Overview (2) – Standards of proof

[I have seen that this is an oft-visited posting. For revision and updates, check the link to the introductory essay. Other entries this month are compiled there. Where a case is named with an associated date, that date refers to another posting on this site.]

The expression "standard" of proof refers to the level of proof required, and is not to be confused with the expression "burden" of proof, which refers to which side has to prove an issue. The usage is, who has the burden, and to what standard?

There are at least two standards of proof in criminal law: proof beyond reasonable doubt, and proof on the balance of probabilities. Sometimes more standards are recognised: the standard of a reasonable doubt, as where a presumption applies, rebuttable by proof to the contrary (this is sometimes called, confusingly in the light of the usage I have set out above, the evidential "burden"); and a flexible approach to the balance of probabilities, where many standards or levels of proof might be recognised as appropriate depending on the seriousness of the issue. As to proof of a reasonable doubt, this is not recognised as a standard in New Zealand (R v Hansen, 19 September 2005 and 20 February 2007) but it is in the United Kingdom (R v Lambert 19 September 2005, 12 December 2008, and s 2 Drugs Act 2005[UK] which is yet to be brought into force by a Commencement Order). Other standards are sometimes referred to on appeals, where the appellant must satisfy the court that in the absence of an error at trial there was a "real chance" of a more favourable verdict. This "real chance" is less than on the balance of probabilities (Chamberlains v Lai 11 September 2006).

How do we know when a standard has been reached? At this point Montaigne again intrudes his mischievous little pen:

"'As the scale of the balance must necessarily sink when weights are placed upon it, so must the mind yield to clear proof' [Cicero, Academica, II, 12]. The emptier a mind is, and the less counterpoise it has, the more easily it sinks under the weight of the first argument. That is why children, the common people, women, and the sick are particularly apt to be led by the ears."

Montaigne, Essays, Book One: Chapter 27, above pp 86 – 87.

Naughty Michel.

Courts are notoriously unwilling to assist juries by elaborating on the meaning of "beyond reasonable doubt". This is shameful. It is one of the law's little dishonesties that favour the prosecution. It is said that it is no use likening the standard to a given probability of proof, because people disagree on what the probabilities are. This is daft. The variation in what people think proof beyond reasonable doubt equates to in probabilities is astonishing (R v Wanhalla 25 August 2006). If people have not even a general idea of what beyond reasonable doubt means, how can they decide whether proof meets that standard?

Aversion to mathematical analogies is one of the law's shameful inadequacies. It reflects the stage in school when pupils, at age about 14, are divided into "arts" and "science" streams. Lawyers and judges are usually from an arts background, and have been brought up to think they cannot achieve an understanding of mathematics or science. At the same time, and ironically, lawyers and judges pride themselves on their logical reasoning. It will be interesting to see what moves are made in this area by the High Court of Australia now that it has a Chief Justice (Bob French) who has a science background. (Naturally Australian counsel are alert to the need for change: my thanks to Jeremy Gans for drawing my attention to Clarke v R [2009] HCA Trans 336 (11 December 2009) in which special leave to appeal was refused by Crennan and Bell JJ.)

Areas of uncertainty exist. There is some doubt as to whether a standard of proof applies to a "risk", such as the risk of danger to the public if a person is released on bail (O v Crown Court at Harrow 31 July 2006) or on parole (Re McClean 19 July 2005). There is also doubt as to what, if any, standard of proof applies to proof of similar facts (R v Perrier and R v Holtz 14 October 2004; HML v R 26 April 2008). Sometimes the choice of standard appears inappropriate, such as the application of only the balance of probabilities to proof that evidence tendered to the court was not obtained by torture in another country (A v Secretary of State for the Home Department 9 December 2005), and there is still work to be done on what if any standard applies to the likelihood of unfair trial or of inhumane treatment in a foreign jurisdiction if the person is extradited (Gomes v Trinidad and Tobago 1 May 2009).

It seems intuitive that serious issues should require proof to a higher standard than issues that are less serious. This leads to difficulties where the law insists that a standard, usually the balance of probabilities, is fixed. The Supreme Court of Canada does not acknowledge that the standard is flexible, and it maintains that the degree of caution with which proof is assessed is the same whether the issue is serious or less so: FH v McDougall 19 October 2008. The opposite position is taken in the Strasbourg court: Saadi v Italy 11 December 2006, and this is probably the same as that taken in New Zealand: Z v Dental Complaints Assessment Committee 25 July 2008.

Another area where discussion of standard of proof has occurred is the fundamental requirement for evidence to be "relevant" before it can be admissible. Relevance usually means having a tendency to prove a matter of consequence to the determination of the proceedings. Variations on that formula occur, but the essence is "a tendency to prove". Serious discussions occur in the academic literature about what this means. What if an item of evidence has a small tendency to prove one thing, but a greater tendency to prove another? Is it relevant as evidence of the first thing? What if the item of evidence has only a very slight tendency to prove a matter in issue? In Bain v R 12 June 2009 the Supreme Court of New Zealand split on whether indistinct sounds were relevant on a recorded telephone call, the majority holding that to establish relevance it is necessary that the interpretation of the evidence advanced by its proponent be "reasonably" open or available. Further thought was given to relevance in Wi v R (see update to note for 4 July 2008) where the accused sought to adduce evidence that he had no previous convictions. This sort of problem calls for statistical analysis, but the New Zealand Supreme Court did not take that opportunity.

Overview (1) – Interpreting the proviso

This introductory part continues with my overview of important topics that are often addressed by the appellate courts in criminal cases. Where I refer to cases with accompanying dates, those are dates of blog postings on the Blogger site; on the WordPress site the dates may be a day out due to clock settings on the servers.

First overview topic ...

Interpreting the proviso – what is a "substantial miscarriage of justice"?

For around 100 years courts have dealt with criminal appeals by determining whether an error in the trial court amounted to a "substantial miscarriage of justice", but very little of that time has been spent examining what that phrase means. It has been found to be a difficult concept. Some courts have tried to achieve clarity on a case-by-case basis, but the alternatives of legislative change (in the UK since 1995 the criterion has been whether the conviction is "unsafe"), and of ignoring the recent judicial efforts by going back to fundamental statutory interpretation, have also been taken.

Courts that continue to address the meaning of substantial miscarriage of justice identify one characteristic as whether the error could have affected the outcome of the trial in a way adverse to the accused. This leads to the further question: does the appellate court ask whether the jury at trial could have reached a different conclusion, or does it ask whether it – the appellate court – would have reached that different conclusion? There is a split between courts according to which answer they give to that question.

The Privy Council has remained faithful to the traditional view that the answer is that the appellate court asks whether the jury could have reached a different conclusion. The High Court of Australia has changed its approach (Weiss, noted 16 January 2006) and, scrapping the case law and returning to principles of statutory interpretation, it decided that the appellate court asks whether it itself could have reached a different conclusion. The Supreme Court of New Zealand has reacted against the Privy Council's traditional treatment of Bain (see, for example, note for 9 July 2009) by adopting (in Matenga 20 July 2009) much of the High Court of Australia's new approach. In turn, on a subsequent appeal from New Zealand (Barlow 9 July 2009), the Privy Council has felt itself obliged to follow the new line but has emphasised that under this new approach the result in Bain would have been the same. The lingering problem for subsequent would-be appellants is how to get the Supreme Court to hear an appeal if it is based only on advocating a different interpretation of the evidence from that taken by the Court of Appeal.

Independent of the effect on the outcome of the trial, another characteristic of a substantial miscarriage of justice is that the error at trial deprived the accused of a fair hearing. The Privy Council made the right to a fair hearing absolute, and that is uncontroversial now, although before then another approach, in which the accused's right to a fair hearing could have been balanced against the rights of victims and of society, was possible. It is one thing to hold that the right to a fair hearing is absolute, but what is a "fair" hearing?

The meaning of fair hearing will need to be consistent with the place of that concept in the "substantial miscarriage of justice" model. The model that has emerged – and which may well be unintended – in Matenga is that the first question is whether the hearing was fair; if it was, the second question is whether the result of the hearing may have been different in the absence of the error. At first glance this Matenga model sounds fine: it places fairness of hearing as the primary requirement, and that looks like being an appropriate reflection of its quality of absoluteness. It requires the appeal to be allowed if the trial may have been unfair. But the difficulty is, what does fair trial mean if the trial may have been fair but also may have contained an error that amounted to a substantial miscarriage of justice? Logically, it seems odd to make the set of fair trials intersect with the set of trials involving a substantial miscarriage of justice.

A clearer concept of a fair hearing would require a different relationship between fairness and substantial miscarriage of justice. Under this model, a fair trial would be one in which there was no substantial miscarriage of justice, and that means one in which the law was properly applied to facts that had been determined impartially. Here, an impartial determination of facts presupposes an unbiased tribunal and also a tribunal that is not deflected from impartiality by errors of law. There is thus room for some errors of law, and it is usual to recognise that perfection is not always attained, but errors of law that affect the impartial determination of facts are not permitted. Nor are errors of law in applying the substantive law to properly determined facts, if such errors may have affected the result in a way adverse to the appellant. A trial may seem to have been fair but afterwards fresh evidence may cast doubt on the correctness of the verdict; in such cases there would be a substantial miscarriage of justice, albeit with the trial only having been retrospectively unfair, and the appeal would have to be allowed.

Introduction (4) – the quest for clarity

How wonderful it would be if laws could be simple. The quest for simplicity struggles against the head wind of reality: life is complicated. Laws have to be applied in individual cases, often to facts that were never anticipated by legislators. It is inevitable that even simple laws will accrue complex shades of meaning as judges adapt them to meet the requirements of justice in particular cases in accordance with an imagined legislative intent.

"The truth is that a close knowledge of the facts is essential, not because of the precedent system, but as a prerequisite to doing justice in the particular case. The facts are the fount of individual justice."

EW Thomas, The Judicial Process (2005) p 321.

If simplicity is an impossible goal, clarity is not. Clear laws are essential, no matter how complicated they may have to be. There has to be a lot of law, so at least it should be clear law. Otherwise,

"As we once suffered from crimes, so now we are suffering from laws."

Tacitus, Annals, III, XXV, quoted by Montaigne, Essays, Book Three, Chapter 13.

There is a risk that

"Anything that is divided into minute grains becomes confused."

Seneca, Letters, LXXXIX, quoted by Montaigne, ibid.

The counter-measure is the quest for clarity.

Montaigne's opinion of laws could have been written, not in the sixteenth century, but today:

"Now the laws maintain their credit, not because they are just, but because they are laws. This is the mystical basis of their authority; they have no other. And this serves them well. They are often made by fools, and more often by men who, out of hatred for equality, are lacking in equity, but always by men: vain and unstable creators. There is nothing so grossly and widely, nor so ordinarily faulty as the laws."

Montaigne, ibid.

Schopenhauer's advice to writers needs to be borne in mind by law makers – legislators and judges - as well as by law teachers, students and law commentators:

"Obscurity and vagueness of expression is always and everywhere a very bad sign: for in ninety-nine cases out of a hundred it derives from vagueness of thought, which in turn comes from an original incongruity and inconsistency in the thought itself, and thus from its falsity. If a true thought arises in a head it will immediately strive after clarity and will soon achieve it: what is clearly thought, however, easily finds the expression appropriate to it. The thoughts a man is capable of always express themselves in clear, comprehensible and unambiguous words. Those who put together difficult, obscure, involved, ambiguous discourses do not really know what they want to say: they have no more than a vague consciousness of it which is only struggling towards a thought: often, however, they also want to conceal from themselves and others that they actually have nothing to say."

Schopenhauer, "On books and writing" in Essays and Aphorisms, above pp 204-205.

Much of legal discourse requires clarity about things that are not absolute. The exercise of discretion, judgment, requires a relinquishing of faith in absolutes. Petulant old (at 42 years) Nietzsche reminds us:

"Really, why should we be forced to assume that there is an essential difference between 'true' and 'false' in the first place? Isn't it enough to assume that there are degrees of apparency and, so to speak, lighter and darker shadows and hues of appearance – different valeurs
[values], to use the language of painters?"

Nietzsche, Beyond Good and Evil, above p 35.

So, don't be afraid of complexity, but strive for clarity.

"Everything that can be thought at all can be thought clearly. Everything that can be put into words can be put clearly."

Ludwig Wittgenstein, Tractatus Logico-Philosophicus, para 4.116.

Introduction (3) – The law teachers

Having described appellate judges as being happily regressed to studious habits, I should turn to consider the law teachers. Academic life has changed, probably rather a lot, since Benson, who was in 1906 a Fellow of Magdalene College at Cambridge, described his day:

"My own occupations, such as they are, fill the hours from breakfast to luncheon and from tea to dinner; men of sedentary lives, who do a good deal of brain-work, find an hour or two of exercise and fresh air a necessity in the afternoon."

AC Benson, From a College Window (1906), p 72.

I first read those bewitching words as an 18 year old undergraduate. A little impractical though they may be, they reflect the romantic ideal of the scholarly life. The reality is hugely different. Nietzsche was, as one would expect, scornful of scholars:

"Every age has invented its own divine type of naivete, which other periods may find enviable – and how much naivete, how much admirable, childlike, and endlessly foolish naivete lies in the scholar's faith in his own superiority, in his good conscience for being tolerant, in the simple clueless confidence with which he instinctively treats the religious person as an inferior and lower type, one that he himself has grown away from, grown beyond, grown above – he, the presumptuous little dwarf and vulgarian, the diligent darting headworker and handworker of 'ideas', of 'modern ideas'!"

F Nietzsche, Beyond Good and Evil (1886), Trans. M Faber, Oxford World's Classics 1998, pp 52-53.

Well, Benson was certainly not that sort of scholar. Nietzsche did try to say some good things about scholars ...

"... what is a man of learning? A common sort of man, first of all, with a common man's virtues, that is to say, neither masterful nor authoritative nor even self-sufficient. He is industrious, patiently joining the rank and file, conforming and moderate in his abilities and needs."

Ibid, p 96.

But those good sentiments didn't last the whole paragraph:

"... he is rich in petty envy and has a lynx-eye for what is base in those other natures whose heights he is unable to reach. ... The worst and most dangerous things that a scholar is capable of come from the instinct of his type to mediocrity ... ."

Ibid, pp 96-97.

Montaigne too thought that scholars sink beneath the load that they have taken up:

" ... That is why we see so many inadequate minds among scholars; more, in fact, than of the other kind. They would have made good farmers, good tradesmen, good craftsmen; their natural strength was cut to that measure.

" Learning is a thing of great weight, and they collapse under it; their understanding is not powerful or adroit enough to display and distribute that rich and potent material, to make use of it and get help from it."

Montaigne, Essays, Book Three, Chapter 8, above p 297.

I suppose things have improved a bit, due to the commercialisation of tertiary education and the beneficial effects of competition among universities for status, among students for grades, and among graduates for employment. High educational standards are in high demand. Students, especially those paying high fees, demand excellence in their teachers. The grades awarded to students can be seen as a reflection of the teachers' ability to teach, as one of Dershowitz's teachers admitted (above, p 70). Dershowitz also notes (pp 105-106) that if law teachers lack experience in practice they cannot adequately teach the practical skills sought by employers.

Is scholarly writing by law teachers only of use to students and appellate judges?

Posner observes that legal scholarship in general has as a marked characteristic a weak sense of fact (Overcoming Law, 1995, p 172). Also,

"The academic usually does not attend oral argument or even read the briefs in the cases that he writes about or teaches. Naturally, therefore, he tends to ascribe more importance to the opinion, to its reasoning, its rhetoric, and so forth, than to the decision itself. Yet these are the secondary factors for most judges."

Richard Posner, Overcoming Law, above, pp 129-130.

Academics, it seems, fail to appreciate the judicial point of view:

"Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive. This sense is shared even by appellate judges, engaged in the quasi-scholarly work of opinion writing, including appellate judges appointed from the professoriat."

Richard Posner, How Judges Think (2008), p 205.

He notes that "law schools still have a long way to go to overcome the shameful aversion of most law students to math, statistics, science, and technology" (ibid, p 209). Constructive legal scholarship would get to grips with tidying up the "messy work product of judges and legislators" by "synthesis, analysis, restatement, and critique" (p 210).

"It falls to the law professors to clean up after the judges by making explicit in treatises, articles, and restatements the rules implicit in the various lines of cases, identifying outliers, explicating policy grounds, and charting the path of future development. This type of scholarship resembles appellate judging because it is the kind of thing one could imagine the judges themselves doing had they the time and the specialised knowledge."

Richard Posner, How Judges Think (2008), p 211.

I have relied heavily on Posner's views, as he is an appellate judge, and as a practitioner I only rarely look at academic writing. My impression is that it would be very unusual for counsel to cite academic writing (other than statute-commentary text books) in written submissions. Judges sometimes cite academic articles, but I - perhaps unfairly - perceive an element of cronyism in that.

Be that as it may, the conclusion I draw from these various thoughts is that law would best be taught by retired appellate judges.

Introduction (2) On judges

It is not unusual for a lawyer whose case on appeal is rejected to think that the judges have twisted the facts to suit that result. Montaigne, although not talking specifically about judges, suggested this sort of twisting is a product of intelligence:

"Men of intelligence notice more things and view them more carefully, but they comment on them; and to establish and substantiate their interpretation, they cannot refrain from altering the facts a little. They never present things just as they are but twist and disguise them to conform to the point of view from which they have seen them; and to gain credence for their opinion and make it attractive, they do not mind adding something of their own, or extending and amplifying."

Montaigne, "On Cannibals", Essays Book One Chapter 31, above p 108.

The style that Montaigne thought appropriate for advocates compliments this judicial twisting of the facts. It gives the judge as much as possible to work with. It is the style he attributed to Cicero: long drawn-out preliminaries including preambles, definitions, classifications and etymologies, time-wasting dissections and beatings about the bush,

"Cicero's way is right for addressing a judge whom one wishes to convince by fair means or foul, or for using on children, and the common people, with whom nothing must be left unsaid, in the hope that something will hit the mark."

Montaigne, "On Books" Essays Book Two, Chapter 10, above p 166.

Today this technique extends to the filing of overly prolix written submissions. It is as if the more that is said, the more likely it is that the judge will agree with something that is said.

Modern commentators can be even less charitable about judicial fact finding. Alan Dershowitz asserts that the political nature of judicial appointments in the United States means that judges who wish to be promoted should side against criminals:

"The heavy thumb of careerism is on the scale of justice in nearly every criminal case, certainly in high-profile cases involving unpopular defendants."

Dershowitz, Letters to a Young Lawyer, 2001, p 120.

Richard Posner complains that

"Too many of our judicial opinions contain unexamined assumptions, conventional and perhaps shallow pieties, and confident assertions bottomed on prejudice and folklore."

Posner, The Problems of Jurisprudence, 1990, p 97.

He also observes that

"Appellate judges in our system often can conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents."

Posner, How Judges Think 2008, p 144.

Montaigne's observation on the way intelligent people tend to think could have been made, not 500 years ago, but today. Human nature can lead judges to find the facts to be as they want them to be. The appellate judges, who do not usually hear oral evidence, have, despite their protestations to the contrary, as much power to evaluate the evidence and to criticise a lower court's reasoning as the fact-finding courts have power in the guise of assessment of credibility.

The deference that appellate judges profess for the factual determinations of lower courts may be as sham as the deference given to judges by counsel. Deference attaches to the power exercised by judges, and is just as transient.

"Like that accorded to wealthy people, this deference is of the shallowest kind: as soon as the judge loses office, as soon as the wealthy person loses money, the deference ceases. Sensitive people realize this, but it does not eliminate the pleasure of being treated in a respectful manner. The republican simplicity of manners – the "I'm no better than the next guy" deportment – that most American judges affect is intended to be admired rather than to be taken seriously. Judges receive deference because they have power, and the power resides in their votes. They don't have much power (Supreme Court Justices are an important exception, and the petty tyranny of the trial judge is well known) and they are not much deferred to (with the same exceptions). But such deference as they do receive comes from their being, like wealthy people, more powerful than most people, not from being – like athletes, popular entertainers, war heroes, saints, and scientists – admired. Most judges are quickly forgotten after they leave office."

Richard Posner, Overcoming Law (1995) pp 120-121.

The difference in manners between the friendly informality of the superior court judges and the petty tyranny that is sometimes seen in the lower courts is probably universal. Working conditions vary, and the highly pressured muddle of lower court proceedings may contribute to a judge's bad manners. So too may inability to cope:

"A man who overestimates his capacities is apt to grow impatient, and even tyrannical, in the presence of difficulties."

AC Benson, From a College Window (1906), p 276.

The kind of judge who is suited to appellate work may have a personality that is not naturally given to unpleasantness, or that is not inclined to react to high pressure and disorder by unpleasantness:

" ... judging, especially at the appellate level, is an introvert's profession ..."

Richard Posner, How Judges Think (2008), p 137.

It may be that the pleasantness of high level judges is due, apart from their indulgence in the hypocrisy of a "republican simplicity of manners" or their relatively orderly and unpressured working conditions, to their having regressed to the kind of work they did at law school. Judgment writing is a scholarly activity, and the level of scholarship is often higher than that attained by the law teachers. This brings me to my point of view on these judges: they are scholars. Sometimes they are overeager to show their cleverness, especially when promotion may be a possibility. Usually they are like ambitious honours students.

Judges at the appellate levels have an educative function. Their judgments are often like extracts from text books or specialist treatises, and as such they are designed to be studied. Some of us do study them.

Introduction (1) – the point of view

"To find a congenial subject, and to express that subject as lucidly, as sincerely, as frankly as possible, appears to me to be the most delightful occupation in the world."

AC Benson, "From a College Window" (1906) p 208

Benson's subject was human nature, and this book is required reading for any educated person. My congenial subject is criminal law, and my highly technical approach to it will be of interest to only a few. I have tried here to describe its recent developments lucidly and sincerely, but not necessarily as frankly as I could have. This is not the occasion for absolute frankness, for the law of contempt must be borne in mind, and it is more sensible to confine myself to the "delightful occupation" of attaining mastery of the subject. But first things first. What do some of western civilisation's really wise guys have to say about tackling a subject? Schopenhauer described the process of attaining mastery:

"... only through ordering what you know by comparing every truth with every other truth can you take complete possession of your knowledge and get it into your power. You can think about only what you know, so you ought to learn something; on the other hand, you can only know what you have thought about."

A Schopenhauer, "On thinking for yourself" in Essays and Aphorisms (trans.RJ Hollingdale, Penguin Classics 1970) p 89

My aim is to learn what judges have said about the law, to think about those dicta, and to compare the emergent "truths" in order to make the subject mine. In considering the opinions of judges it is more important to be sincere – that is, honest - and respectful than it is to be frank.

"One of the many excellent customs of our ancestors was their invariably respectful treatment of experts in the interpretation of our excellent law."

Cicero, "On Duties (II)", in Cicero: On the Good Life (trans. Michael Grant, Penguin Classics 1971) p 156.

Cicero also said, controversially, that it is more honourable for a lawyer to defend than to prosecute (ibid, p 145). My opinion is that when they are done properly both prosecuting and defending are equally honourable. Neither role necessarily requires frankness but both involve respect. It is apt to consider Montaigne's observation:

"It suits our imagination better to think of a craftsman on the close-stool or on top of his wife, than of a Chief Justice, venerable for his bearing and his talents, in the same position."

Michel de Montaigne, "On Repentance", in Essays (trans. JM Cohen, Penguin Books 1958) p 241.

Yes, judges defecate and copulate, some perhaps not as much as they should, but I am not here concerned with judges as people. I do not aim to inquire into whatever intrigues and stratagems may be found between the lines of their decisions. At the same time, I am not a naive toady. Like Schopenhauer (above, p 218), I concede a superior judgment to nobody. And the application of that judgment to the work of judges is an intense intellectual exercise, and like all such exercises is "the most wonderful spiritual nourishment in the world" (Cicero, "Discussions at Tusculum V", above p 87).

And now for something completely different ...

Posts to this site will continue. There will be a new approach. Instead of a commentary on new cases as they are decided, I will post occasional observations on topics which should be of interest to advanced students and practitioners.

Now we are five

Five years of blogging!

That concludes my ongoing commentary, but I may occasionally add updates to particular entries. To locate these, search this site for "Update"; if the search function isn't working, try the alternative site (link on right).

Disclosure of warnings and diversions

It may be necessary for the prosecution to disclose to the defence information about prosecution witnesses concerning warnings that they have received from the police about their conduct, and about measures alternative to prosecution (eg diversion) that such witnesses have undergone: HM Advocate v Murtagh [2009] UKPC 36 (3 August 2009), para 40(iv).

Such disclosure would be required if, as with any criminal convictions, that information would be material in the sense that it would either undermine the case for the prosecution or assist the case for the defence.

The decision on disclosure is, in current Scottish law, governed by the common law and is a matter for the prosecutor. Cases noted here and mentioned in Murtagh are Holland v HM Advocate (25.5.05), Sinclair v HM Advocate (24.5.07) and McDonald v HM Advocate (21.10.08).

The leading judgment in Murtagh was delivered by Lord Hope, and the only real point of some divergence was on whether it would be preferable for the prosecutor to disclose all the convictions of prosecution witnesses unless those convictions would be both embarrassing and immaterial (Lord Scott 43, Lord Brown 73).

While the common law does not require the prosecution to disclose information about the convictions of witnesses it knows the defence will or may call, Lord Rodger noted (70) that such disclosure would be consistent with equality of arms.

The accused's fair trial right is absolute and is not a matter for balancing against the privacy interests of a third party: Lord Scott (43; there was no disagreement on this). Criminal records held by the authorities can attract privacy interests, especially if they are old, so full disclosure is not an absolute right (Lord Hope at 18, 28). So, although the right to a fair trial is absolute, the right to disclosure is qualified (29).

Material convictions go to the witness's credibility or character (Lord Hope, 30) and a generous interpretation of what might be relevant should be taken, although a threshold applies (31). There are practical problems with the full disclosure approach favoured by Lord Scott and Lord Brown, such as the potential for harassment and other misuse of them by unrepresented defendants (33). There is no requirement of disclosure of the records of defence witnesses (39).

Lord Rodger emphasised the undesirability of redacting lists given to the defence, as that process can be time consuming (59) and can lead to disputes (69). Where disputes do arise, the judge should resolve them (69, and Lord Brown at 73), although Lord Hope saw no need for the disclosure decision to be transferred to some other party (15).

Disclosure of warnings and incidents of diversion from prosecution is not specified in recent legislation in New Zealand, the Criminal Disclosure Act 2008, although it would probably come within s 13(2)(a) which requires disclosure of "any relevant information", and the specified matters do not limit that expression.

On being informed about decisions to prosecute

There is a right to be told of how decisions about whether or not to prosecute are made: R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009).

Article 8 of the ECHR provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Appellate Committee ordered the Director to publish a specific policy on decisions to prosecute allegations of assistance in suicide. Here there was a possibility that assistance might be given to a person who wanted to commit suicide lawfully in Switzerland, by helping them leave the United Kingdom for that purpose. The potential assister wanted to know about the likelihood of being prosecuted.

The common law on liability for assisting what would be an offence in the jurisdiction where the assistance is given, but not an offence where the full offence is committed is reasonably clear, although Lord Phillips did not think it was necessarily as settled as did Lord Hope who delivered the leading opinion. Whether that jurisdictional issue was settled or not, the real issue in this case was access to information about decisions to prosecute.

Baroness Hale noted (57 – 58) the recent Parliamentary debates on the issue of assisted suicide, which did not result in legislation. There were drafting difficulties, and indications of a preference to leave the matter to prosecutorial discretion. Since a major objective of the criminal law is to warn people of when they might be punished (59), article 8(2) was engaged (62). Lord Brown said article 8(2) required accessability and foreseeability in assessing how prosecutorial decisions are likely to be exercised (85). Lord Neuberger said the applicant was entitled to guidance on that (106).

Lord Hope pointed to the crucial circumstances that a Code guiding prosecutorial decisions should address (53):

"...There could be [... cases] unsuitable for prosecution where, for example, it could be said that those who offered assistance stood to gain an advantage, financial or otherwise, by the death. An assistant who was not a relative or a family friend might have to be paid, for example, and a relative might derive some benefit under the deceased's will or on intestacy. The issue whether the acts of assistance were undertaken for an improper motive will, of course, be highly relevant. But the mere fact that some benefit might accrue is unlikely, on its own, to be significant."

He concluded:

"54. The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) [of the Suicide Act 1961[UK]] says ["A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years"] and the way that the subsection is being applied in practice in compassionate cases of that kind.

"55. The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

"56. I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act."

This is an interesting example of the common law going where Parliament fears to tread.