para 93) is the rule that penal statutes should, in cases of ambiguity, be construed against the state.

The so-called purpose of the legislators is, on the standard approach, the touchstone. Indeed, it has (unambiguous) statutory force in the form of s 5(1) of the Interpretation Act 1999[NZ] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Privy Council referred to that in R v Karpavicius [2002] UKPC 59, (2002) 19 CRNZ 609, a case where the opposing arguments were linguistically finely balanced. The Privy Council made it plain that the purposive approach is to take precedence over the strict construction of penal statutes rule.

However, the courts depart from the purposive approach when that conflicts with human rights, giving effect to rights wherever doing so is consistent with the "underlying thrust" or is "with the grain" of the legislation (as opposed to being consistent with the legislative purpose): Ghaidan v Godin-Mendoza [2004] 3 WLR 113, [2004] UKHL 30 (21 June 2004). Plainly, there are some rather fine shades of meaning here.

In considering how best to approach the interpretation of old legislation, it is appropriate to bear in mind the words of Francis Lieber, Legal and Political Hermeneutics (enlarged ed, 1839), at 135, quoted by Richard Posner, The Problems of Jurisprudence (1990) at 298:

"Whether we rejoice in it or not, the world moves on, and no man can run against the movement of his time. Laws must be understood to mean something for the advantage of society; and if obsolete laws are not abolished by the proper authority, practical life itself, that is, the people, will and must abolish them, or alter them in their application …."

Posner argues that the term "interpretation" is so elastic that "it often is a fig leaf covering judicial discretion rather than a guide to decision making" (p 30).

If there is a lesson to be drawn from deconstructionism, it is that the meaning of a text is ascertained by its reader, and is not pre-determined by its author. See JM Balkin, "Deconstructive Practice and Legal Theory" at http://www.yale.edu/lawweb/jbalkin/articles/decprac1.htm

Silence as evidence

When, if ever, is the accused’s silence at trial evidence of his guilt? The conventional view is that silence itself is not evidence of anything; it is just an absence of evidence. The significance of this absence of evidence is, conventionally, that it may strengthen the weight to be given to prosecution evidence. Adams on Criminal Law puts it this way, at CA366.02:

"Silence cannot be used to fill a gap in the evidence presented by the prosecution, or relied on to establish guilt so as to warrant the jury omitting to scrutinise all the evidence before it. However, the Judge may direct the jury that in determining the weight to be given to evidence tending to prove guilt it may accord greater weight to such evidence by an inference drawn from the absence of explanation or answer from the accused: R v Hines (No 3) (1998) 16 CRNZ 236 (CA)."

On the other hand, in R v Becouarn [2005] UKHL 55 (28 July 2005) the House of Lords approved a direction to the jury that included the following:

" … if, and I stress the word, if, if you think in all the circumstances it is right and fair to do so you are entitled, when deciding whether the defendant is guilty of the offences with which he is charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms that means that you may hold his failure to give evidence against him."

Permitting "such inferences as you think proper" potentially allows the jury to use silence as if it were positive evidence of guilt. This potential was recognised by Lord Carswell (with whom the others agreed) at para 21, where reference was made to a study showing that people tend to treat credibility evidence (in the example the Court was considering, this was evidence of the accused’s convictions) as if it were propensity evidence:

" … It is, however, a matter of notoriety that juries in practice are likely to regard them as indicators of propensity and so supportive of guilt. That piece of folk knowledge received some verification from a study commissioned by the Home Office and based on research carried out on the effect of bad character evidence on mock jurors (Sally Lloyd-Bostock, The Effects on Juries of Hearing about the Defendant's Previous Criminal Record: a Simulation Study [2000] Crim LR 734)."

In Becouarn the accused at trial had attacked the character of prosecution witnesses in a way that, inevitably, would have caused the judge to permit the prosecution to cross-examine him on his own previous convictions, if he gave evidence. By not giving evidence an accused can, in these circumstances, prevent the jury learning of his record. The accused did not give evidence, and the judge directed the jury on the significance of his silence at trial, and included the comment quoted above.

Jurisdictions differ in what is regarded as appropriate judicial comment on the accused’s silence at trial. As Adams observes, CA366.02:

"It would appear that the New Zealand position to some extent represents a mid-point between English practice where stronger comment may be considered appropriate (see R v Martinez-Tobon [1994] 2 All ER 90 (CA)) and the more restrictive Australian rule, as to which see Azzopardi v R (2001) 179 ALR 349; (2001) 119 A Crim R 8 (HCA)."

The Evidence Bill does not address the contents of judicial comment, merely providing (clause 29) that "In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial."

Fundamental difficulties

New Zealand has not been served well by the Privy Council in the last criminal appeal it will hear from this country. It is alarming that some of the most senior judges differ over recognising the fundamental attributes of a fair trial. In Howse v R [2005] UKPC 31 (19 July 2005) the Judicial Committee consisted of three Law Lords and two retired Lords Justice of Appeal, the Rt Hon Sir Swinton Thomas, and the Rt Hon Sir Andrew Leggatt. The Court split 3-2. Lord Rodger, the most senior of these Law Lords, dissented. The majority Law Lords were Hutton and Carswell. The other members were also divided, Sir Swinton Thomas being with the majority. The absence of Lords Bingham, Nicholls and Steyn from this Board could be said to significantly reduce the status of the case.

Fairness is a broad and not always easy to define concept. But lawyers like to attack such concepts and break them down. So, there are, I suggest, two kinds of trial unfairness. The first is procedural unfairness, and this may or may not give rise to the second kind, substantive unfairness. Alternatively, substantive unfairness may exist without there also being procedural unfairness. Either kind of unfairness amounts to a substantial miscarriage of justice, requiring the quashing of conviction and (usually) an order for a new trial.

Procedural unfairness occurs where the accused is deprived of the right to have the facts determined by an unbiased tribunal that applies the law correctly. By “unbiased” I mean to include juries that are not impartial because of some misdirection on the law by the judge. This might be, to give just a few examples, a misdirection on the use of propensity evidence, on the burden of proof, on the defendant’s right to silence, or on the need for caution in relation to particular evidence. Such errors could affect a juror’s assessment of the evidence against the defendant. These are not in the category of errors called substantive because they do not involve the ingredients of the alleged offence or, as one might say, the substance of the charge. More obvious procedural errors can occur before a trial, for example where there has been a failure of disclosure by the prosecutor, or where  an impropriety in the obtaining of evidence was such that the evidence was wrongly admitted at trial. There may, nevertheless, be some errors that do not give rise to unfairness if it can properly be said that they were of no consequence in the overall context of the trial. The critical issue in Howse was whether the errors that occurred were of no consequence in this sense.

Substantive unfairness occurs where the accused has, through errors at trial, or through the unavailability of evidence that subsequently comes to hand, been improperly deprived of a fair chance of an acquittal. For example, the jury may have been wrongly directed, or not directed at all, on the elements of the alleged offence, or on the burden and standard of proof, or on a defence. 

It would be wrong to confuse the question of fairness of either kind with the question of guilt. But in Howse the Privy Council majority did just that.

The majority in Howse thought that, because the properly admissible evidence of guilt was overwhelming, there was no substantive unfairness. They also held that there was no procedural unfairness because the errors were inconsequential, and therefore the trial was fair.

The minority in Howse carefully analysed the significance of the improperly admitted evidence in the context of the trial. The Crown had decided to run its case relying on motive to establish that the accused, and not his partner, was the murderer. The Crown had obtained a pre-trial ruling that evidence of motive was admissible, and, bearing in mind the importance of that evidence for the prosecution case, it was impossible (said the minority, para 68) for the Crown to now argue that the evidence was insignificant. The trial judge had referred to it as being significant when she summed up the case to the jury (para 65). In fact, the Court of Appeal held that the evidence of motive was inadmissible, and this finding was not challenged before the Privy Council. The minority held that the trial had been unfair because the accusation of motive, central to the Crown’s case, was not supported by any admissible evidence.

The majority reasoned that, if the errors at trial had not occurred, the Crown’s case was so compelling that a conviction was inevitable, therefore the trial had been fair. In the context of the case, said the majority, the errors were not radical or fundamental enough to deprive the accused of a proper trial (para 40).

A potential difficulty exists in the view of all members of the Board (paras 37 and 54) that a high threshold must be crossed before a finding of trial unfairness can be made. This, it is suggested, should not be taken to mean that a reasonably high level of unfairness will be tolerated before it amounts to a substantial miscarriage of justice. Rather, it should be taken to mean that the courts will scrutinise claims of unfairness very carefully before accepting that unfairness occurred.

Howse is a lesson in the dangers of emphasising substantive fairness at the expense of procedural fairness. The majority made the mistake of applying, to the issue of whether there was procedural unfairness, the criterion for substantive unfairness. There may always be a dispute over whether Mr Howse received "the kind of trial which the law expects that an accused should have" (para 47).

Proof and risks

Is there a difference, in terms of whether a standard of proof is applicable, between deciding whether a "fact" is proved, and deciding whether a "risk" exists?

One view is that a reasonable doubt may exist about the existence of a fact, and about the existence of a risk. Another view is that, while facts may be amenable to reasonable doubt, risks are matters of judgment to which application of a standard of proof is inappropriate.

An example of a "risk" is the risk that a prisoner will be a danger to the safety of the public if released on parole. Another example is the risk that a decision in the course of a trial, such as one concerning the admissibility of evidence, will result in unfairness to the accused. Is the risk of trial unfairness a matter for standard of proof?

Trial unfairness can arise if evidence is wrongly admitted. In particular, evidence that has been obtained unfairly may, if ruled admissible, result in an unfair trial. The approach taken in R v Noble 7/4/87, Eichelbaum J (as he then was), HC Wellington T4/86 was that where the accused establishes an evidential foundation for his claim that the evidence was unfairly obtained, the burden of proof shifts to the prosecution to prove beyond reasonable doubt that it was not unfairly obtained.

In contrast, there are some dicta to the effect that questions of admissibility are matters of judgment not amenable to any particular standard of proof (R v Marsh (1991) 7 CRNZ 465 (CA), R v Williams (1990) 7 CRNZ 378 (CA)), but these should not be taken as governing the approach to be taken where a factual foundation for admissibility is required. In Marsh the Court quoted its dictum on this point in Williams, and it is clear that the point was that what amounts to unfairness is a matter of judgment. In other words, when the Court has determined the facts, it must apply judgment to decide whether they amount to unfairness. Notwithstanding this, a reasonable doubt about fairness should lead to exclusion of evidence, as occurred in R v Te Huia 8/9/97, Gendall J, HC Napier T17/97, discussed in Mathias, "Unfairly observed rights" [1998] NZLJ 21. The Privy Council has required fairness to be proved beyond reasonable doubt, after considering and rejecting the (now obsolete) New Zealand prima facie exclusion rule: Mohammed v The State [1999] 2 AC 111 (PC): the prosecution must prove beyond reasonable doubt that there was no breach of rights, and (p 124) a breach of the right to a fair trial must inevitably result in the conviction being quashed. Consequently, it would be inappropriate to rely on the notion that fairness is a matter of judgment not amenable to a standard of proof.

The House of Lords has recently expressed views on whether a risk can be amenable to a standard of proof: Re McClean [2005] UKHL 46 (7 July 2005). On this point the relevant issue was whether a standard of proof applied to the judgment of the risk posed by a prisoner to the safety of the community. Lord Bingham, para 26, referred to cases in which doubts had been expressed about whether a standard of proof applied to the evaluation of a risk, but he concluded, para 29, that

" … In the last resort, any reasonable doubt which the Commissioners properly entertain whether, if released immediately, a prisoner would be a danger to the public must be resolved against the prisoner … "

This indicates that, when after considering the evidence, the tribunal is unsure, a standard of proof then is applicable to enable a decision to be made.

Lord Brown, agreeing, made the same point, para 103:

"…But even accepting that just occasionally the Commissioners may be genuinely unsure if such a prisoner can safely be released—the only situation in which the burden of proof assumes relevance—I for my part would unhesitatingly conclude that he should remain in prison rather than benefit from the accelerated release scheme…."

This is preferable to endeavouring to sustain fallacious distinctions between conclusions of "fact" and evaluations of "risk". Both, after all, are just conclusions, and both can be challenged by the question "how sure are you of that?"

"Starting points" for sentences

The starting point for a sentence is "the true point of comparison with other offending before individual aggravating and mitigating factors are taken into account. Fixing the starting point is the mechanism for seeking consistency in sentencing": R v Mako 23/3/00, CA446/99. The assessment of starting points is not capable of exact arithmetical gradation or scaling: R v Norfolk 27/8/01, CA195/01. The cases reveal two approaches to starting points, as was noted in R v Hooker 30/8/01, CA154/01, at para 7:

"…it is perhaps unfortunate that the term ‘starting point’ is used in judgments in two different ways. Sometimes the term is used to reflect the opening position before a consideration of aggravating and mitigating circumstances. At other times the term is used to reflect the position before mitigating circumstances are taken into account; that is, aggravating features are built into the so-called starting point."

In R v Gemmell 23/10/01, CA267/01 it was held that the starting point should reflect all aspects of the case except the plea (citing R v Ataria 15/12/98, CA318/98).

There seems to be a sort of halfway house approach in practice, according to which the starting point is measured by taking into account aggravating features. It is respectfully suggested that this is the preferable method. An interesting illustration is R v Raheke 8/7/04, France J, HC Napier S8/2004 (above, para 1808), where although the Crown submitted that the starting point should be established before aggravating features were added (para 9 of the sentencing remarks), France J took the aggravating features into account in setting the starting point (paras 18 and 20 of the sentencing remarks).

This logically sensible approach was taken while at the same time her Honour was guided by the approach in R v Bradley and Galvin 20/2/04, Williams J, HC Rotorua CRI-2003-063-8523. However in that case Williams J had set a starting point, then (apparently) added aggravating features (para 22 of his Honour’s remarks). In referring to the desirability of consistency, in following the approach of Williams J, France J found guidance in R v Wallace and Christie [1999] 3 NZLR 159, (1999) 16 CRNZ 443 (CA) in setting the starting point.

Thus although both Judges found assistance in Wallace in setting the starting point, their approaches to the relevance of aggravating features appears to differ. In Wallace the Court did not specify which method was to be preferred, but at para 30 of the judgment, after setting out summaries of relevant cases, the Court referred to starting points before allowance was made for mitigating factors. Again, in para 36, the Court referred to either method producing an appropriate result in relation to Wallace, whose appeal was dismissed. However, in R v Arthur 17/3/05, CA382/04, at para 26, the approach was said to be to set the starting point before taking into account aggravating features (such as the existence of relevant previous convictions) and mitigating features (such as a plea of guilty).

The above discussion of starting points is predicated on the meaning of "mitigating factors" as factors that are not connected with the offending but that may properly be taken into account as diminishing the final sentence. This is the meaning of "mitigating factors" used by DA Thomas in his analysis of English sentencing. A different usage has been employed by the Court of Appeal, whereby "mitigating factors" include matters that concern the commission of the offence, as well as those that concern the circumstances of the offender: R v Taueki 30/6/05, CA384/04, a decision of the Full Court giving guidelines for sentencing for violent offending involving grievous bodily harm. Accordingly, the "starting point" may now be understood as the sentence appropriate when aggravating and mitigating circumstances relating to the offending are taken into account, but excluding aggravating and mitigating features personal to the offender. The starting point is the sentence, determined in this way, for an adult offender after a defended trial: Taueki para 8.

Fairness to Prisoners

Parole Board decisions differ from those of trial courts: the former give paramount consideration to the safety of the community (Parole Act 2002[NZ], s 7(1)), while the latter acknowledge the fundamental requirement of fairness to the accused. To what extent, then, must Parole Board hearings be fair to the prisoner?

This issue has been considered by the House of Lords in Roberts v Parole Board [2005] UKHL 45 (7 July 2005), where the questions were whether the Parole Board could withold information from the prisoner and his legal representative and instead use the specially appointed advocate (SAA) procedure. The same questions could arise in New Zealand, as s 13(3) and (5) of the Parole Act 2002[NZ] authorise the non-disclosure of information to the prisoner in the interests of the safety of any person, and the Board "may" (not must) disclose that to the prisoner’s counsel.

In Roberts the House of Lords split 3-2. Lord Woolf (the Chief Justice) and Lords Rodger and Carswell held that in principle (the case could not yet be determined on its facts) the SAA procedure could be used in rare cases where the public interest required non-disclosure, but (per Lord Woolf, para 83, point vii):

"What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the Board using a procedure that involves significant injustice to the prisoner. If there has been, the decision should be quashed. The procedure may not be ideal procedure but it may be the only or the best method of balancing the triangulation of interests involved in the very small number of cases where a SAA may be instructed."

This may be criticised for vagueness over what is "significant" injustice to the prisoner. Lord Carswell, concurring, put the conclusion in these terms (para 144):

"I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts. I would agree that the SAA procedure should be used only in rare and exceptional cases and, as Lord Bingham of Cornhill said in R v H [2004] 2 AC 134 at para 22, as a course of last and never first resort."

Again, what is "sufficiently" fair?

Lord Rodger, also in the majority, highlighted the difficulties that arise when primacy is given to the interests of the prisoner (para 111):

"One solution would be to disclose the information to the prisoner's representative and, if possible, to require the informant to give evidence, even though this would risk putting his life or health in jeopardy. That solution would be, to say the least, unattractive and might well give rise to significant issues under articles 2 and 3 of the European Convention. The other solution would be for the Board to exclude from their consideration any evidence which could not be safely disclosed to the prisoner or his representative. In other words, the Board should close their eyes to evidence, even though it would be relevant to the decision which Parliament has charged them to take for the protection of the public. That solution too would be - again, to say the least - unattractive and, moreover, hard to reconcile with the Board's statutory duty not to direct a prisoner's release on licence unless they are satisfied that it is no longer in the interests of the public that he should be confined."

Unfortunatley this latter point undermines Lord Woolf’s view that (para 80):

"The Board can refuse to pay any attention to the information that the individual could provide. This would mean, however, that the Board could be in breach of its express statutory duty. So it is my view that the information should only be disregarded if there is no other way in which the prisoner's fundamental right to be treated fairly can be protected."

Lord Woolf’s approach is an attempt to apply the procedure taken to ensure fairness to the accused in criminal trials where the prosecution seeks to refuse full disclosure, set out in R v H (above), to proceedings of the Parole Board. In trials, the ultimate issue is the adequacy of the tendered proof of guilt, and if the prosecution considers that disclosure ordered by the court in the interests of trial fairness should not be made because of the need to protect an informant, then it can elect not to proceed with its case. But in proceedings before the Parole Board, the safety of the community is the dominant interest. Discontinuance of the proceedings is not a solution because the prisoner’s case would not be heard. The dilemma is that a serious risk to a member of the public might be grounds for non-disclosure to the prisoner, and for ignoring the information about that risk in the interests of "fairness".

The minority judges, Lords Bingham and Steyn, placed primacy on the need for fairness to the prisoner. The SAA procedure was no substitute for full disclosure. Lord Steyn (para 88) summarised it:

"Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a fundamental matter: the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only."

He went so far as to quote from Kafka’s "The Trial" (para 95), in a passage that was obliquely (and, some might say, rather bitchily) criticised by Lord Rodger (para 110) as an inapposite reference that tended to trivialise a difficult problem.

It may be that the real difference between the majority and the minority in Roberts is on how abstract the issue before the House was. All judges recognised that the circumstances of each individual case have to be considered in deciding whether the adopted course was fair to the prisoner. The minority may have attempted to pre-emptively reject the SAA procedure before being able to see whether it worked in this case.

Ordinary self-control

Six days before Timoti v R was decided, applying the Rongonui interpretation of provocation, the Privy Council addressed the English law of provocation in Attorney-General for Jersey v Holley [2005] UKPC 23 (15 June 2005). Because of the need to sort out inconsistent decisions of the House of Lords and the Privy Council, the Board in Holley consisted of 9 members. It turned out that three of them, all with considerable criminal law experience, dissented. In the result, the majority took the same approach as had the New Zealand Court of Appeal (by a majority) in R v Rongonui [2000] 2 NZLR 385. Accordingly, the standard of self-control is fixed at that which the ordinary person has, and the level of provocation is to be assessed taking into account such matters as are relevant including, where appropriate, features peculiar to the defendant.

In Holley the Privy Council was dealing with law that was the same as that which applies in England. Plainly, the intention was to overrule (so to speak) the House of Lords majority decision in R v Smith (Morgan) [2001] 1 AC 146.

There is an air of unreality about distinguishing between the effect of provocative acts or words on the accused’s actual self-control, on the one hand, and the effect of those acts or words on the level of provocation he experienced, on the other. While the conceptual model applied in the Holley and Rongonui cases has a pleasing elegance, its use must be reviewed in the light of changes in the law concerning homicide. When the sentence for murder was mandatory life imprisonment, whereas life imprisonment was the maximum for manslaughter, there was some point in having the "partial defence" of provocation. Now, with the sentence for murder being a maximum of life imprisonment, provocation could be better placed as a matter relevant to sentencing. However, one should acknowledge that this is to ignore the symbolic significance of the terminology describing the offence. If provocation was limited to being a matter relevant to sentence for murder or manslaughter it could be understood in a more flexible sense than it is as a partial defence to murder.

Update: the partial defence of provocation has been repealed in New Zealand, from 8 December 2009.

June hiatus

Your blogger is on vacation. Back in July.