Monday, September 11, 2006

Negligent Barristers

Negligent barristers will – or should, despite their negligence – sit up straight and contemplate the Supreme Court’s removal of barristers’ immunity from suit for negligence: Chamberlains v Lai [2006] NZSC 70 (11 September 2006). The Court upheld the Court of Appeal decision in respect of civil cases, and extended it to include criminal cases.

Questions that this raises include:
  • What sort of conduct can attract this liability: voluntary service at a citizens’ advice bureau, duty soliciting by barristers, pro bono services, preliminary advice which does not lead to engagement as counsel, advice concerning plea, applications for bail, discovery and other preparatory work, legal research, conduct of courtroom representation?
  • Does a final decision by a court in the proceedings create an estoppel? To what extent would a collateral challenge to such a decision, as part of an action for negligence, amount to an abuse of process?
  • What is the standard of conduct that amounts to negligence? Does it, for example, equate to professional misconduct?
  • How should damages be assessed? If the client is guilty, does he have a duty to plead guilty at an early stage so as to mitigate any loss that might be suffered by endeavours (negligently conducted) to secure an acquittal?
  • Can the barrister enter into a contract with the client to limit liability for negligence?
  • Is this liability retrospective, and, if so, how far back does it extend?


The Supreme Court does not here seek to answer these questions, but rather recognises that developments in the law will be necessary as they are raised in particular cases.


Some indications of what may happen are given. In their joint judgment, Elias CJ, Gault and Keith JJ touched on issue estoppel, double jeopardy and abuse of process (paras 58-59), and concluded that it would be unwise to limit the potential use of the power to strike out proceedings to prevent an abuse of process (para 61). While a collateral challenge to a subsisting conviction may be an abuse of process, that will not always be so, and it is necessary to recognise that there may be exceptions (para 66). Tipping J disagreed on this point, to the extent of preferring a rule preventing collateral challenges to subsisting convictions (para 189), but Thomas J sided with the majority, citing his published views on the advantages of pragmatism over formalism (para 207).


Other matters for future consideration are mentioned in para 75:


" … Following the lifting of the immunity, it may well be necessary to consider whether reasons of legal policy impact upon liability for the negligent conduct of criminal proceedings. The extent to which the public interest requires redress to be obtained only or principally within the remedies provided by the criminal justice system itself will have to be considered. It will be necessary to consider too whether there are any limits to liability."


The standard of care was alluded to in para 78:


" … The application of liability "should not stifle advocates’ independence of mind and action in the manner in which they conduct litigation and advise their clients" [citing Moy v Pettman Smith [2005] 1 WLR 581, 599 per Lord Carswell]. Nor should the standard of care imposed be such as to force advocates into defensive lawyering which is contrary to the public interest in the fair and efficient operation of the criminal justice system. And establishing that negligence is causative of loss will not be easy in circumstances where the direct cause of loss is the imposition of an independent judgment."


Tipping J observed that an action for negligence could hardly succeed if an appeal against conviction had not succeeded (para 190):


"The decision of this Court in Sungsuwan v R [2006] 1 NZLR 730 makes it clear that the conduct of counsel, whether negligent or not, can afford grounds for setting aside a conviction if the Court of Appeal is of the view that there is a real risk that the verdict of the jury is unsafe. If that cannot be shown on appeal, counsel’s conduct could hardly later be found on the balance of probabilities to have led to an unsafe verdict. Real risk is a significantly lower standard to meet than more probable than not."


And he added, at para 200-201:


"The problems are likely to be more substantial in the criminal arena. Significant policy issues can be forecast. Should the law of torts award damages for negligence when the loss derives from a lawful period of imprisonment? Should the law impose on barristers a duty of care when other participants in the system, albeit for different reasons, owe no such duty or are immune from any liability for a breach?


"[201]Contribution problems may be substantial. Seldom is a conviction likely to be set aside solely on the grounds of counsel’s negligence. The Judge may have had some responsibility to guard the accused against certain types of negligence by counsel. While some of these points, and no doubt others, could be invoked in favour of retaining barristers’ immunity, I consider they are better addressed as facets of legal policy in the context where they truly belong, rather than as support for a blanket immunity for barristers."


So, we enter upon interesting times. And, potentially lucrative ones for insurance companies.

Friday, August 25, 2006

Checking the foundations

On this, the second anniversary of the start of this blogsite, when I am about to comment on a case where the meaning of "beyond reasonable doubt" was examined, and remembering that yesterday our Supreme Court ruled on the accused’s right to a fair trial, one might be excused for thinking that criminal law had only recently been invented. Surely, these fundamentals must have been settled centuries ago?

Well, criminal law is a living thing, with its basic assumptions and rules constantly under review. It involves the handling of complex concepts, and other disciplines, especially psychology, can make a significant contribution to our perceptions of what is currently appropriate.

A Full Bench of the New Zealand Court of Appeal, in R v Wanhalla 24/8/06, CA321/05, considered whether there should be adjustments to the standard way in which judges should direct juries on what the criminal standard of proof, proof "beyond a reasonable doubt" means.

In a joint judgment, William Young P, Chambers and Robertson JJ held that, although this was not intended to be a mandatory formula, the following direction should be of assistance in many cases (para 49):

"The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

"The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.

"It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

"What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

"In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you
must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty." [emphasis added]

It was also held that best practice is to avoid expressing reasonable doubt in terms of percentages (a point on which Glazebrook J had some doubt: para 107, 109), and not to use the "domestic analogy" of telling jurors that they should approach the matter as if they were making an important decision in their own lives (the Judges were more clearly unanimous on this point).

In her judgment, Glazebrook J embarked on a scholarly analysis of various jury studies that psychologists and legal experts have carried out. Her main concern was that jurors may be too inclined to be tolerant of prosecution failures of proof, ie too reluctant to recognise a doubt as reasonable. Some studies have found that jurors tend to think in terms of estimates of probabilities. Proof of the prosecution case to the standard of a likelihood of 75% often seems to be thought sufficient (some jurors think 50% is sufficient!), and Glazebrook J pointed out (para 107, 109) that it is arguable that 100% proof should be required, as the reasonable doubt standard is closer to that than it is to 75%.

Hammond J (who has the advantage over Glazebrook J of having been an experienced trial judge) felt that the arguments for and against revision of the standard approach to direction on reasonable doubt were evenly balanced. In fairness to the Crown, absolute certainty is not required (para 165), and therefore Hammond J did not favour the mathematisation of directions. He noted that experience has shown the need to emphasise that the standard is higher than even probabilities (para 167). He agreed that the direction proposed in the joint judgment (para 49, above) would meet the needs of the vast majority of cases, yet also observed that the actual direction in a particular case should be left to the discretion of the trial judge (para 171, citing Privy Council authority for that).

My concern is with one aspect of the direction in the joint judgment (above), a concern not mentioned by any of the Judges. This focuses on the word I have italicised. A direction that the jury "must" find the accused guilty if sure that the accused is guilty, is contrary to an important constitutional safeguard. This safeguard, which in practice is one of those things that dare not speak its name, and so is never mentioned although ever-present, is the power of the jury to perversely acquit the accused. Occasions for them to do this may arise if they feel that something deeply objectionable occurred in the police investigation of the case, or in the presentation of the prosecution evidence. Authority for this is discussed in R v Wang, blogged here on 14 February 2005.

Thursday, August 24, 2006

The absolute right to a fair trial

The Supreme Court of New Zealand has accepted that the accused’s right to a fair trial is absolute, that breach of this right is a substantial miscarriage of justice so that the proviso cannot be applied, and a conviction obtained in an unfair trial must be quashed regardless of the strength of the evidence against the accused: Condon v R [2006] NZSC 62 (23 August 2006) at paras 76 - 78. The Court also reasoned that, if the error had not occurred, it could not be said that the outcome of the trial would have been the same, therefore there was unfairness in the trial and that accordingly a substantial miscarriage of justice had occurred (para 89).

This places unfairness in its proper position in relation to substantial miscarriage of justice, a position from which there had seemed to be some slippage in the Court’s earlier decision in Sungsuwan v R (blogged here 26 August 2005).

Also important in Condon is the Court’s indication of the burden of proof on fairness issues (para 81). The case concerned breach of the accused’s right to legal representation, a right described as one of the constituent elements of, or subsidiary rights to, the accused’s right to a fair trial (para 76). It held that if the court found that the subsidiary right was breached, the onus shifted to the prosecution to satisfy the Court that the trial was not unfair.

Although the Court did not specify standards of proof (more accurately, standards of persuasion) here, it did indicate that it would not easily accept that the trial had been fair: para 79.

Further indication of the importance of the right to a fair trial is the Court’s recognition that, even if the subsidiary right was not found to have been breached, the overall fairness of the trial would be examined, although in such a case the burden would be on the appellant (para 80):

"… if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there has been no breach of the appellant’s right to representation, because the trial Court was properly "satisfied" in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel…."

We have seen in these blogs that pragmatism (which would lead to the dismissal of appeals against convictions where there was no doubt about the appellant’s guilt) and formalism (which places primacy on the need for compliance with procedural fairness at trial) have been emphasised differently by judges in all the jurisdictions considered here. Although Condon concludes by linking outcome in the absence of error (pragmatism) with substantial miscarriage of justice (para 89), much of the jurisprudence the Court accepts is formalist. It is clear that the Court endorsed the dominance of the formalist approach and that even if the evidence against the appellant had been overwhelming, the absence of a fair trial would have amounted to a substantial miscarriage of justice.

On a long view of the developments in this area of the law, Condon can be seen as settling a fundamental difference between judges on the status of a criminal trial. The view that has been rejected saw criminal trials as no different from civil trials, except for the standard of proof of the ultimate issue, and also except for a special rule concerning proof to the same high standard of the voluntariness of confessions if they were to become admissible evidence. From this perspective, trials function as a search for the truth, a search which must proceed to its conclusion despite circumstances that create unfairness to either side. While judges will try to be fair to each side, other interests may require something less than absolute fairness to the defence. Examples of such other interests might be the privacy interests of a victim, the public interest in bringing those accused of crime to trial (this sometimes being phrased, less circumspectly, as the public interest in bringing offenders to justice), and, more vaguely, the interests of justice, which was seen as an overarching consideration. This view of criminal trials was taken by the authors of our two leading textbooks on the Bill of Rights.

The alternative view, accepted by the Supreme Court in Condon, is that criminal trials are sui generis, with special rules needed to accommodate the considerations peculiar to criminal law. Criminal trials are not necessarily concerned merely with the question of guilt. They can have to deal with the problem of how to react to misconduct by officials in the gathering of evidence. This required development of the concept of abuse of process, and the recognition of two senses in which the term “fairness” is used. Public policy fairness has become the grounds on which wrongfully obtained evidence may, after a balancing of relevant interests, be ruled inadmissible. This is distinct from the second sort of fairness: trial fairness. No balancing of interests occurs to diminish the accused’s right to a fair trial, which is absolute.

Establishing the broad characteristics of the accused’s right to a fair trial (ie that it is absolute and essential), is only the start of securing this right. Giving content to the meaning of “fair trial” comes next. I have, in recent publications, developed the absolutist position by suggesting that a fair trial is one where the law is correctly applied to facts that are determined without bias. There is, inevitably, some circularity in this, insofar as the law is assumed to be fair. That is why, in New Zealand, the Evidence Bill should be attracting our attention. Some of its current provisions will operate unfairly to an accused. A central concept in trial fairness is the absence of bias, whether bias in the application of the law, or bias in the determination of the facts. Judicial directions to the jury are the final opportunity in a trial to prevent unfairness to the accused, and a rigorous approach to them is essential. Proposals to water them down must be resisted.

Tuesday, August 08, 2006

Public debates on admissibility

Should the courts encourage public discussion of judicial decisions about the admissibility of evidence? This is one of the important questions raised by the New Zealand Court of Appeal yesterday in TVNZ v Rogers 7/8/06, CA12/06.

Because the decision in Rogers is likely to be appealed to the Supreme Court, I will not discuss the facts of the case in any but the most general of terms. In a criminal trial, evidence of a confession by R was ruled inadmissible and he was acquitted. Subsequently, a television programme was proposed, in which the video of the confession, which the police had given to TVNZ, would be played. The present proceedings concern whether an injunction should issue to prevent that publication.

The decision to rule the confession inadmissible at the criminal trial was, noted the Court of Appeal, not uncontroversial in law. The authorities did not all point in the same direction, and the method of weighing the competing values may have been flawed (see the joint judgment of O’Regan and Panckhurst JJ at [27], and the separate concurring judgment of William Young P at [127]). It is public discussion of this admissibility decision that the Court of Appeal seems to be encouraging.

The joint judgment makes this observation:

"[88] Although there is some substance in the Full Court’s [ie the court below] view that the content of the videotape may not add to informed public debate, it must be borne in mind that an evaluation of the reliability of disputed evidence, and of its importance to the prosecution case, is an aspect of the balancing exercise ordinarily required following a finding that evidence was obtained in breach of a suspect’s rights. The Court should be prepared to expose its reasoning process to scrutiny, to avoid perceptions of an attempt to stifle debate about its decision or about the conduct of the police officers whose conduct was under scrutiny in that decision."

And William Young P added:

"[128] I agree that the underlying issues can be debated without the videotape being shown on national television. But experience shows that arguments are usually more easily understood where they are contextualised. An esoteric argument about the way the New Zealand Bill of Rights Act is applied by the Courts becomes far more accessible to the public if the implications can be assessed by reference to the concrete facts of a particular case. In that context, to prohibit the proposed broadcast of the videotaped confession and reconstruction would necessarily have the tendency to limit legitimate public discussion on questions of genuine public interest."

Well, let us examine that thought. If public discussion is to have a point, it must be fully informed. To be fully informed, it needs to be acquainted with the different considerations that may be relevant to admissibility decisions. This requires some regard for the functions of the criminal trial, and the appropriate balance between truth seeking, on the one hand, and the extent to which police misconduct in the obtaining of evidence should be tolerated, on the other. Two extremes are apparent: admit all probative evidence, or, exclude all evidence tainted by the misconduct of officials.

Members of the public can discuss and decide where on the continuum between these extremes they individually lie. It is plain that unanimity could not be expected, and people may find themselves taking different positions depending on the nature of a particular case.

This is where the utility of publishing the details of R v Rogers (ie the criminal case) may be questioned. It is the sort of case that is likely to attract an extreme position on admissibility. It illustrates a very small part of the continuum of cases, and so is likely to illuminate only a small part of the proposed admissibility debate. This gives rise to synecdoche: the taking of a part of something to represent its whole. The entire question of how admissibility of wrongfully obtained evidence should be decided is not fairly posed by an extreme example.

The Court of Appeal is alert to the public’s tendency to employ synecdoche. In a decision delivered the same day as Rogers, by a differently constituted bench ("bench": metonymy and synecdoche!), the Court of Appeal in Marfart and Prieur v TVNZ 7/8/06, CA92/05 said:

"[62] One of the complaints made - with considerable force - against contemporary media is that what it routinely does in forming mental pictures is to use synecdoche: the portrayal of a part for the whole. (See Miller The Anatomy of Disgust (1998)). It is a common and lamentable part of entering the public gaze that the media tends to promote one salient feature of an incident (often glorified as a 30-second sound
byte), with unfortunate and unfair results. Not the least is a refusal (or at least a misportrayal) which fails to respect the fact that people may well be different in private than in public."


Pragmatism will dictate different approaches to admissibility decisions, depending on who is looking at the decision. Lawyers will look for an approach that is predictable in outcome, so that the likely prospects of a successful challenge can be assessed. Judges will look for an approach that balances the multitude of relevant considerations – interests of the accused, the prosecution, victims, the public, and the overarching need for a fair trial. Members of the public, as interested observers of the administration of justice, will look for an approach to admissibility decisions that reflects their own values.

The central idea is that of "instrumental truth" in the sense used by William James in his second lecture, entitled "What Pragmatism Means", in Pragmatism (1907):

"Truth in our ideas and beliefs means … that ideas, (which themselves are but parts of our experience) become true just in so far as they help us to get in to satisfactory relation with other parts of our experience …". (James’s emphasis)

I would apply that to our present context in this way: the right or "true" answer to an admissibility problem is that which most satisfactorily relates to the concerns we perceive as relevant. The point is that different people may see different things as being relevant to the determination of the admissibility of wrongfully obtained evidence. Have the courts adequately taken into account public interests, so that public unease about a particular case is misplaced? Shouldn't the real inquiry be why the police obtained the evidence wrongfully? What inadequacies in police training or attitudes permitted such misconduct to occur?

Monday, July 31, 2006

Reverse onus in the House of Lords

While we in New Zealand await our Supreme Court’s decision in Hansen v R, which will decide the standard of proof placed on the accused by reverse onus provisions in the light of human rights legislation, we note that the House of Lords now finds the reading down of reverse onus provisions a relatively routine matter: O v Crown Court at Harrow [2006] UKHL 42 (26 July 2006).

Here, the House of Lords was concerned with the meaning of "is satisfied" in a provision that required refusal of bail unless the court was satisfied that exceptional circumstances existed (s 25 of the Criminal Justice and Public Order Act 1994[UK]):

"(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it."

Two approaches to this were considered in the Court of Appeal. Kennedy LJ thought "satisfied" means "considers" and that the question is a matter of judgment for the court, not involving any particular standard of proof. Hooper J, on the other hand, thought that "satisfied" here puts the burden on the bail applicant, and is therefore inconsistent with the ECHR, so s 25 has to be "read down" to place only an evidentiary burden on the bail applicant.

Lords Nicholls and Hutton, and Lady Hale, agreed with Lord Brown; Lord Carswell did too, but examined the difference in interpretation in more detail. He referred, rather obliquely, to Re McClean (blogged here 7 July 2005) in which it was decided, inconsistemtly with the present case, that doubts must be resolved against the prisoner. He held that "satisfied" in s 25 means more than just an exercise of judgment, and that it connotes a burden or presumption, so s 25 has to be read down to comply with convention rights. Thus, Lord Carswell agreed with Hooper J’s approach.

Lord Brown, delivering the leading speech, had a "mild preference" for Hooper J’s approach (para 35). He pointed out that in most cases the decision will be clear cut and that the burden of proof will not assume any relevance. Occasionally, however, the court will be left unsure, and in these cases the default position should be that bail should be granted, and s 25 should be read down to make that plain.

Friday, July 28, 2006

Differences in principle and pragmatism

Appellate judges often disagree over whether an error at trial caused a substantial miscarriage of justice. Finding himself in a minority of one in Bounds v R [2006] HCA 39 (20 July 2006), Kirby J observed, para 85:

"Conclusion: a basic error: I accept that different conclusions are available on this issue. The nature of the controversy and the breadth of the language of the 'proviso' virtually assures the existence of differences of judicial views. Such differences may reflect the diverse values that judges accord to considerations of principle and pragmatism, as they regard them. Those differences appear in many cases in this Court concerned with the 'proviso' … [citing Green v The Queen (1971) 126 CLR 28 at 31; Jones v The Queen (1997) 191 CLR 439; Darkan v The Queen [2006] HCA 34]. They are also reflected in the foregoing differences of opinion in the United States Supreme Court [ie Lane v US 747 US 438 (1986)]."

It seems likely that, on the key point in Bounds, the majority were correct. A second count had been wrongly included in an indictment. The error was that the second offence was purely summary, not triable on indictment. Nevertheless, evidence of its commission would probably have been admissible as similar fact evidence in respect of the only count that should have been in the indictment. The majority (Gleeson CJ, Hayne, Callinan and Crennan JJ) at para 26 held

"… The evidence admitted at the appellant's trial about the downloading of the images the subject of count 2 was very limited. It would have been admissible on the trial of an indictment alleging only count 1."

Kirby J did not think this was so (para 100):

"Nor do I consider that the tender of such material would have been permitted in a trial if that trial had been limited to the indictable offence of possession of child pornography. A judge guarding the fairness of the conduct of such a trial would be properly careful to restrict extraneous, and possibly prejudicial, evidence. By impermissibly charging the two offences in the one indictment, an inter-mixture necessarily occurred. Descriptions or conceptions of the contents of the images became inevitable. It is that inter-mixture, before the jury, that presents the risk of a substantial miscarriage of justice. It is that risk that withholds the application of the 'proviso'."

Apart from the difference of opinion on that issue, Kirby J also differed from the majority on whether the jurisdictional error was, of itself, sufficient to prevent application of the proviso without examination of issues relating to the conduct of the trial. He reasoned (paras 87-88) that the Western Australia legislature had carefully separated the jurisdictions and that the community and the accused are therefore entitled to a trial that conforms to the law and is without jurisdictional flaw.

The majority, however, did focus on what happened at the trial of the count that was properly before the jury (para 13-30). Their conclusion on the trial conduct contrasts with that of Kirby J, who held, para 96:

"… The impermissible inclusion of the second count in the indictment deprived the appellant of a trial that was free from any reference to this extraneous factor [images of bestiality]. It deprived him of the chance of avoiding this added complication in his trial. Specifically, it deprived him of the forensic choices that the separate trial of the offences referred to in the two counts would have entailed."

It is not clear what those "forensic choices" were, even on the basis that the evidence was not (as Kirby J held) admissible as similar fact. Even the mere fact that these images (whatever they might have depicted) were downloaded at a particular time seems to have been relevant to whether the images which were the subject of count 1 were downloaded by the accused (see majority judgment, para 26).

This case is interesting for its references to other cases, including English and United States decisions, where differences of opinion have occurred over how to decide whether an error has caused a trial to be unfair. It is now 99 years since England enacted what has been almost universally adopted as the "proviso", and one would have thought that, by now, appellate judges would have worked out a rational approach to its application, thereby promoting uniformity of result and minimising disagreements. My own view is that the basic problem is that judges have not got to grips with the meaning of the essential requirement of a fair trial. Until judges learn to define the characteristics of trial fairness and to apply them rationally, vagueness over the meaning of "substantial miscarriage of justice" will continue to make the results of appeals difficult to predict.

If one were to apply my own "Fair Trial Analysis", one would identify the following issues in Bounds. Since a fair trial is one where the law is accurately applied to facts determined without bias, the first question is, what errors of law occurred? It was common ground that count 2 should not have been in the indictment. Was the admission of evidence relevant to that count an error? This requires examination of the admissibility of the evidence as similar fact in relation to count 1. The judges in Bounds did not undertake this inquiry in detail, they simply announced their conclusions, and, as noted, Kirby J dissented on this. If it is correct that the evidence was admissible as similar fact, then the question is whether the judge’s direction to the jury on that topic was adequate to ensure that the evidence was not misused. If the evidence was not admissible as similar fact, then the question is whether the jury were adequately warned to ignore it in relation to count 1. The jury direction was not revealed in the judgments in Bounds. Then, in relation to the unbiased determination of the facts, the appellate court should ask whether the similar fact evidence – even if it was admissible – could have, by reason of its content, prejudiced the rational assessment of the other evidence. This point is addressed in Bounds, but again it was a point of difference. Kirby J thought that it could have caused prejudice, simply because of the risk of an averse reaction by any juror to the mere mention of bestiality. The majority, however, considered that the mention of bestiality (the jury were not shown any images) was of peripheral concern and would not have caused illegitimate prejudice. At the heart of this difference of judicial opinion is the extent to which it should be acknowledged that jurors may not approach their task rationally. This was mentioned as recently as the 19th of this month by the House of Lords in R v Coutts (blogged 21 July 2006), where Lord Bingham (with whom the others agreed), citing a High Court of Australia case, Gilbert v R (2000), said at para 20 that the jury room may not be a place of undeviating intellectual and logical rigour. Coutts and Bounds are cases that complement each other: in Coutts the concern was failure to include an offence in the indictment, whereas in Bounds the concern was improper inclusion of a count. Should the court be less sensitive to the risk of jury prejudice in one than in the other?

Friday, July 21, 2006

Fairer than you may want

The right to a fair trial is a right that the accused cannot waive.

This may seem a strange statement: why would the accused ever want to waive the right to a fair trial? Well, trial tactics are complicated things. If charged with one serious offence, the accused may prefer to hope for an outright acquittal on that rather than have the judge tell the jury that if they acquit on the serious charge they may then consider whether to convict on a lesser charge. A conviction on the lesser charge, and the consequence of imprisonment on that, may be something the accused would see as rendering his victory on the more serious charge Pyrrhic.

A fair trial is a trial conducted according to law. This means, as the House of Lords held this week in R v Coutts [2006] UKHL 39 (19 July 2006), that the jury must be fully informed about the alternatives available to it, whether either side want that or not. In Coutts, both sides agreed that the judge should not instruct the jury about the alternative of manslaughter, when the accused faced a solitary charge of murder. The Crown, confident that it would secure a conviction for murder, did not want the jury to instead convict for manslaughter, so, clothing its stance in the guise of a fairness objection, it argued that the accused was entitled to an acquittal if the jury had a doubt about the way the Crown had sought to prove its case for murder. The defence, having argued that the killing was accidental, did not want the risk of a conviction for manslaughter, because the sentence for that would, in the circumstances, be a lengthy term of imprisonment. Following the conviction for murder, the defence appealed, arguing that the judge should have directed the jury about manslaughter. The House of Lords upheld this argument and quashed the conviction, remitting the case so that a retrial could be considered.

Coutts establishes that fairness requires that the jury be fully informed about the law and the alternatives open for consideration in the particular case. Further, failure to inform the jury of the legal position amounts to a substantial miscarriage of justice. The appellate court does not enter into an inquiry about whether the jury only convicted the accused of the serious charge because it did not want him to walk free. To do that would be to engage in speculation. While a foundation of the system of trial by jury is the assumption that juries apply the directions on the law that judges give them (Lord Rodger, para 87), it is proper to recognise that the jury may be affected in its approach by the choices that it perceives as being available to it (an observation by Callinan J in the High Court of Australia case Gilbert v The Queen (2000) 201 CLR 414 para 101, quoted by Lord Bingham at para 20, Lord Hutton at 54, Lord Rodger at 88 and Lord Mance at 99).

Accordingly, the public interest in the administration of justice is best served if the judge leaves any obvious alternative offence to the jury irrespective of the wishes of counsel. Lord Bingham, with whom the other law lords agreed, put the requirement as follows (para 23):

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.

"24. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal."

Thursday, July 20, 2006

Public privacy

Courts may disagree over whether language is “grossly” offensive. In DPP v Collins [2006] UKHL 40 (19 July 2006) the House of Lords unanimously disagreed with two lower courts on this point. The defendant had left messages by telephone at his MP’s office, employing terms of racial abuse that were unquestionably offensive. The lower courts held that the messages did not cross the line between offensive and grossly offensive. The embarrassment of disagreeing with the lower courts was exacerbated because essentially the question whether the messages were “grossly” offensive was one of fact, to be determined by applying the standards of an open and just multi-racial society taking into account the context and all relevant circumstances (Lord Bingham, para 9) – standards which the lower courts should be particularly well placed to apply.

How had the lower courts gone wrong? Lord Bingham at para 13 concluded:

“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”

He agreed with Lord Carswell, who was a little more explicit about this (para 22):

“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "

The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).

Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:

127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”


The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.

Friday, June 30, 2006

Our case against you is secret ...

No one could be surprised that included in the guarantees recognised as indispensable by civilised peoples are the right, when on trial, to be present, and to be privy to the prosecution evidence. In Hamdan v Rumsfeld, 548 US 557 (2006), 29 June 2006 the United States Supreme Court held that these rights applied to detainees that the Government proposed to prosecute in special military commissions.

Stevens J, joined by Souter, Ginsburg and Breyer JJ, wrote, in an important footnote (p 71, n67):

"The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a "full and fair trial." Commission Order No. 1, ß6(D)(5)(b). But the Government suggests no circumstances in which it would be "fair" to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (" ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ") (quoting State v. Webb, 2 N. C. 103, 104(Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as "scarcely less important to the accused than the right of trial itself"); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) ("[t]he plea that evidence of guilt must be secret is abhorrent to free men" (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly."

There is here an obvious relevance to the law concerning the use of special advocates. Such advocates are used, for example, in England and Wales in relation to some immigration matters: see the Special Immigration Commission Act 1997[UK], and Parts 3, 4 and 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI 2003/1034. These procedures have been described as "an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner" (per Dominic Grieve, Conservative Member for Beaconsfield, Commons Hansard, 23 February 2005).

A special advocate procedure is planned in New Zealand in relation to whether a person is a risk to the security of the nation for the purposes of certification by the SIS and consequent expulsion.

Wednesday, June 28, 2006

The Ellis case and trial fairness

For a draft paper on the trial of Peter Ellis for sexual offending at the Christchurch Civic Creche, see my web site, and follow the links to more about me, and articles available on this site.