Another look at the right to legal advice

The relationship between the right to legal advice and the right to a fair hearing, discussed here in commentary on R v Sinclair, 15 October 2010, was again a central theme in yesterday's United Kingdom Supreme Court decision, Cadder v HM Advocate [2010] UKSC 43. In this case the law of Scotland was brought into line with the law in other jurisdictions that apply the European Convention on Human Rights.

I suggested that Sinclair will have to be applied in a way that preserves the defendant's absolute right to a fair hearing. This too is a requirement of Cadder. All members of the Court agreed with the two leading judgments (although technically Lord Mance agreed with Lord Hope but through him also agreed with Lord Rodger). Lord Rodger put the relationship between the non-absolute right to legal assistance and the absolute right to a fair trial this way (95):

"First, as the European Court recognises, [in Salduz v Turkey] 49 EHRR 421, 437, para 55, since the right to legal assistance at the stage when a suspect is to be questioned is an implied right, it is not absolute and must be subject to exceptions when, in the particular circumstances, there are compelling reasons to restrict it. It is not suggested that there would have been any such reasons in this case. But the circumstances in which section 15 of the 1995 Act envisages delaying intimation to a solicitor (the interest of the investigation or the prevention of crime or the apprehension of offenders) could perhaps constitute compelling reasons to restrict the right of access in an appropriate case. It has to be remembered, however, that even a justified restriction may deprive an accused of a fair hearing and so lead to a violation of article 6: 49 EHRR 421, 436, para 52."

Key concepts are the "compelling reasons" needed before the right to legal assistance can be restricted, and the nature of the "fair hearing". Neither of those called for detailed consideration in Cadder.

I doubt that in practice the correct application of Sinclair will produce different outcomes in Canadian courts from those in Scottish courts under Cadder.

Lord Rodger at 100-103 also dealt with the argument that changing the law of Scotland now would create a need to revise all the decisions that had applied the earlier law, by applying dicta in A v The Governor of Arbour Hill Prison [2006] 4 IR 88, per Murray CJ at paras 36-38.

Lord Hope referred to Gafgen v Germany (a case discussed here on 3 July 2008, 3 December 2008, and 25 June 2010, and also in Part 3 of the overview of these notes posted on 14 January 2010). He held at 48 that Gafgen turned on it's facts and was not a limitation of Salduz.

With there now being less wriggle-room concerning rights compliance, attention will focus on whether waiver of the right to legal advice had been constituted by the defendant's continuing cooperation with police questioning.

Provoking nostalgia

I recall that some of the better law students used to laugh at judges' efforts to elucidate the acts reus of attempts, especially impossible attempts, and also at their efforts to explain what provocation is. The latter has remained problematic, as can be seen from today's High Court of Australia decision in Pollock v R [2010] HCA 35. The case illustrates how even Bench Book directions derived from appellate judgments can be held by a higher court to be wrong.

In New Zealand we have repealed the statutory defence of provocation, as it is no longer thought to be necessary since the penalty for murder can in exceptional cases be less than life imprisonment. I am sure that, once the question of provocation is explored in sentencing hearings, the old difficulties will be revived.

Now that the questions concerning liability for impossible attempts have been solved, and provocation has diminished in importance, law students will be starved for intellectual stimulation in criminal law. Is there really anything worth puzzling over as far as the ingredients of offences and defences are concerned? Surely the focus of interest has shifted to admissibility issues, especially those involving rights.

So there is some nostalgia in reading Pollock - those old familiar authorities, those old familiar errors.

The right to legal advice

The requirement that a confession must be voluntary has several components. One is the right to silence, and waiver of this right must be informed and freely exercised (another requirement of voluntariness). The need for "informed" waiver of the right to silence is the reason that a caution has to be administered before a suspect is interviewed. The caution also contains information about the right to legal advice. This right to legal advice protects the "informed waiver" component of the right to silence, but it also extends to protect the ongoing requirement of voluntariness that continues throughout an interview. It should ensure that the suspect knows that he can exercise the right to silence at any time during questioning. The suspect is entitled to advice which will inform him of the significance of the questioning that will occur: its importance for potential proof of criminal liability. That means that the legal adviser needs to know what offences might be charged and the way in which liability for them might arise from the suspect's answers if he is to be questioned.

When one asks what the right to legal advice entails, this context of the right in relation to voluntariness of a potential confession needs to be remembered. Does this context make the operation of the right to legal advice in any particular case a matter for balancing against other interests, such as the public interest in the bringing of offenders to justice? Or is the right to legal advice an absolute right because of its being a component of the voluntariness of a confession?

This latter position, absoluteness, was taken by LeBel, Fish and Abella JJ in R v Sinclair [2010] SCC 35 (8 October 2010) and again in a companion case decided the same day, R v McCrimmon [2010] SCC 36. They said that what needs to be justified is a limitation on the right to legal advice, not the exercise of the right (McCrimmon at 39). Their concern with the power imbalance inherent in a police interview led them to repeat the dissent they had issued in Sinclair.

I should say, parenthetically, that it was illegal for those judges to repeat the dissent: since the matter was decided by the majority in Sinclair, they were obliged to follow the law and apply Sinclair. They could have still in McCrimmon reached the same conclusion as they did, by turning attention to the requirement of voluntariness. Unfortunately, the splitting of issues on appeal has led to the right to legal advice being considered in detail but without its important context of voluntariness. There was necessarily some mention of voluntariness, but this was more by way of aside (see, for example, the majority in Sinclair at 62).

The majority in Sinclair (McLachiln CJ and Charron J, with Deschamps, Rothstein and Cromwell JJ concurring) held that the right to legal advice involves an initial informing and a reasonable opportunity to exercise the right. It does not include a right to have counsel present throughout the interview. There may, during the course of an interview, be a need for a further opportunity for legal advice, but this arises only where it objectively appears that the initial advice could have been inadequate or where a new issue makes an opportunity for advice appropriate. It is not enough that the suspect merely wishes to interrupt an interview, as the suspect can exercise the right to silence. Fundamental to the majority's approach is the view that ascertaining the contours of the right to silence requires consideration of societal interests in the investigation and solving of crimes (Sinclair at 58, 63).

One would have to think very carefully before venturing to disagree with Charron J on a point of the law of evidence. Whether or not one agrees with the majority reasoning should depend on whether one accepts that qualifying the right to silence, by qualifying the right to legal advice, risks jeopardising the absolute quality of the requirement that a confession is made voluntarily. The majority's reasoning seems to be that qualifying those subsidiary rights may be acceptable as long as the voluntariness of any confession remains absolute. That would be analogous to reasoning that has been used in relation to rights associated with the accused's absolute right to a fair trial (see, for example, R(Ullah) v Special Adjudicator noted here, and with reference to judicial difficulties, 3 September 2004).

The Sinclair majority's reasoning is anchored to an appreciation of the "broad sense" of voluntariness required for confessions (Sinclair at 62), but unfortunately these cases have no detailed discussion of voluntariness. The majority makes great claims for the role of the voluntariness requirement (Sinclair at 64: "If anything, our reasons broaden the protection available to suspects, and narrow the ambit of police questioning"), and there will be many who read that sceptically. A consequence of finding no breach of the right to legal advice if there was no impact on the voluntariness of a confession is that there would be no need for the balancing exercise to determine the admissibility of the confession (in Canada, the Grant balancing) in such cases. Of course, if there was an impact on voluntariness, exclusion would be automatic. But cases of lesser police impropriety would be immune from judicial criticism in the form of exclusion. A very "broad" sense of voluntariness would be needed to address those.

Also decided the same day was R v Willier [2010] SCC 37, in which the Court unanimously held that on the facts there was no breach of the right to legal advice. Each of the approaches, so different in philosophy, can still lead to agreement on particular facts.

There is a brief but interesting discussion of the relevance of foreign law (here Miranda) to the question of the meaning of the right to legal advice, in Sinclair at 38-42.

See also my discussion of R v Singh, 2 November 2007. And for the position in Europe, see Salduz v Turkey [2008] ECHR 1542 at para 50-55.

Interpreting positive drug tests in cyclists

I am not a great follower of the sport of cycling. Apparently it is bad for the health of male genitals, and I can see why. But recently a successful cyclist, Alberto Contador, has tested positive for a minute trace of a substance that is banned. His explanation is that it must have been in meat he innocently ate. Farmers do use that drug to improve the muscle mass of their cattle. It seems to be thought that the controversy will be resolved by a second test of Mr Contador's body fluid samples.

 Nonsense. The occurrence of the drug in people who eat meat from the same source as Mr Contador's meal must be examined. The probability of getting Mr Contador's test result, on the assumption that he is guilty of deliberately taking the drug, must be compared with the probability of getting his test result on the assumption that he is innocent. This latter is the proportion of people who have a similar test result who got that result innocently from eating.

Scientific reasoning is comparable to legal reasoning. In science the method of investigation involves attempting to disprove a null hypothesis. For example, if the null hypothesis was “this drug test result could not have been caused by food”, scientific inquiry would involve looking for an instance where the relevant sort of food consumption caused the same test result. Falsification of the null hypothesis was the criterion for scientific advance recognised in the scientific community and famously described by Karl Popper.

In legal reasoning applicable to criminal trials, the prosecution’s hypothesis is the null hypothesis (“this drug test result could not have been caused by food”). But it is not for the defence to disprove the null hypothesis. Of course, the defence could seek to do so, and would win if it did produce evidence that the null hypothesis was false. But generally it is for the prosecution to prove that there is nothing to falsify the null hypothesis. “Progress” in this legal context occurs where there can be no disproof of the null hypothesis, whereas in science progress is disproof of the null hypothesis. Obviously, whereas disproof of the null hypothesis occurs by a specific event, the prosecution’s task of showing there is no disproof of its hypothesis can only be a matter of likelihood.

A disadvantage of the scientific method is that disproof may be a long time coming, and this will slow down progress. Disproof has, in recent times, been complemented by another technique: asking what is the most likely hypothesis behind given observations. Given the drug test result, what is the most likely explanation? Law is similar: given the evidence, is the defendant’s guilt the most likely (to the necessary high standard) explanation? On this approach, conditional probabilities come into play. Hypotheses are compared as explanations for the observations or for the evidence. Bayes’ Theorem is a means of assessing the likelihood of an hypothesis as an explanation for an observed fact.

Mistakes in logic can be identified using Bayes’ Theorem, and it is not necessary for this that actual probabilities are known. A common error in logic is to say that the probability of A, given B, is the same as the probability of B, given A. Using the example of a (any) cyclist, the error would be in saying that the probability of this test result, given that the drug was taken deliberately, is the same as the probability that the drug was taken deliberately, given this test result. Another error of logic is to suppose that the likelihood of the cyclist having cheated can be derived directly from the likelihood of the drug having been in his food. This error is that of ignoring the other probabilities of the cyclist having cheated, taking into account all the relevant facts. A Bayesian approach avoids both these sorts of errors.

Ideas or decisions?

Much that is of interest to criminal lawyers in Dickson v R [2010] HCA 30 (22 September 2010) is not discussed in the judgment.

The appellant had been convicted of an offence against a statutory provision that was invalid by reason of its inconsistency with s 11.5 of the Criminal Code (C'th). The High Court ordered that the charge should be quashed, the conviction entered on it should be quashed, and the sentence should be set aside.

The questions that naturally arise from this did not require decision, but some digression might have been interesting:

• If Mr Dickson had been acquitted at trial, would that have been a valid acquittal?
  
• Was he in jeopardy of conviction?
  
• Can he, if now properly charged, plead previous conviction? Or previous acquittal (in view of the successful appeal)?
  
• Would new proceedings on the same matter be an abuse of process?
  

There are implications of the decision that could be, for Australians, utterly horrifying, as Associate Professor Jeremy Gans suggests.

This decision has what are coming to be hallmarks of the new style of the High Court, at least in criminal cases: one judgment, tightly reasoned, narrowly focused. It is as if the Court has undertaken a physicist-like quest for a unified theory of everything (in the sense of one voice on every issue). Lady Hale would not approve (update: she elaborates here), and I agree with her.

There is nothing wrong with bringing the methods of science to law, but some sciences recognise the value of diversity. The current style does nothing to promote a growth in ideas.

For discussion of "null and void" at this site, see entries for 20 February 2006, 28 July 2006, and 13 May 2008.

The best of the best

Tom Bingham's brilliant article in the London Review of Books (26 March 2009) made many of us think he was just beginning a retirement career as a masterful commentator. His death on 11.9.10 came, therefore, as a surprise as well as an occasion for sober reflection: see the tribute by Alex Bailin QC at UKSC blog.

For me, Lord Bingham's most important contribution was to settle a debate about the status of an accused person's right to a fair hearing. While some judges were prepared to see this as a right that could be qualified by being balanced against the rights of the prosecution and of victims, in Randall v R (Cayman Islands) [2002] UKPC 19 at para 28 Lord Bingham, for the Board, established the absolutist position:

"…the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. 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."

And in the House of Lords the same point was made (by Lord Bingham for the Appellate Committee) in R v H [2004] UKHL 3 (5 February 2004) at para 10. This required some delicate manoeuvring around dicta that appeared to support a balancing approach to this right (para 12, citing Lord Steyn in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118). Even so, the issue was not secure: four months after H, Lord Bingham agreed with Lord Steyn in R v Special Adjudicator, ex parte Ullah [2004] UKHL 26 (17 June 2004) who at para 44 called the right a "qualified" right (that is, subject to derogation – a point that is rarely relevant), requiring consideration of a "triangulation of interests" (the accused, the victim, the public) where "compromises" might be required, although the requirement of a fair trial is "a universal norm".

But Lord Steyn had delivered the Board's judgment in Mohammed v The State (Trinidad and Tobago) [1998] UKPC 49 (9 December 1998), saying at para 29 "a breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed." Is there a problem? Was Lord Steyn suggesting a model of fairness where whatever "fair" means, it is absolute, but its meaning is determined by triangulation? That possibility is excluded by H, triangulation is confined to other rights and its results are subject to the test of fairness (see para 36, step 6). Were it to be otherwise, "absolute" would mean nothing. To borrow Larkin's apposite phrase, "one side will have to go".
 
The accepted position is summarised in [2005] New Zealand Law Review 217 at 249 (footnotes omitted):

"The question is not how unfair is the accused’s trial required to be because of proper restrictions on cross-examination, but rather, what restrictions on cross-examination are compatible with the accused’s absolute right to a fair trial? Again, the question is not to what extent may reasonable breaches in identification procedures limit the accused’s right to a fair trial, but rather, what failings in identification procedure are compatible with the accused’s absolute right to a fair trial? The question is not to what extent may disparities in the opportunity of expert witnesses to examine the relevant evidence limit the accused’s right to a fair trial,  but rather, what disparities are compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may pre-trial publicity limit the accused’s right to a fair trial,  but rather, what level of publicity is compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may breaches in the rights relating to police questioning be allowed to limit the accused’s right to a fair trial, but rather, what departures are consistent with both the accused’s right to a fair trial and wider issues of prevention of abuse of process?"

It is now generally recognised that the accused's right to a fair trial is an absolute right: R v Howse (New Zealand) [2005] UKPC 31, para 36; Condon v R [2006] NZSC 62 (23 August 2006) at para 77, 78.

Eight days before Condon was decided, no less a legal scholar than Grant Hammond (who has achieved praise in these blogs) delivered a lecture in which he said (p 20) "The question whether it is possible to have an unfair trial but a safe conviction is maddeningly simple. But there is no clear answer" and he favoured a broad approach whereby if a conviction appeared safe on the evidence at trial, the accused's appeal should only be allowed on unfairness grounds if a balancing of rights supported that conclusion. What was clear to Lord Bingham might only slowly become apparent to others.

In New Zealand we have particular reason to remember Lord Bingham as the judge who delivered the devastating rejection of the Court of Appeal's analysis of the case against David Bain: Bain v R (New Zealand) [2009] UKPC 4 (16 March 2009). Applying the correct approach to the proviso, the Board ordered a new trial. Mr Bain (as all New Zealanders know) was subsequently acquitted of the murders of his parents and three siblings. The New Zealand courts have now changed their approach to the proviso, although the Privy Council insists that the result in Bain would have been the same: Barlow v R (New Zealand) [2009] UKPC 30, para 21.

Admissiblity issue or defence?

There is a difference between a procedural error in steps taken by an enforcement officer which provides a defence to a charge, and an error which results in evidence being improperly obtained: Birchler v Police [2010] NZSC 109 (30 August 2010). An officer had wrongly decided that a breath test could not be carried out at the roadside, and required the suspect to accompany her to the police station for the testing procedures. The accompanying was not voluntary (8). The District Court Judge dismissed the charge, instead of ruling that the improperly obtained evidence was admissible pursuant to the balancing exercise set out in s 30 of the Evidence Act 2006.

In the absence of reasonable compliance with the procedures the defendant had a defence (17). It would have been wrong for the Judge to have proceeded to the balancing exercise, because to do so was "quite inconsistent" with the statutory procedural scheme. The High Court, on an appeal on a question of law, held that the District Court could have undertaken the balancing exercise instead of dismissing the charge. The Supreme Court overruled that and set aside the High Court's order which remitted the case to the District Court for reconsideration.

The Supreme Court took the opportunity to correct a troublesome dictum in R v Gallichan [2009] NZCA 79 at 18, in which the Court of Appeal had indicated that failure to challenge the admissibility of evidence before the close of the prosecution case prevented the issue being raised. That was wrong (Birchler at 21).

Saved by sunken dreams

In Attorney-General v Tamil X [2010] NZSC 107 the New Zealand Supreme Court applied JS (Sri Lanka) v SSHD [2010] UKSC 15 (discussed here 16 April 2010). The case concerns whether X was disqualified from obtaining refugee status. Two grounds for disqualification were advanced: his participation in a crime against humanity, and his commission of a serious non-political offence.

Here, the sinking of a ship which carried weapons meant that no crime against humanity was committed as a result of any support that X may have given, as Chief Engineer onboard, to the Tamil Tigers during the vessel's last voyage bound for Sri Lanka. The Crown had acknowledged that no attempt was committed on the particular facts, which included findings that X was a loyal supporter of the Tamil Tigers, and he knew that he was helping to smuggle arms to Sri Lanka.

The Supreme Court held that all the necessary elements for X's personal responsibility for participating in a joint criminal enterprise to commit crimes against humanity were established on the facts (71), except that there was no proof of criminal acts of the Tamil Tigers in which it could be said that X was complicit, as the sinking of the ship resulted in no use of the weapons (72, 73, 75, 78). The point of joint enterprise liability is to make liable those who assist or contribute to crimes that are actually committed (79).

Another issue was whether X had committed, by other conduct, a "serious non-political crime". He had been convicted in India of being a party to the intentional destruction of a vessel carrying explosives in circumstances where danger to lives was likely (83). If this was accepted by the New Zealand authorities, that would establish X had committed a "serious crime", but was it "non-political"? That term is not defined (87). It is a question of the context, methods, motivation and proportionality of the crime to the offender's political motives (90), bearing in mind that (although it is not the norm in New Zealand) violence may be an incident of political action in many other countries (91, applying Kirby J's dictum in Minister for Immigration and Mulitcultural Affairs v Singh [2002] HCA 7 at para 106).

Here, X's conduct was political: there was not the "indiscriminate violence against civilians which would make the link between the criminal conduct and any overall political purpose too remote." (95)

There was thus no evidence of non-political crimes that would have disqualified X from obtaining refugee status. Nor was there evidence that he should be disqualified by reason of participation in a crime against humanity.

It seems that the Crown's concession that there was no attempt to commit a crime against humanity on these facts was important to the outcome. It was properly made, in view of decisions in domestic law about the difference between preparation to commit an offence and attempting to commit it. The distinction is sometimes difficult to draw, and can be controversial. The failure of a bomb to detonate would not save participants from liability for the attempt. But being interrupted in the process of assembling the ingredients for the bomb might. Generalisations are dangerous.

Doing the right thing

And now, on the actual date of the sixth anniversary of this site, here – as my 400^th posting - is a note on Petryszick v R [2010] NZSC 105 (24 August 2010).

The only grounds on which the Court of Appeal may dismiss an appeal against conviction are set out in s 385(1) Crimes Act 1961, and the substantive right to appeal (s 383) is not restricted - in the absence of express or implied authority in primary legislation - by authority to make procedural rules (32). Nor could the inherent right of the Court to control its own procedure be invoked to undermine the general standard of process required by s 25(h) New Zealand Bill of Rights Act 1990.

There will therefore be occasions when the Court must address grounds for appeal specified in preliminary documents without the assistance of a fully prepared argument for the appellant. Here the appellant had been in custody and correspondence from the court had been wrongly addressed, there were delays in approving a grant of full legal aid for his appeal, official correspondence did not refer to points he had raised, there were delays in giving the appellant information he needed to prepare his appeal. The Court of Appeal had dismissed the appeal without considering all the matters that had been raised.

The humorous side of this case is in the reaction of the Court of Appeal to the sort of quotidian frustrations that ordinary people can encounter in their efforts to obtain the service to which they are entitled from the bureaucracy. Consigning such a case to the wastepaper basket of dismissed appeals is not the right thing to do.

Rules of procedure should assist access to courts. The present Supreme Court case is reminiscent of the spirit of its earlier decision in Zaoui v Attorney-General, noted here on 25 November 2004. The lesson delivered by the Privy Council in Taito v R (New Zealand) [2002] UKPC 15 needs to be remembered. People who look for reasons to institute a criminal cases review tribunal will take the Court of Appeal's approach to Petryszick as an example.

Time

This week is the sixth anniversary of the start of this site.

Other milestones? Forty years ago I was dux of the same secondary school that Lord Rutherford was dux of in 1889. I smile at the bathos. Perhaps in some other dimension Rutherford's loud laughter echoes down the corridors of the Cavendish when he sees the result of searching this site for the word "smug".

I came to law after a science degree which left me fearless of mathematics, statistics and probability. This leads to the next anniversary.

Thirty years ago I had, as a spin-off from my PhD thesis, an article published in the Criminal Law Review. The publishers sent me copies of that month's edition.

This contained a fascinating exchange between Sir Richard Eggleston and, in the letters part of the journal, Jonathan Cohen over the forensic use of probability reasoning.

Consequently, I became familiar with Bayes' Theorem. The book by Bernard Robertson and GA Vignaux, "Interpreting Evidence" (1995) should make this subject accessible for most lawyers. So may my draft paper on the logic of propensity evidence [click here].

Bernard, incidentally, is mentioned on the innocent project page of Victoria University in Wellington. And, to complete a circle within a circle, Graham Zellick – mentioned in the edition of the Criminal Law Journal referred to above, is here in New Zealand now in connection with Victoria University's Innocence Project. Gasp.

So there we have it: milestones, coincidence, criss-crossing lives, earnest endeavours, and time always passing.