Public policy exclusion of evidence is sometimes still spoken of by courts as if it was a means of protecting the accused’s right to a fair trial. This was done yesterday by the Privy Council in Williams v R (Jamaica) [2006] UKPC 21 (25 April 2006). A statement had been obtained from the accused when he was aged 12, in breach of the procedures laid down for the interviewing of young suspects (para 27). The Board concluded, at para 28:
"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."
While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".
My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.
One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.
What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.
There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.
Wednesday, April 26, 2006
Seeing and believing
Eyewitness identification evidence may need to be treated with some circumspection, and juries are usually given a direction on the special need for caution before relying on such evidence. In some jurisdictions, these warnings are required by statute, although, as is the case in New Zealand, the points required to be covered are not spelt out in great detail. The common law antecedent of these directions is known as the Turnbull direction, originating in the English Court of Appeal’s decision R v Turnbull [1977] QB 224.
In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:
(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):
"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).
(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).
(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).
(5) The police should avoid confronting the eyewitness with the suspect (para 25).
There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:
"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."
This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.
In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.
The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.
In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.
The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.
In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:
(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):
"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).
(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).
(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).
(5) The police should avoid confronting the eyewitness with the suspect (para 25).
There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:
"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."
This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.
In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.
The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.
In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.
The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.
Tuesday, April 04, 2006
Balancing "cogency" of wrongfully obtained evidence
Simmons v R (Bahamas) [2006] UKPC 19 (3 April 2006) gives us an opportunity to highlight the distinction between "fairness" when that term is used in the context of the exercise of the public policy discretion to exclude evidence, and "fairness" in the separate sense of trial fairness for the accused.
The two appellants were convicted of murder. Included in the evidence against them were statements they had made to the police. These statements, referred to as confessions, although they were partly exculpatory (and, one accused who gave evidence adopted what he had said to the police), were obtained in breach of the appellants’ constitutional right to be informed of the availability of legal advice before they spoke to the police.
Breach of that right gives rise to a judicial balancing exercise to determine whether to admit or exclude the statement. This balancing exercise is a public policy discretion, having nothing to do with the fairness of the trial. It arises because of the conflict between, on the one hand, the public’s right to have suspects prosecuted and offenders brought to justice, and, on the other hand, the public’s right to have officials comply with the law in the investigation of offences. The only sanction that courts can impose on officials who act in breach of the law in this context is to exclude evidence that they obtain thereby.
Sometimes, in carrying out this balancing exercise, judges say that the cogency of the evidence is a factor strongly favouring its admission. An important observation on this point was made by the Privy Council in this case, para 26:
"The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion."
However, in New Zealand the cogency of the evidence is routinely taken into account in this balancing exercise: R v Shaheed [2002] 2 NZLR 377 (CA), especially at paras 151-152. At para 151 the joint judgment (Richardson P, Blanchard and Tipping JJ) states: "A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict." That, with respect, needs to be read with some caution. A safe verdict is not a cure-all for trial unfairness. That point was made strongly by Lord Steyn (Sir Swinton Thomas concurring) in Ebanks v R (Cayman Is) [2006] UKPC 16 (27 March 2006), blogged 28.3.06, at para 40. The Supreme Court acknowledged the same point in Sungsuwan v R [2005] NZSC 57 (25 August 2005), blogged 26.8.05, per Elias CJ at para 6 (putting as alternatives trial unfairness and unsafe verdicts), Tipping J at 112 (lack of a fair trial is itself a miscarriage of justice without the need to consider its effect on the verdict).
If I may, I should add that "cogency", which means being convincing or compelling, is always a matter for the jury. It is usually called the "weight" that is to be given to the evidence. Weight is separate from the question of admissibility, except on occasions where it is possible for a judge to conclude that no reasonable jury could give the evidence any weight. The Privy Council is correct to see no reason to link cogency to admissibility. However, this is not the end of the matter. What is being considered is not the admissibility of the evidence, but rather whether, as admissible evidence, it should be excluded because of the objectionable way in which it was obtained. The question whether convincing or compelling admissible evidence should be excluded is, appropriately, part of the weighing of the public interest in bringing suspects to justice. There is, though, a difficulty: the cogency of the evidence is also appropriately considered on the other side of the balance, where weight has to be given to the public interest in prevention of such abuse of process as would bring disrepute to the administration of justice. One might properly object to the inclusion of "cogency" in the weighing process on the basis that it falls on both sides of the scales.
That aside, having said that the exclusion of evidence to prevent the trial being unfair to the accused is separate from the public policy discretion, I should now make the distinction clear. A fair trial for the accused is one where the law is accurately applied and the facts are determined without bias. There may be flow-on effects of a wrongful exercise of the public policy discretion, in the sense that the trial may not be one where the law has been accurately applied. The question, in terms of trial fairness, of the significance of the error, will be determined, not by the strength of the other evidence against the accused, but by whether the error put the accused at a disadvantage in the trial. I made this point in the blog entry on 29 March 2006, discussing Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006).
Simmons is an example of the error in applying the public policy discretion not affecting the fairness of the trial. The statements in issue were partly exculpatory and the accused who gave evidence adopted what he had said. The judgment does, however, focus on the strength of the other evidence of guilt, concluding, para 31, that acquittals would have defied all reason. The relevance of this point is that the proviso could be applied: the error in admitting the statements did not amount to a "substantial miscarriage of justice." The error caused neither trial unfairness, nor the loss of a real chance of acquittal.
The two appellants were convicted of murder. Included in the evidence against them were statements they had made to the police. These statements, referred to as confessions, although they were partly exculpatory (and, one accused who gave evidence adopted what he had said to the police), were obtained in breach of the appellants’ constitutional right to be informed of the availability of legal advice before they spoke to the police.
Breach of that right gives rise to a judicial balancing exercise to determine whether to admit or exclude the statement. This balancing exercise is a public policy discretion, having nothing to do with the fairness of the trial. It arises because of the conflict between, on the one hand, the public’s right to have suspects prosecuted and offenders brought to justice, and, on the other hand, the public’s right to have officials comply with the law in the investigation of offences. The only sanction that courts can impose on officials who act in breach of the law in this context is to exclude evidence that they obtain thereby.
Sometimes, in carrying out this balancing exercise, judges say that the cogency of the evidence is a factor strongly favouring its admission. An important observation on this point was made by the Privy Council in this case, para 26:
"The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion."
However, in New Zealand the cogency of the evidence is routinely taken into account in this balancing exercise: R v Shaheed [2002] 2 NZLR 377 (CA), especially at paras 151-152. At para 151 the joint judgment (Richardson P, Blanchard and Tipping JJ) states: "A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict." That, with respect, needs to be read with some caution. A safe verdict is not a cure-all for trial unfairness. That point was made strongly by Lord Steyn (Sir Swinton Thomas concurring) in Ebanks v R (Cayman Is) [2006] UKPC 16 (27 March 2006), blogged 28.3.06, at para 40. The Supreme Court acknowledged the same point in Sungsuwan v R [2005] NZSC 57 (25 August 2005), blogged 26.8.05, per Elias CJ at para 6 (putting as alternatives trial unfairness and unsafe verdicts), Tipping J at 112 (lack of a fair trial is itself a miscarriage of justice without the need to consider its effect on the verdict).
If I may, I should add that "cogency", which means being convincing or compelling, is always a matter for the jury. It is usually called the "weight" that is to be given to the evidence. Weight is separate from the question of admissibility, except on occasions where it is possible for a judge to conclude that no reasonable jury could give the evidence any weight. The Privy Council is correct to see no reason to link cogency to admissibility. However, this is not the end of the matter. What is being considered is not the admissibility of the evidence, but rather whether, as admissible evidence, it should be excluded because of the objectionable way in which it was obtained. The question whether convincing or compelling admissible evidence should be excluded is, appropriately, part of the weighing of the public interest in bringing suspects to justice. There is, though, a difficulty: the cogency of the evidence is also appropriately considered on the other side of the balance, where weight has to be given to the public interest in prevention of such abuse of process as would bring disrepute to the administration of justice. One might properly object to the inclusion of "cogency" in the weighing process on the basis that it falls on both sides of the scales.
That aside, having said that the exclusion of evidence to prevent the trial being unfair to the accused is separate from the public policy discretion, I should now make the distinction clear. A fair trial for the accused is one where the law is accurately applied and the facts are determined without bias. There may be flow-on effects of a wrongful exercise of the public policy discretion, in the sense that the trial may not be one where the law has been accurately applied. The question, in terms of trial fairness, of the significance of the error, will be determined, not by the strength of the other evidence against the accused, but by whether the error put the accused at a disadvantage in the trial. I made this point in the blog entry on 29 March 2006, discussing Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006).
Simmons is an example of the error in applying the public policy discretion not affecting the fairness of the trial. The statements in issue were partly exculpatory and the accused who gave evidence adopted what he had said. The judgment does, however, focus on the strength of the other evidence of guilt, concluding, para 31, that acquittals would have defied all reason. The relevance of this point is that the proviso could be applied: the error in admitting the statements did not amount to a "substantial miscarriage of justice." The error caused neither trial unfairness, nor the loss of a real chance of acquittal.
Monday, April 03, 2006
You may not get what you want ...
The crime of attempting to commit a crime has come under scrutiny in L v R [2006] NZSC 18 (30 March 2006), which concerned the state of mind required for liability.
The facts of L were extraordinary. The charge, faced by L, a 49 year old woman, was attempting to sexually violate a 15 year old male. She tried to cause his (presumably erect) penis to penetrate her vagina, being reckless as to whether or not he consented to that. In the circumstances, it seems to have been the case that his lack of consent should have been apparent to her.
The legal question was whether, to be liable for the attempt, L had to intend that he not consent, or was it sufficient that she merely be reckless (ie that she knowingly took a risk) as to his lack of consent. The question arose because the crime of attempting to commit a crime requires the accused to have an intent to commit that crime.
Plainly, L intended that the penis enter her own vagina, and she did acts in an effort to bring that about. Was that intent sufficient? Or, in addition, did she need to be reckless about the male’s lack of consent? Or, did she need to intend both penetration and his lack of consent?
There has been some division among the jurists on this general issue. As Simester and Brookbanks, Principles of Criminal Law, point out at para 6.1.1, the decision is one of public policy. Criminalising attempts is often justified because of the danger posed to society by a person who sets out to cause harm. That is, one whose intention is dangerous, albeit that his (here, her) acts may not constitute actual harm. This sort of deliberation suggests that intention should be given a narrow meaning, so as to exclude people who are reckless about circumstances such as consent. But, that narrow meaning would create anomalies (as has been pointed out by Professor Ashworth, cited ibid): imagine two men who set out to have sexual intercourse with two women. Both men are reckless as to consent, and neither woman consents. One man succeeds in penetration, and is guilty of rape. The other fails to penetrate, and, under this narrow view, is guilty of neither rape nor attempt to rape.
In L the Supreme Court held that recklessness (in the sense of absence of a reasonable belief in consent) as to circumstances is sufficient for liability for the attempt: what has to be intended here is the act of penetration.
All well and good. We are left with a lingering image of the facts of the case. In future, will people charged with sexual violation claim they did not consent, and that the other person should be charged?
The facts of L were extraordinary. The charge, faced by L, a 49 year old woman, was attempting to sexually violate a 15 year old male. She tried to cause his (presumably erect) penis to penetrate her vagina, being reckless as to whether or not he consented to that. In the circumstances, it seems to have been the case that his lack of consent should have been apparent to her.
The legal question was whether, to be liable for the attempt, L had to intend that he not consent, or was it sufficient that she merely be reckless (ie that she knowingly took a risk) as to his lack of consent. The question arose because the crime of attempting to commit a crime requires the accused to have an intent to commit that crime.
Plainly, L intended that the penis enter her own vagina, and she did acts in an effort to bring that about. Was that intent sufficient? Or, in addition, did she need to be reckless about the male’s lack of consent? Or, did she need to intend both penetration and his lack of consent?
There has been some division among the jurists on this general issue. As Simester and Brookbanks, Principles of Criminal Law, point out at para 6.1.1, the decision is one of public policy. Criminalising attempts is often justified because of the danger posed to society by a person who sets out to cause harm. That is, one whose intention is dangerous, albeit that his (here, her) acts may not constitute actual harm. This sort of deliberation suggests that intention should be given a narrow meaning, so as to exclude people who are reckless about circumstances such as consent. But, that narrow meaning would create anomalies (as has been pointed out by Professor Ashworth, cited ibid): imagine two men who set out to have sexual intercourse with two women. Both men are reckless as to consent, and neither woman consents. One man succeeds in penetration, and is guilty of rape. The other fails to penetrate, and, under this narrow view, is guilty of neither rape nor attempt to rape.
In L the Supreme Court held that recklessness (in the sense of absence of a reasonable belief in consent) as to circumstances is sufficient for liability for the attempt: what has to be intended here is the act of penetration.
All well and good. We are left with a lingering image of the facts of the case. In future, will people charged with sexual violation claim they did not consent, and that the other person should be charged?
Wednesday, March 29, 2006
Good character again
Once again, see Index, the topic of the significance of absence of a good character direction has concerned the Privy Council: Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006). Their Lordships indicated that a forthcoming case also concerns this subject: Bhola v The State (Trinidad and Tobago) [2006].
Gilbert makes the point that there is a duty on counsel for the defence to ensure that the trial judge understands that a good character direction is sought: para 11, citing Thompson v R [1998] AC 811 (PC). Omission of the direction requires attention to two matters: was the trial thereby rendered unfair to the accused, and did the omission render the verdict unsafe? (citing for these, Teeluck and John v The State [2005] UKPC 14 at para 39, blogged here, 1 April 2005).
Whereas it may have seemed on some readings that the law requires the direction to be given as a matter of course, in Gilbert it was emphasised that the requirement is that the direction should "normally" be given (para 15, citing R v Aziz [1996] 1 AC 41). That is, the issues of fairness and effect on the result are examined in the particular circumstances of each case. That, of course, is obvious for the result point, and Gilbert makes it clear that fairness is also a matter to be determined on the particular circumstances. There are, thus, no hard or inflexible rules about whether fairness requires the direction, rather the nature of the issues in each case must be examined: para 20, citing Lord Bingham in Singh v The State [2005] UKPC 35 at para 14.
Here, then, the circumstantial evidence of guilt was substantial (para 18), and the accused’s good character was wholly outweighed by the nature and coherence of the circumstantial evidence (applying a phrase used by Lord Hope in Balson v The State [2005] UKPC 6, para 37). The absence of the good character direction therefore had no effect on the fairness of the trial or on its result.
One must observe, with respect, that the question of fairness, which is a procedural matter, will be swamped by the question of result, which is an evidential matter, unless the two are kept distinct. Certainly, the Privy Council here, at para 19, noted that the trial was fair in all other respects, even being "unduly fair" [sic] in that the judge refrained from commenting on the accused's failure to give evidence. Nevertheless, the risk remains that the impression will be given that unfair procedure may be cured by strong evidence, which is undoubtedly not what the Privy Council intended to convey.
The difficulty is that a good character direction is aimed at assisting the jury to evaluate the weight to be given to the evidence, and here it was the complainant's evidence. In fairness terms, the direction is concerned with the avoidance of bias. What is relevant to bias is, not the strength of the prosecution evidence, but whether the absence of the direction put the accused at a disadvantage. On the facts of Gilbert, where the accused was a minister of religion, his previous good character was probably taken for granted by the jury. Therefore, it could safely be concluded that there was no unfairness to him occasioned by the absence of a good character direction.
Gilbert makes the point that there is a duty on counsel for the defence to ensure that the trial judge understands that a good character direction is sought: para 11, citing Thompson v R [1998] AC 811 (PC). Omission of the direction requires attention to two matters: was the trial thereby rendered unfair to the accused, and did the omission render the verdict unsafe? (citing for these, Teeluck and John v The State [2005] UKPC 14 at para 39, blogged here, 1 April 2005).
Whereas it may have seemed on some readings that the law requires the direction to be given as a matter of course, in Gilbert it was emphasised that the requirement is that the direction should "normally" be given (para 15, citing R v Aziz [1996] 1 AC 41). That is, the issues of fairness and effect on the result are examined in the particular circumstances of each case. That, of course, is obvious for the result point, and Gilbert makes it clear that fairness is also a matter to be determined on the particular circumstances. There are, thus, no hard or inflexible rules about whether fairness requires the direction, rather the nature of the issues in each case must be examined: para 20, citing Lord Bingham in Singh v The State [2005] UKPC 35 at para 14.
Here, then, the circumstantial evidence of guilt was substantial (para 18), and the accused’s good character was wholly outweighed by the nature and coherence of the circumstantial evidence (applying a phrase used by Lord Hope in Balson v The State [2005] UKPC 6, para 37). The absence of the good character direction therefore had no effect on the fairness of the trial or on its result.
One must observe, with respect, that the question of fairness, which is a procedural matter, will be swamped by the question of result, which is an evidential matter, unless the two are kept distinct. Certainly, the Privy Council here, at para 19, noted that the trial was fair in all other respects, even being "unduly fair" [sic] in that the judge refrained from commenting on the accused's failure to give evidence. Nevertheless, the risk remains that the impression will be given that unfair procedure may be cured by strong evidence, which is undoubtedly not what the Privy Council intended to convey.
The difficulty is that a good character direction is aimed at assisting the jury to evaluate the weight to be given to the evidence, and here it was the complainant's evidence. In fairness terms, the direction is concerned with the avoidance of bias. What is relevant to bias is, not the strength of the prosecution evidence, but whether the absence of the direction put the accused at a disadvantage. On the facts of Gilbert, where the accused was a minister of religion, his previous good character was probably taken for granted by the jury. Therefore, it could safely be concluded that there was no unfairness to him occasioned by the absence of a good character direction.
Tuesday, March 28, 2006
Two points of conduct
In Ebanks v R (Cayman Islands) [2006] UKPC 16 (27 March 2006) the Privy Council reminded us of a couple of fundamental points:
- when a client instructs that he will not give evidence, that instruction must be in writing and signed by the client.
- counsel in cross-examining must put his client’s case, including allegations that the witness is lying, even if the client is not going to give, or call, evidence to establish that fact.
In Ebanks, the appeal against conviction for murder was brought on the grounds of failure by counsel to carry out the client’s instructions in the conduct of his defence, and that this resulted in an unfair trial.
Here again, we have the difficult topic of trial fairness, and again the Privy Council divided 3 – 2 on this issue. We saw a similar split in Howse v R (see these blogs for 10 October 2004), in a Board that was differently constituted but with some overlap in membership. In Ebanks, Lord Rodger gave the decision of the majority (Lords Carswell and Mance agreeing) upholding the conviction, and the dissenters were Lord Steyn and Sir Swinton Thomas. In Howse, the majority, upholding the convictions, were Lords Hutton and Carswell, and the dissenters were Lord Rodger and Sir Andrew Leggatt.
In Ebanks, the reason that persuaded the majority that there had not been unfairness emerged from a consideration of counsel’s conduct at trial, when he appeared to be regularly consulting with his client in a way that was consistent with a carefully conducted defence. In those circumstances, it was possible, notwithstanding the absence of a written record, to reject the suggestion that counsel had not followed the client’s instructions.
The minority in Ebanks focused on the conduct of the hearing in the Cayman Islands Court of Appeal. They held that this had involved a failure of due process, because the Court had wrongly refused to allow the appellant to supplement his affidavit with oral evidence. That Court had also been wrong in its understanding of the duty of counsel in cross-examining to put the client’s case that the police witnesses were lying. The Court had inferred that these allegations were not put because Mr Ebanks had instructed that he would not give evidence, and that his post-conviction claim that he wanted to give evidence was wrong (para 42 per Lord Steyn). This, Lord Steyn (with Sir Swinton Thomas agreeing) held, was a material irregularity, potentially prejudicing the appellant. It seems that in his affidavit filed in the Court of Appeal, Mr Ebanks had not addressed the point about what he had instructed counsel about whether he would give evidence. Lord Steyn considered that if he had been allowed to give oral evidence on that, counsel may well have agreed that he had indeed given that instruction. If that had happened, he would have been denied a fair trial. Sir Swinton Thomas agreed, emphasising the significance of the absence of a written record of the client's instructions, despite his waiver of privilege.
Process takes priority over substance. It cannot be said that guilt can be determined reliably at an unfair trial. Lord Steyn applied, mutatis mutandis, a passage from Wade and Forsyth, Administrative Law, 9th Ed (2005) at 506-508 (see para 40 of his judgment - here I have italisised the passage from the textbook):
" "Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:
'If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
The dangers were vividly expressed by Megarry J, criticising the contention that 'the result is obvious from the start':
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered."
Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference. To have decided the case on such a basis would have been unfair and contrary to due process. After all, it is entirely possible (and even likely) that Mr St. John Stevens [counsel for Mr Ebanks at trial]would have made the same core concession that Mr McGrath [Attorney for Mr Ebanks]made, viz that the Appellant insisted that he made no confession to the police."
One must, of course, make allowances for the differing circumstances of each case, but it is interesting to observe that a judge (Lord Rodger) who could uphold the trial in Ebanks as being fair, was such a strong dissenter in Howse.
The dicta in this case about counsel’s duty to put the case to witnesses in cross-examination, even where evidence is not being called to establish the points, in effect amplify Rule 10.02 of our Rules of Professional Conduct for Barristers and Solicitors.
- when a client instructs that he will not give evidence, that instruction must be in writing and signed by the client.
- counsel in cross-examining must put his client’s case, including allegations that the witness is lying, even if the client is not going to give, or call, evidence to establish that fact.
In Ebanks, the appeal against conviction for murder was brought on the grounds of failure by counsel to carry out the client’s instructions in the conduct of his defence, and that this resulted in an unfair trial.
Here again, we have the difficult topic of trial fairness, and again the Privy Council divided 3 – 2 on this issue. We saw a similar split in Howse v R (see these blogs for 10 October 2004), in a Board that was differently constituted but with some overlap in membership. In Ebanks, Lord Rodger gave the decision of the majority (Lords Carswell and Mance agreeing) upholding the conviction, and the dissenters were Lord Steyn and Sir Swinton Thomas. In Howse, the majority, upholding the convictions, were Lords Hutton and Carswell, and the dissenters were Lord Rodger and Sir Andrew Leggatt.
In Ebanks, the reason that persuaded the majority that there had not been unfairness emerged from a consideration of counsel’s conduct at trial, when he appeared to be regularly consulting with his client in a way that was consistent with a carefully conducted defence. In those circumstances, it was possible, notwithstanding the absence of a written record, to reject the suggestion that counsel had not followed the client’s instructions.
The minority in Ebanks focused on the conduct of the hearing in the Cayman Islands Court of Appeal. They held that this had involved a failure of due process, because the Court had wrongly refused to allow the appellant to supplement his affidavit with oral evidence. That Court had also been wrong in its understanding of the duty of counsel in cross-examining to put the client’s case that the police witnesses were lying. The Court had inferred that these allegations were not put because Mr Ebanks had instructed that he would not give evidence, and that his post-conviction claim that he wanted to give evidence was wrong (para 42 per Lord Steyn). This, Lord Steyn (with Sir Swinton Thomas agreeing) held, was a material irregularity, potentially prejudicing the appellant. It seems that in his affidavit filed in the Court of Appeal, Mr Ebanks had not addressed the point about what he had instructed counsel about whether he would give evidence. Lord Steyn considered that if he had been allowed to give oral evidence on that, counsel may well have agreed that he had indeed given that instruction. If that had happened, he would have been denied a fair trial. Sir Swinton Thomas agreed, emphasising the significance of the absence of a written record of the client's instructions, despite his waiver of privilege.
Process takes priority over substance. It cannot be said that guilt can be determined reliably at an unfair trial. Lord Steyn applied, mutatis mutandis, a passage from Wade and Forsyth, Administrative Law, 9th Ed (2005) at 506-508 (see para 40 of his judgment - here I have italisised the passage from the textbook):
" "Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:
'If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
The dangers were vividly expressed by Megarry J, criticising the contention that 'the result is obvious from the start':
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered."
Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference. To have decided the case on such a basis would have been unfair and contrary to due process. After all, it is entirely possible (and even likely) that Mr St. John Stevens [counsel for Mr Ebanks at trial]would have made the same core concession that Mr McGrath [Attorney for Mr Ebanks]made, viz that the Appellant insisted that he made no confession to the police."
One must, of course, make allowances for the differing circumstances of each case, but it is interesting to observe that a judge (Lord Rodger) who could uphold the trial in Ebanks as being fair, was such a strong dissenter in Howse.
The dicta in this case about counsel’s duty to put the case to witnesses in cross-examination, even where evidence is not being called to establish the points, in effect amplify Rule 10.02 of our Rules of Professional Conduct for Barristers and Solicitors.
Thursday, March 23, 2006
School Rules, OK!
Yesterday, the House of Lords decided Begum v Denbigh High School [2006] UKHL 15 (22 March 2006), a case that has some bearing on how a provision commonly found in Bills of Rights is to be understood.
The relevant provision in New Zealand is s 5 of the Bill of Rights:
5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In Begum, the interpretation of article 9 of the ECHR was in issue, and it can be seen that art 9.2 corresponds to s 5 of NZBORA:
"Freedom of thought, conscience and religion
9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others."
The difference in wording is immaterial, because neither s 5 nor art 9 seeks to establish a set of procedural steps that courts must apply in deciding whether limitations on rights are justified.
Lord Bingham, at para 31, emphasised that what matters is the practical outcome (ie whether a rule is an unjustified limitation of a right), not the quality of the decision making process that led to it (ie not, on the facts of this case, whether the school authorities reasoned correctly when they decided upon the rule).
Lord Hoffmann agreed, saying at para 68:
" … article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law."
Begum suggests that a formalistic approach to the decision, about whether a right has been subject to unjustified limitation, is inappropriate, and that it is the practical outcome that matters. In Begum the school rule that proscribed the wearing of religious clothing was held, in the particular circumstances of this case (it is important to recognise that the Law Lords were not usurping Parliament’s power by seeking to rule on the validity of legislation that gave the power to make rules to the governing body of each school), not to be an unjustified limitation of the right to express religious belief. The school in question had carefully considered its rule about uniforms, in the context of the composition of its roll and the views of the community it served. Lord Bingham concluded, para 34:
"On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision."
In Hansen, blogged here 19 September 2005, alternative interpretations of a section that has a limiting effect on the presumption of innocence are under consideration. The Begum approach would look at the practical outcome of each. One would require an accused to establish innocence on the balance of probabilities. This is a serious limitation on the presumption of innocence. In the absence of any evidence that Parliament deliberately intended (ie intended after deliberation) that that limitation should be imposed, the alternative interpretation, that the section requires the accused to raise a reasonable doubt about his guilt, should be preferred. In deciding whether Parliament intended the more limiting meaning, it must be relevant to note that when the section was recently re-enacted, there was no Report from the Attorney-General to the effect that the provision appears to be inconsistent with any of the provisions of NZBORA, as is required by s 7. In the absence of an express parliamentary intention to limit the presumption of innocence, the courts should not impose such a limitation through interpretation.
On this approach, s 5 works as a guide to Parliament when it considers legislating to limit rights. This point was made by the Chief Justice in argument during the Supreme Court hearing in Hansen v R. It also reminds courts engaged with provisions that may impinge on rights to look for indications of legislative intent to limit rights.
The relevant provision in New Zealand is s 5 of the Bill of Rights:
5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In Begum, the interpretation of article 9 of the ECHR was in issue, and it can be seen that art 9.2 corresponds to s 5 of NZBORA:
"Freedom of thought, conscience and religion
9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others."
The difference in wording is immaterial, because neither s 5 nor art 9 seeks to establish a set of procedural steps that courts must apply in deciding whether limitations on rights are justified.
Lord Bingham, at para 31, emphasised that what matters is the practical outcome (ie whether a rule is an unjustified limitation of a right), not the quality of the decision making process that led to it (ie not, on the facts of this case, whether the school authorities reasoned correctly when they decided upon the rule).
Lord Hoffmann agreed, saying at para 68:
" … article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law."
Begum suggests that a formalistic approach to the decision, about whether a right has been subject to unjustified limitation, is inappropriate, and that it is the practical outcome that matters. In Begum the school rule that proscribed the wearing of religious clothing was held, in the particular circumstances of this case (it is important to recognise that the Law Lords were not usurping Parliament’s power by seeking to rule on the validity of legislation that gave the power to make rules to the governing body of each school), not to be an unjustified limitation of the right to express religious belief. The school in question had carefully considered its rule about uniforms, in the context of the composition of its roll and the views of the community it served. Lord Bingham concluded, para 34:
"On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision."
In Hansen, blogged here 19 September 2005, alternative interpretations of a section that has a limiting effect on the presumption of innocence are under consideration. The Begum approach would look at the practical outcome of each. One would require an accused to establish innocence on the balance of probabilities. This is a serious limitation on the presumption of innocence. In the absence of any evidence that Parliament deliberately intended (ie intended after deliberation) that that limitation should be imposed, the alternative interpretation, that the section requires the accused to raise a reasonable doubt about his guilt, should be preferred. In deciding whether Parliament intended the more limiting meaning, it must be relevant to note that when the section was recently re-enacted, there was no Report from the Attorney-General to the effect that the provision appears to be inconsistent with any of the provisions of NZBORA, as is required by s 7. In the absence of an express parliamentary intention to limit the presumption of innocence, the courts should not impose such a limitation through interpretation.
On this approach, s 5 works as a guide to Parliament when it considers legislating to limit rights. This point was made by the Chief Justice in argument during the Supreme Court hearing in Hansen v R. It also reminds courts engaged with provisions that may impinge on rights to look for indications of legislative intent to limit rights.
Friday, March 17, 2006
Rights and Power
This week’s decision of the European Court of Human Rights (Fourth Section) concerning Application no. 23276/04 by Saddam Hussein draws our attention to some characteristics of rights and jurisdiction.
Ideally, human rights should be enjoyed by everyone, no matter where they happen to be. Rights, however, mean nothing unless they can be enforced. Enforcement involves an assertion and exercise of jurisdiction by an authority with power. Rights ultimately depend on power.
It was argued for the Applicant that he had rights under the European Convention on Human Rights, because he was arrested in an area where jurisdiction was exercised by countries, as part of a coalition, that included countries that are bound by the Convention:
"He maintained that he fell within the jurisdiction of all the respondent States because they were the occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further argued that he remained within their jurisdiction following the transfer of authority, and his transfer, to the Iraqi authorities in June 2004 because the respondent States remained in de facto control in Iraq."
The Court rejected these submissions because they were not substantiated by evidence of the kind of power and control necessary to establish jurisdiction.
The sort of argument advanced in this case calls to mind the current international expansion of criminal jurisdiction without there being a need for territorial control. There are now numerous examples. One in New Zealand law is s 12C of the Misuse of Drugs Act 1975, which provides that every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against s 6 (dealing with controlled drugs), s 9 (cultivation of prohibited plants), s 12A (manufacturing, producing, supplying equipment or precursor substances for use in manufacturing or cultivating), s 12AB (knowingly importing or exporting precursor substances for unlawful use), or s 12B (laundering proceeds of drug offences). Consequently, courts in New Zealand have jurisdiction over the proscribed behaviour no matter where in the world it occurs. The offender need not be a New Zealander, and the offence need have nothing to do with New Zealand. Once the offender is in New Zealand territory he can be charged. See also s 7A of the Crimes Act 1961 for other examples of this sort of extension of jurisdiction.
Jurisdiction to punish does not, as these examples show, depend on the exercise of territorial control. Are rights limited by territorial control?
If an Iraqi committed in Iraq what we in New Zealand call a drug dealing offence, and then came to New Zealand, it is likely that he would enjoy the protection of our Bill of Rights, and of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory. So, if evidence had been obtained against him in Iraq by methods that would have contravened his rights if he were in New Zealand, a court in New Zealand would apply New Zealand law to determine the admissibility of that evidence on a charge for the offending against s 12C.
For an analogous illustration, see the rejection by English courts of evidence obtained by torture, including torture in a foreign country, discussed in these blogs on 11 August 2004.
In this sense, then, rights do extend beyond the limits of territorial control of the State in which they may be recognised. Was the European Court wrong to require a demonstration of power and control by the respondent States?
The difficulty faced by the Applicant is that the power to try him is asserted by the Iraqi Government, the existence of which is endorsed by the UN Security Council, and that Government is not a party to the ECHR which establishes an obligation to enforce the rights on which he sought to rely. To enforce those rights, the Applicant would have to be tried by a court in one of the respondent States.
Ideally, human rights should be enjoyed by everyone, no matter where they happen to be. Rights, however, mean nothing unless they can be enforced. Enforcement involves an assertion and exercise of jurisdiction by an authority with power. Rights ultimately depend on power.
It was argued for the Applicant that he had rights under the European Convention on Human Rights, because he was arrested in an area where jurisdiction was exercised by countries, as part of a coalition, that included countries that are bound by the Convention:
"He maintained that he fell within the jurisdiction of all the respondent States because they were the occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further argued that he remained within their jurisdiction following the transfer of authority, and his transfer, to the Iraqi authorities in June 2004 because the respondent States remained in de facto control in Iraq."
The Court rejected these submissions because they were not substantiated by evidence of the kind of power and control necessary to establish jurisdiction.
The sort of argument advanced in this case calls to mind the current international expansion of criminal jurisdiction without there being a need for territorial control. There are now numerous examples. One in New Zealand law is s 12C of the Misuse of Drugs Act 1975, which provides that every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against s 6 (dealing with controlled drugs), s 9 (cultivation of prohibited plants), s 12A (manufacturing, producing, supplying equipment or precursor substances for use in manufacturing or cultivating), s 12AB (knowingly importing or exporting precursor substances for unlawful use), or s 12B (laundering proceeds of drug offences). Consequently, courts in New Zealand have jurisdiction over the proscribed behaviour no matter where in the world it occurs. The offender need not be a New Zealander, and the offence need have nothing to do with New Zealand. Once the offender is in New Zealand territory he can be charged. See also s 7A of the Crimes Act 1961 for other examples of this sort of extension of jurisdiction.
Jurisdiction to punish does not, as these examples show, depend on the exercise of territorial control. Are rights limited by territorial control?
If an Iraqi committed in Iraq what we in New Zealand call a drug dealing offence, and then came to New Zealand, it is likely that he would enjoy the protection of our Bill of Rights, and of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory. So, if evidence had been obtained against him in Iraq by methods that would have contravened his rights if he were in New Zealand, a court in New Zealand would apply New Zealand law to determine the admissibility of that evidence on a charge for the offending against s 12C.
For an analogous illustration, see the rejection by English courts of evidence obtained by torture, including torture in a foreign country, discussed in these blogs on 11 August 2004.
In this sense, then, rights do extend beyond the limits of territorial control of the State in which they may be recognised. Was the European Court wrong to require a demonstration of power and control by the respondent States?
The difficulty faced by the Applicant is that the power to try him is asserted by the Iraqi Government, the existence of which is endorsed by the UN Security Council, and that Government is not a party to the ECHR which establishes an obligation to enforce the rights on which he sought to rely. To enforce those rights, the Applicant would have to be tried by a court in one of the respondent States.
Thursday, March 16, 2006
Legality v Common sense
Should one feel sorry for a person who, having served a sentence of imprisonment, has his convictions quashed on appeal because the evidence against him should not have been ruled admissible?
A concurrent sentence of two years imprisonment for two aggravated robberies was served by the appellant "S", a 15 year-old. Then, on appeal, two High Court judges sitting together held that the evidence of his guilt, which was entirely contained in his statement to the police, should have been excluded, and his convictions were quashed: S v Police 14/3/06, Baragwanath and Heath JJ, HC Auckland CRI 2004-404-515.
In reality, unless his confessions were false, S was guilty and, no doubt, he deserved his sentence. But that is to ignore the rule of law, which in this context means that punishment can only be imposed following due process of law. If by "due process" we mean upon lawful conviction, then S did not receive due process.
The problem arises from practicalities. Sentences take effect before rights of appeal against convictions have been exercised. Trials proceed before rights of appeal against evidential rulings have been exercised. Evidential rulings during a trial must be left for appeal after completion of the trial, otherwise trials would have to adjourn to allow appeals to be heard.
The obvious course, to minimise "false" imprisonment, would be to defer sentencing hearings until appeals had been determined, but that is often impractical: many convicted people would run away, or would have to be denied bail.
If there is no viable alternative to the present procedure, should people like S be compensated? How would compensation be measured? Our assessment of the value of due process may have to be balanced against the harm caused by the offender. The courts may be forced to say that the real remedy is the vindication that follows from the quashing of the conviction: see further, my blogs of 6 and 30 March 2005.
In S v Police, a police officer had told S that he wanted him to point out where burglaries had occurred, so that files could be cleared up, and that he would not be charged with committing them. Unexpectedly, from the officer’s point of view, S said he had committed a couple of aggravated robberies. He was interviewed about those, he confessed to them, and was charged. If his initial mention of them had been a "spontaneous" utterance, his consequential dealings with the police would not have been flawed, as the correct procedures for dealing with young people had been followed thereafter. However, if the initial reference to the robberies was not spontaneous, in the sense that it was made in reliance on the officer’s assurance that he would not be charged, then it was made in circumstances that were in breach of the statutory procedures, and what followed, although correct in itself, could be tainted.
The High Court held that the utterance was not spontaneous, but rather it had been made in reliance on the officer’s assurance. There was an error of procedure surrounding that, so the question became whether the following procedures, which led to the making of the confession, were indeed tainted.
The Court found it necessary, at this point, to consider the nature of causation (para 56 – 67). This came down to asking whether, in the circumstances, the non-spontaneous utterance had been the "effective cause" of the subsequent confession. It had, and because the use of an inadmissible statement to secure a subsequent statement was contrary to the policy of the legislation (para 59), both were inadmissible.
A lot turned, in this case, on how the judges assessed the circumstances. It could easily have been decided that S had, on receiving the advice to which he was entitled, decided to make a clean breast of everything, and that that decision, rather than the earlier indication that he would not be charged, was the effective cause of his confession. In cases like this, where the assessment of the circumstances seems to be finely balanced, it is tempting (but, in law, wrong) to think that the court was influenced by the common sense solution: S had served his sentence and may as well be relieved of the convictions to give him some incentive to obey the law.
Did the absence of any compensation for the "wrongful" imprisonment facilitate this balancing of the circumstances?
A concurrent sentence of two years imprisonment for two aggravated robberies was served by the appellant "S", a 15 year-old. Then, on appeal, two High Court judges sitting together held that the evidence of his guilt, which was entirely contained in his statement to the police, should have been excluded, and his convictions were quashed: S v Police 14/3/06, Baragwanath and Heath JJ, HC Auckland CRI 2004-404-515.
In reality, unless his confessions were false, S was guilty and, no doubt, he deserved his sentence. But that is to ignore the rule of law, which in this context means that punishment can only be imposed following due process of law. If by "due process" we mean upon lawful conviction, then S did not receive due process.
The problem arises from practicalities. Sentences take effect before rights of appeal against convictions have been exercised. Trials proceed before rights of appeal against evidential rulings have been exercised. Evidential rulings during a trial must be left for appeal after completion of the trial, otherwise trials would have to adjourn to allow appeals to be heard.
The obvious course, to minimise "false" imprisonment, would be to defer sentencing hearings until appeals had been determined, but that is often impractical: many convicted people would run away, or would have to be denied bail.
If there is no viable alternative to the present procedure, should people like S be compensated? How would compensation be measured? Our assessment of the value of due process may have to be balanced against the harm caused by the offender. The courts may be forced to say that the real remedy is the vindication that follows from the quashing of the conviction: see further, my blogs of 6 and 30 March 2005.
In S v Police, a police officer had told S that he wanted him to point out where burglaries had occurred, so that files could be cleared up, and that he would not be charged with committing them. Unexpectedly, from the officer’s point of view, S said he had committed a couple of aggravated robberies. He was interviewed about those, he confessed to them, and was charged. If his initial mention of them had been a "spontaneous" utterance, his consequential dealings with the police would not have been flawed, as the correct procedures for dealing with young people had been followed thereafter. However, if the initial reference to the robberies was not spontaneous, in the sense that it was made in reliance on the officer’s assurance that he would not be charged, then it was made in circumstances that were in breach of the statutory procedures, and what followed, although correct in itself, could be tainted.
The High Court held that the utterance was not spontaneous, but rather it had been made in reliance on the officer’s assurance. There was an error of procedure surrounding that, so the question became whether the following procedures, which led to the making of the confession, were indeed tainted.
The Court found it necessary, at this point, to consider the nature of causation (para 56 – 67). This came down to asking whether, in the circumstances, the non-spontaneous utterance had been the "effective cause" of the subsequent confession. It had, and because the use of an inadmissible statement to secure a subsequent statement was contrary to the policy of the legislation (para 59), both were inadmissible.
A lot turned, in this case, on how the judges assessed the circumstances. It could easily have been decided that S had, on receiving the advice to which he was entitled, decided to make a clean breast of everything, and that that decision, rather than the earlier indication that he would not be charged, was the effective cause of his confession. In cases like this, where the assessment of the circumstances seems to be finely balanced, it is tempting (but, in law, wrong) to think that the court was influenced by the common sense solution: S had served his sentence and may as well be relieved of the convictions to give him some incentive to obey the law.
Did the absence of any compensation for the "wrongful" imprisonment facilitate this balancing of the circumstances?
Tuesday, March 14, 2006
Inferences of innocence
A commonly advanced ground of appeal against conviction is that the evidence supported an inference of innocence and the judge did not correctly tell the jury how they should deal with inferences.
We have passed through a period when much attention was given to what inferences are and how they should be handled. Things got rather complex as efforts were made to be precise about this. The relationship between the process of drawing inferences, and the process of deciding whether something has been proved, was at the centre of this complexity.
Some facts are proved by direct evidence: for example, a witness says that he saw something happen. Other facts are inferred from direct evidence: the facts that are directly proved suggest that something else is true. In turn, these inferred facts may combine, with other inferred facts, or with directly proved facts, or with a mixture of inferred facts and direct facts, to enable a further inference that something else is true. Wherever an inference occurs, it is usually described as an ordinary process of logical thought.
As to proof, it is relatively easy to see that evidence of directly observed facts may prove those facts, to the necessary standard. If the fact is an element of the alleged offence, then, when the jury considers all the evidence in the case, it must decide whether that element has been proved beyond reasonable doubt. But, in relation to other facts, (and with some exceptions), no particular standard of proof is required. The jury does not have to be instructed by the judge about the standard to which they must be satisfied that inferred facts are proved before they can use them to support other inferences, such as an inference of an element of the offence, as long as, ultimately, the jury tests the proof of the elements of the offence against the standard of beyond reasonable doubt.
So, what about the inferences supporting innocence? In what has been regarded as the leading case on inferences in New Zealand, R v Puttick (1985) 1 CRNZ 644 (CA) the Court summarised the position:
"Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
… It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step."
This could suggest (although we can be sure the Court did not intend this reading) that an inference supporting innocence can neither be accepted nor rejected if it is equal in weight to an inference of guilt.
A clearer account has been given in R v Seekamut 10/7/03, CA82/03:
"If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable."
Similarly, yesterday the Privy Council in Taylor v R (Jamaica) [2006] UKPC 12 (13 March 2006), para 18, held:
"Their Lordships agree with the submission made on behalf of the appellant that in the circumstances of this case it was essential that the judge … spell out the possible inferences to be drawn … and instruct them that they must rule out all inferences consistent with innocence before they could be satisfied that the inference of guilt has been proved correct."
This could be read as suggesting a slightly different approach to that in Seekamut: instead of treating the evidence as all being in a big pool, to be considered in the round to see what ends up being proved, the process alluded to in Taylor seems to be one of deciding first whether inferences of innocence can be ruled out, then, if they are, turning to see whether guilt has been proved. We might, however, reasonably wonder whether this explication is correct, insofar as it seems to place a burden of proof on the defence, and it also seems to make an artificial distinction between stages of the reasoning process. The correct approach would be to tell the jury that, if after considering the evidence, they are left with a reasonable doubt about the accused's guilt, they must find him not guilty.
Because the judge in Taylor failed properly to direct the jury in this regard, the appeal against conviction was allowed and the case remitted to determine whether there should be a retrial.
We have passed through a period when much attention was given to what inferences are and how they should be handled. Things got rather complex as efforts were made to be precise about this. The relationship between the process of drawing inferences, and the process of deciding whether something has been proved, was at the centre of this complexity.
Some facts are proved by direct evidence: for example, a witness says that he saw something happen. Other facts are inferred from direct evidence: the facts that are directly proved suggest that something else is true. In turn, these inferred facts may combine, with other inferred facts, or with directly proved facts, or with a mixture of inferred facts and direct facts, to enable a further inference that something else is true. Wherever an inference occurs, it is usually described as an ordinary process of logical thought.
As to proof, it is relatively easy to see that evidence of directly observed facts may prove those facts, to the necessary standard. If the fact is an element of the alleged offence, then, when the jury considers all the evidence in the case, it must decide whether that element has been proved beyond reasonable doubt. But, in relation to other facts, (and with some exceptions), no particular standard of proof is required. The jury does not have to be instructed by the judge about the standard to which they must be satisfied that inferred facts are proved before they can use them to support other inferences, such as an inference of an element of the offence, as long as, ultimately, the jury tests the proof of the elements of the offence against the standard of beyond reasonable doubt.
So, what about the inferences supporting innocence? In what has been regarded as the leading case on inferences in New Zealand, R v Puttick (1985) 1 CRNZ 644 (CA) the Court summarised the position:
"Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
… It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step."
This could suggest (although we can be sure the Court did not intend this reading) that an inference supporting innocence can neither be accepted nor rejected if it is equal in weight to an inference of guilt.
A clearer account has been given in R v Seekamut 10/7/03, CA82/03:
"If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable."
Similarly, yesterday the Privy Council in Taylor v R (Jamaica) [2006] UKPC 12 (13 March 2006), para 18, held:
"Their Lordships agree with the submission made on behalf of the appellant that in the circumstances of this case it was essential that the judge … spell out the possible inferences to be drawn … and instruct them that they must rule out all inferences consistent with innocence before they could be satisfied that the inference of guilt has been proved correct."
This could be read as suggesting a slightly different approach to that in Seekamut: instead of treating the evidence as all being in a big pool, to be considered in the round to see what ends up being proved, the process alluded to in Taylor seems to be one of deciding first whether inferences of innocence can be ruled out, then, if they are, turning to see whether guilt has been proved. We might, however, reasonably wonder whether this explication is correct, insofar as it seems to place a burden of proof on the defence, and it also seems to make an artificial distinction between stages of the reasoning process. The correct approach would be to tell the jury that, if after considering the evidence, they are left with a reasonable doubt about the accused's guilt, they must find him not guilty.
Because the judge in Taylor failed properly to direct the jury in this regard, the appeal against conviction was allowed and the case remitted to determine whether there should be a retrial.
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