Monday, October 30, 2006
Perceptions of bias
Despite their almost constant preoccupation with the fairness of trials, some senior appellate courts still have difficulty in appreciating what fairness means. Last week, the European Court of Human Rights corrected a House of Lords decision in a case where the fairness of a trial was critical: Martin v United Kingdom [2006] ECHR 890 (24 October 2006).
In Martin, the accused (the applicant in the ECHR) had been tried by a Court Martial in Germany, although he was a British civilian. He came within the jurisdiction of the Court Martial because he was visiting a family member who was in the military at a base in Germany, at the time when the alleged offending, a murder, occurred. The jurisdictional arrangements complied with United Kingdom legislation. The German authorities had waived jurisdiction, and the Court Martial convened under UK law.
Characteristics of the military court that were important were that a superior officer presided over the 7 member tribunal, and only two members were civilians (from the United Kingdom).
The House of Lords had approached the issue of trial fairness by asking whether there had been any unfairness which might have rendered the verdict unsafe: see the extract from Lord Hope’s speech, quoted by the ECHR at para 20 of Martin. The error of this approach is the emphasis on pragmatism at the expense of formalism.
Fairness requires absence of bias, and even people who are “obviously” guilty - so that pragmatism requires conviction - must be tried by a court that is not biased against them - the formal requirement of fairness. The ECHR pointed out in para 42 of Martin that there are two aspects to impartiality: the tribunal must be subjectively free of bias, and there must be sufficient procedural guarantees to exclude any legitimate objective doubt about that.
The abstract jurisdictional criteria established in legislation were not a sufficient guarantee of absence of actual or perceived bias (para 44), as the issue had to be determined in the circumstances of each case. Here, the structure and procedure of the applicant’s Court Martial were sufficient to raise a legitimate fear as to its lack of independence and impartiality. The judgment does not particularise the evidence that supported this conclusion, but, interestingly, it holds that here, even the presence of a Vice-Judge Advocate General (a senior judge appointed by the Lord Chancellor, who could give the tribunal binding directions on the law) was insufficient: he did not have influence and involvement in the tribunal proceedings sufficient to guarantee the independence and impartiality of the applicant’s court-martial (para 52).
The ECHR declared a breach of Article 6 (the right to trial by a fair and independent tribunal) and awarded damages to the applicant. Subject to an appeal to the Grand Chamber, the conviction will be quashed pursuant to domestic law: Randall v R [2002] 1 WLR 2237, 2251 (PC): “The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”
Unfortunately, the judgment in Martin is insufficiently detailed to dispel some doubts about its correctness. If this Court Martial was unfair to the civilian accused, would the same proceedings have been unfair to an accused who viewed them a soldier? If the test for this sort of bias is whether an objective observer would have concerns about the fairness of the proceedings, should that observer be conceptualised as if he were in the military, or should he be a civilian? Should this characteristic of the observer change according to whether the proceedings are against a soldier or a civilian?
It may be that, in the circumstances of this case that are not revealed in the judgment, even an accused who was in the armed services would have had legitimate objective concerns about the fairness of the proceedings because of the dominance of the superior officer who presided.
In Martin, the accused (the applicant in the ECHR) had been tried by a Court Martial in Germany, although he was a British civilian. He came within the jurisdiction of the Court Martial because he was visiting a family member who was in the military at a base in Germany, at the time when the alleged offending, a murder, occurred. The jurisdictional arrangements complied with United Kingdom legislation. The German authorities had waived jurisdiction, and the Court Martial convened under UK law.
Characteristics of the military court that were important were that a superior officer presided over the 7 member tribunal, and only two members were civilians (from the United Kingdom).
The House of Lords had approached the issue of trial fairness by asking whether there had been any unfairness which might have rendered the verdict unsafe: see the extract from Lord Hope’s speech, quoted by the ECHR at para 20 of Martin. The error of this approach is the emphasis on pragmatism at the expense of formalism.
Fairness requires absence of bias, and even people who are “obviously” guilty - so that pragmatism requires conviction - must be tried by a court that is not biased against them - the formal requirement of fairness. The ECHR pointed out in para 42 of Martin that there are two aspects to impartiality: the tribunal must be subjectively free of bias, and there must be sufficient procedural guarantees to exclude any legitimate objective doubt about that.
The abstract jurisdictional criteria established in legislation were not a sufficient guarantee of absence of actual or perceived bias (para 44), as the issue had to be determined in the circumstances of each case. Here, the structure and procedure of the applicant’s Court Martial were sufficient to raise a legitimate fear as to its lack of independence and impartiality. The judgment does not particularise the evidence that supported this conclusion, but, interestingly, it holds that here, even the presence of a Vice-Judge Advocate General (a senior judge appointed by the Lord Chancellor, who could give the tribunal binding directions on the law) was insufficient: he did not have influence and involvement in the tribunal proceedings sufficient to guarantee the independence and impartiality of the applicant’s court-martial (para 52).
The ECHR declared a breach of Article 6 (the right to trial by a fair and independent tribunal) and awarded damages to the applicant. Subject to an appeal to the Grand Chamber, the conviction will be quashed pursuant to domestic law: Randall v R [2002] 1 WLR 2237, 2251 (PC): “The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”
Unfortunately, the judgment in Martin is insufficiently detailed to dispel some doubts about its correctness. If this Court Martial was unfair to the civilian accused, would the same proceedings have been unfair to an accused who viewed them a soldier? If the test for this sort of bias is whether an objective observer would have concerns about the fairness of the proceedings, should that observer be conceptualised as if he were in the military, or should he be a civilian? Should this characteristic of the observer change according to whether the proceedings are against a soldier or a civilian?
It may be that, in the circumstances of this case that are not revealed in the judgment, even an accused who was in the armed services would have had legitimate objective concerns about the fairness of the proceedings because of the dominance of the superior officer who presided.
Friday, October 27, 2006
"Perverse" acquittal, or "conscience" verdict?
One of the things that keeps appellate courts busy is the tendency of judges to overlook the fundamentals of the law. I noted one such fundamental in commenting on R v Wanhalla on 25 August 2006: the jury’s power to perversely acquit an accused means that it would be wrong for the judge to instruct the jury that they “must” convict if they find the case proved beyond reasonable doubt.
This very point was made yesterday by the Supreme Court of Canada: R v Krieger [2006] SCC 47 (26 October 2006). The Court ordered a retrial because, in directing the jury that they must convict, the judge had deprived the accused of the right to trial by jury. Except where the judge directs them to acquit, the verdict must be that of the jury. Depriving the accused of trial by jury was necessarily a miscarriage of justice and required the quashing of the conviction.
The Court approved the views to this effect of Sir Patrick (subsequently, Lord) Devlin in his book “The Judge” (1979), pp 142-143 and 157. He said, at 157, that it doesn’t matter how obvious it may be to the judge that the accused is guilty, the verdict must be that of the jury, and he called this, in an italicised passage, “the first and traditional protection that the law gives to an accused”. The second protection is that, on appeal, a conviction will be quashed if the judges find a “lurking doubt” that they consider the jury has overlooked. Devlin added: “…the second is an addition to the first and not a substitute for it.”
In Krieger, reference was made to Lord Mansfield’s observation in R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824:
“It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.”
I add that readers of Geoffrey Robertson’s “The Justice Game” (1998) will recall his remark that “[t]his remains the most significant feature of English criminal law.” The rule that the decision to convict can only be made by the jury operates, especially in politically-motivated prosecutions, to ensure that “the only enemies of the State who are put in prison are enemies of the people as well.”
That misdirections of this kind should occur reminds us that judges must not be allowed to lose sight of the fundamentals. See also my comments on R v Wang, blogged on 14 February 2005.
This very point was made yesterday by the Supreme Court of Canada: R v Krieger [2006] SCC 47 (26 October 2006). The Court ordered a retrial because, in directing the jury that they must convict, the judge had deprived the accused of the right to trial by jury. Except where the judge directs them to acquit, the verdict must be that of the jury. Depriving the accused of trial by jury was necessarily a miscarriage of justice and required the quashing of the conviction.
The Court approved the views to this effect of Sir Patrick (subsequently, Lord) Devlin in his book “The Judge” (1979), pp 142-143 and 157. He said, at 157, that it doesn’t matter how obvious it may be to the judge that the accused is guilty, the verdict must be that of the jury, and he called this, in an italicised passage, “the first and traditional protection that the law gives to an accused”. The second protection is that, on appeal, a conviction will be quashed if the judges find a “lurking doubt” that they consider the jury has overlooked. Devlin added: “…the second is an addition to the first and not a substitute for it.”
In Krieger, reference was made to Lord Mansfield’s observation in R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824:
“It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.”
I add that readers of Geoffrey Robertson’s “The Justice Game” (1998) will recall his remark that “[t]his remains the most significant feature of English criminal law.” The rule that the decision to convict can only be made by the jury operates, especially in politically-motivated prosecutions, to ensure that “the only enemies of the State who are put in prison are enemies of the people as well.”
That misdirections of this kind should occur reminds us that judges must not be allowed to lose sight of the fundamentals. See also my comments on R v Wang, blogged on 14 February 2005.
[Update: in 2015 Lord Judge referred to
perverse verdicts as constitutional safeguards against barbaric laws in a
discussion with Chief Justice Roberts on the 800th anniversary of
the sealing of the first issue of Magna Carta, available here on YouTube: view from time setting 37:58.]
Wednesday, October 18, 2006
"Unfair to try" or "to try unfairly"?
Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006) illustrates the difference between the questions, (i) whether the trial was, or would be, fair, and (ii) whether it would be fair to put the accused on trial. The case also illustrates how easy it is to confuse these questions.
In Mauritius, the right to a fair trial is expressed, in s 10(1) of the Constitution, in a phrase giving the right to a “fair hearing within a reasonable time by an independent and impartial court established by law”. This has given rise to the question whether an accused can only complain of delay if it has adversely affected his right to a fair hearing. (In contrast, the New Zealand Bill of Rights Act 1990, s 25(b), isolates the right to trial without undue delay, from the separate right to a fair hearing in s 25(a)).
This question, which also arises under Art 6(1) of the ECHR, was resolved by the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, where it was held that a breach of the right to a hearing without undue delay can be established without the accused having to show that the trial would be unfair. Consequences of a breach of each right need not, therefore, be the same. In Boolell the Privy Council noted that Lord Bingham in Attorney-General’s Reference (No 2 of 2001) had “quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432: "The right is to trial without undue delay; it is not a right not to be tried after undue delay."” That is to say, undue delay does not give rise to a right not to be tried at all.
On the question of remedies, the Privy Council in Boolell followed Attorney-General’s Reference (No 2 of 2001), holding that a stay of proceedings is not appropriate unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the accused (para 31).
I have emphasised the word “otherwise” here to make the point that trial unfairness is only a subset of the set of occasions where it would be unfair to try the accused. In para 38 of Boolell, Lord Carswell, delivering the judgment of their lordships, confuses this point. He deals with a submission that the trial was unfair by applying criteria relevant to fairness in the “otherwise” sense. The “test” – as Lord Carswell called it - as laid down by Lord Bingham at para 25 of Attorney-General’s Reference (No 2 of 2001), is:
“25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.”
Lord Bingham is not here talking about cases where the trial would be unfair. Lord Carswell’s slip highlights the fact that criteria for determining the fairness of a hearing have yet to be established. My view is that the fairness of a hearing is to be determined by whether it would involve a biased determination of the facts, or an inaccurate application of the law to the facts. Delay may give rise to an unfair trial if it results in the unavailability of witnesses or evidence that could assist the defence. The matters relied on by counsel for the appellant in Boolell, para 38, seem not to involve delay but rather to focus on aspects of the actual conduct of the trial (its length, its interruptions, restrictions imposed on the conduct of the defence, and comments made by the judge that suggested bias). The Privy Council may well have been correct to conclude that, in the circumstances of this case, these did not amount to trial unfairness. In holding that the appellant’s right to a trial within a reasonable time had been breached (para 37), the appropriate remedy was the declaration of the breach and the quashing of the sentence of imprisonment, with a fine being substituted, although complexities concerning how the quantum should be calculated are not explored.
In Mauritius, the right to a fair trial is expressed, in s 10(1) of the Constitution, in a phrase giving the right to a “fair hearing within a reasonable time by an independent and impartial court established by law”. This has given rise to the question whether an accused can only complain of delay if it has adversely affected his right to a fair hearing. (In contrast, the New Zealand Bill of Rights Act 1990, s 25(b), isolates the right to trial without undue delay, from the separate right to a fair hearing in s 25(a)).
This question, which also arises under Art 6(1) of the ECHR, was resolved by the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, where it was held that a breach of the right to a hearing without undue delay can be established without the accused having to show that the trial would be unfair. Consequences of a breach of each right need not, therefore, be the same. In Boolell the Privy Council noted that Lord Bingham in Attorney-General’s Reference (No 2 of 2001) had “quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432: "The right is to trial without undue delay; it is not a right not to be tried after undue delay."” That is to say, undue delay does not give rise to a right not to be tried at all.
On the question of remedies, the Privy Council in Boolell followed Attorney-General’s Reference (No 2 of 2001), holding that a stay of proceedings is not appropriate unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the accused (para 31).
I have emphasised the word “otherwise” here to make the point that trial unfairness is only a subset of the set of occasions where it would be unfair to try the accused. In para 38 of Boolell, Lord Carswell, delivering the judgment of their lordships, confuses this point. He deals with a submission that the trial was unfair by applying criteria relevant to fairness in the “otherwise” sense. The “test” – as Lord Carswell called it - as laid down by Lord Bingham at para 25 of Attorney-General’s Reference (No 2 of 2001), is:
“25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.”
Lord Bingham is not here talking about cases where the trial would be unfair. Lord Carswell’s slip highlights the fact that criteria for determining the fairness of a hearing have yet to be established. My view is that the fairness of a hearing is to be determined by whether it would involve a biased determination of the facts, or an inaccurate application of the law to the facts. Delay may give rise to an unfair trial if it results in the unavailability of witnesses or evidence that could assist the defence. The matters relied on by counsel for the appellant in Boolell, para 38, seem not to involve delay but rather to focus on aspects of the actual conduct of the trial (its length, its interruptions, restrictions imposed on the conduct of the defence, and comments made by the judge that suggested bias). The Privy Council may well have been correct to conclude that, in the circumstances of this case, these did not amount to trial unfairness. In holding that the appellant’s right to a trial within a reasonable time had been breached (para 37), the appropriate remedy was the declaration of the breach and the quashing of the sentence of imprisonment, with a fine being substituted, although complexities concerning how the quantum should be calculated are not explored.
Thursday, October 05, 2006
NZ criminal law may be fair!
Readers of these blogs will be pleased to see that criticisms of Moloney v New Zealand (see blog entry for 3 May 2006, and the article developed from that, “A little unfairness goes a long way” [2006] NZLJ 210) turned out to be essentially the reasons that an appeal from that decision was allowed today: New Zealand v Moloney [2006] FCAFC 143 (5 October 2006).
The Full Court (5 judges) of the Australian Federal Court held that the judge had been wrong to conclude that differences, as between New Zealand and Australia, in rules of procedure and evidence concerning the conduct of criminal trials, permitted the conclusion that a trial in New Zealand would be unfair. Overruling him, the Full Court made the following points:
It has been announced that the unsuccessful respondents in this case will seek leave to appeal to the High Court of Australia. [Update: on 16 October 2006 the High Court of Australia declined leave to appeal.]
The Full Court (5 judges) of the Australian Federal Court held that the judge had been wrong to conclude that differences, as between New Zealand and Australia, in rules of procedure and evidence concerning the conduct of criminal trials, permitted the conclusion that a trial in New Zealand would be unfair. Overruling him, the Full Court made the following points:
- The close relation between New Zealand and Australia, reflected in the abbreviated extradition procedure which is analogous to that which applies within Australia, permits an assumption of trial fairness in New Zealand (paras 2, 21, 22, 36, 37).
- The approach to warning juries in cases concerning historical allegations of sexual abuse is not significantly different as between Australia and New Zealand: both have the objective of a fair trial, and both recognise that warnings must be tailored to the circumstances of the trial. It was wrong to assume that a judge in New Zealand would not give a warning (212, 215, 216, 219, 221, 222, 224, 226).
- As far as trials involving multiple complainants are concerned, it is a matter for the trial judge in New Zealand to decide whether severance is appropriate or whether similar fact evidence is admissible. Such differences as there are between the laws of Australia and New Zealand on these points is little more than a different formulation of the judge's discretion to exclude unfairly prejudicial evidence. Conclusions about the likelihood of joint trials were unwarranted at this stage (228, 229, 231).
It has been announced that the unsuccessful respondents in this case will seek leave to appeal to the High Court of Australia. [Update: on 16 October 2006 the High Court of Australia declined leave to appeal.]
Challenging detention pending bail
A prompt and automatic opportunity to challenge the lawfulness of detention is a key provision to prevent arbitrary detention and to protect the person against the risk of ill-treatment and abuse of power by officials: McKay v United Kingdom [GC] [2006] ECHR 820 (3 October 2006). This is distinct from the opportunity to apply for bail, which must also be afforded within a reasonable time. If the person is arbitrarily detained, he must be released immediately and no question of his being encumbered with bail obligations arises.
Sometimes people who are arrested are brought before judicial officers who lack the power to inquire into the lawfulness of detention. In McKay the Grand Chamber observed that this had occurred in some cases from Malta (para 37).
A question arises, for people in New Zealand, whether the Habeas Corpus Act 2001, which requires that these applications be made to judges of the High Court, complies with the equivalent right to that considered in McKay. This right, in Article 9 para 4 of the ICCPR, and in s 23(c) of the Bill of Rights Act 1990, the former being unspecific as to promptness, while the latter requires absence of delay. The risk of non-compliance with this right arises because High Court judges are not the judges before whom a person appears initially. Of course, once the High Court is aware of an application under the Habeas Corpus Act 2001, it gives the matter top priority (s 9), but a lapse of time may nevertheless occur.
For example, a person arrested on a Friday may not be brought before a court until Saturday when a community magistrate, District Court Registrar, or Justice of the Peace may be sitting. There may be no opportunity to provide legal advice other than through a duty solicitor. The person will, if held in custody, be remanded to the following Monday, when the judicial official will be a District Court Judge. Legal aid counsel may be assigned on that occasion, but in some cases a bail application will not be able to be heard. For example, a person who has a previous conviction for a drug dealing offence can only apply to the High Court for bail on a fresh drug dealing charge: Bail Act 2000, s 16. Some High Court Registries restrict bail applications to 2 afternoons a week, and not all High Courts in the country have judges available throughout the year.
There is thus the risk of breach of s 23(c) of the Bill of Rights:
“23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.”
There is a difference here between the expression “without delay” (admittedly, more strict than is required by ICCPR), and the phrase in s 23(3) “as soon as possible”:
“(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.”
In McKay, the ECtHR held, para 33:
“The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, § 62, where periods of more than four days in detention without appearance before a judge were in violation of Article 5 § 3, even in the special context of terrorist investigations).”
And at, para 34, the Grand Chamber emphasised the significant procedural point that review of the legality of detention must be automatic:
“The review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 which gives a detained person the right to apply for release [for example, on bail]. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (e.g. Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 III).”
Periods of delay of more than four days between commencement of detention and review of the legality of the detention will be unlikely to meet international standards. There may be a need to extend powers of review, akin to habeas corpus applications, to the court of first instance, with corresponding enhancement, if necessary, of judicial training.
Sometimes people who are arrested are brought before judicial officers who lack the power to inquire into the lawfulness of detention. In McKay the Grand Chamber observed that this had occurred in some cases from Malta (para 37).
A question arises, for people in New Zealand, whether the Habeas Corpus Act 2001, which requires that these applications be made to judges of the High Court, complies with the equivalent right to that considered in McKay. This right, in Article 9 para 4 of the ICCPR, and in s 23(c) of the Bill of Rights Act 1990, the former being unspecific as to promptness, while the latter requires absence of delay. The risk of non-compliance with this right arises because High Court judges are not the judges before whom a person appears initially. Of course, once the High Court is aware of an application under the Habeas Corpus Act 2001, it gives the matter top priority (s 9), but a lapse of time may nevertheless occur.
For example, a person arrested on a Friday may not be brought before a court until Saturday when a community magistrate, District Court Registrar, or Justice of the Peace may be sitting. There may be no opportunity to provide legal advice other than through a duty solicitor. The person will, if held in custody, be remanded to the following Monday, when the judicial official will be a District Court Judge. Legal aid counsel may be assigned on that occasion, but in some cases a bail application will not be able to be heard. For example, a person who has a previous conviction for a drug dealing offence can only apply to the High Court for bail on a fresh drug dealing charge: Bail Act 2000, s 16. Some High Court Registries restrict bail applications to 2 afternoons a week, and not all High Courts in the country have judges available throughout the year.
There is thus the risk of breach of s 23(c) of the Bill of Rights:
“23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.”
There is a difference here between the expression “without delay” (admittedly, more strict than is required by ICCPR), and the phrase in s 23(3) “as soon as possible”:
“(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.”
In McKay, the ECtHR held, para 33:
“The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, § 62, where periods of more than four days in detention without appearance before a judge were in violation of Article 5 § 3, even in the special context of terrorist investigations).”
And at, para 34, the Grand Chamber emphasised the significant procedural point that review of the legality of detention must be automatic:
“The review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 which gives a detained person the right to apply for release [for example, on bail]. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (e.g. Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 III).”
Periods of delay of more than four days between commencement of detention and review of the legality of the detention will be unlikely to meet international standards. There may be a need to extend powers of review, akin to habeas corpus applications, to the court of first instance, with corresponding enhancement, if necessary, of judicial training.
Monday, October 02, 2006
Going international
Strip searches that are not carried out in compliance with proper safeguards to protect the dignity of those being searched may attract remedies under international law. This occurred in Wainwright v United Kingdom [2006] ECHR 807 (26 September 2006), where the European Court of Human Rights awarded damages, which could not be obtained under domestic law.
Wainright concerned strip searches of visitors to a prison, carried out with the aim of preventing the entry of drugs. The officials who carried out the searches did not comply with rules that had been promulgated, and therefore they were not within the terms of Article 8, para 2, of the European Convention on Human Rights as being “necessary in a democratic society”. In reaching this conclusion the European Court noted that domestic law in the UK, as held in the House of Lords decision in this case, did not provide a remedy for negligent breach of privacy. This deficiency amounted to a breach of Article 13 of ECHR and the Court awarded damages. The actual sums were fairly modest, the Court noting that it does not make aggravated or exemplary damages awards.
In other countries, issues of this sort may be dealt with by the United Nations Committee on Human Rights, if the relevant domestic law did not provide a remedy. The International Convention on Civil and Political Rights has provisions concerning the right not to be subjected to inhuman or degrading treatment (Article 7), and the right to have one’s private life respected (Art 17). The First Optional Protocol to the ICCPR enables individuals claiming to be victims of violations of ICCPR rights to bring communications to the Human Rights Committee, which may, ultimately, “forward its views to the State Party concerned and to the individual” (Art 5 para 4). While this falls short of the corresponding declaration in Art 13 of ECHR that “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”, and Art 41 “…the Court [ECtHR] shall, if necessary, afford just satisfaction to the injured party”, the forwarding by the Human Rights Committee of its views is a significant matter.
In Taunoa v Attorney-General [2006] NZSC 30 (12 April 2006) the Supreme Court granted leave to appeal to four appellants who claimed that, as prisoners, they had been subjected to breaches of s 9 and 27 of the New Zealand Bill of Rights Act 1990, the questions being whether there had been such breaches and, if so, what remedy was appropriate. One of the preconditions for bringing a communication to the Human Rights Committee is that domestic remedies, if any, must be exhausted. So, if unsuccessful before the Supreme Court, Taunoa may enter the international arena.
Wainright concerned strip searches of visitors to a prison, carried out with the aim of preventing the entry of drugs. The officials who carried out the searches did not comply with rules that had been promulgated, and therefore they were not within the terms of Article 8, para 2, of the European Convention on Human Rights as being “necessary in a democratic society”. In reaching this conclusion the European Court noted that domestic law in the UK, as held in the House of Lords decision in this case, did not provide a remedy for negligent breach of privacy. This deficiency amounted to a breach of Article 13 of ECHR and the Court awarded damages. The actual sums were fairly modest, the Court noting that it does not make aggravated or exemplary damages awards.
In other countries, issues of this sort may be dealt with by the United Nations Committee on Human Rights, if the relevant domestic law did not provide a remedy. The International Convention on Civil and Political Rights has provisions concerning the right not to be subjected to inhuman or degrading treatment (Article 7), and the right to have one’s private life respected (Art 17). The First Optional Protocol to the ICCPR enables individuals claiming to be victims of violations of ICCPR rights to bring communications to the Human Rights Committee, which may, ultimately, “forward its views to the State Party concerned and to the individual” (Art 5 para 4). While this falls short of the corresponding declaration in Art 13 of ECHR that “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”, and Art 41 “…the Court [ECtHR] shall, if necessary, afford just satisfaction to the injured party”, the forwarding by the Human Rights Committee of its views is a significant matter.
In Taunoa v Attorney-General [2006] NZSC 30 (12 April 2006) the Supreme Court granted leave to appeal to four appellants who claimed that, as prisoners, they had been subjected to breaches of s 9 and 27 of the New Zealand Bill of Rights Act 1990, the questions being whether there had been such breaches and, if so, what remedy was appropriate. One of the preconditions for bringing a communication to the Human Rights Committee is that domestic remedies, if any, must be exhausted. So, if unsuccessful before the Supreme Court, Taunoa may enter the international arena.
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:
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.
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.
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.
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