When time is broke ...

"What is dawn in the city to an elderly man standing in the street looking up rather dizzily at the sky?"

This sentence from the penultimate paragraph of Virginia Woolf's work of consummate genius, "The Waves", has been with me since I first read it in the '70s. So has Shakespeare's wonderful

"I wasted time, and now doth time waste me."

Time's measurement has in the last six weeks caused ructions in the United Kingdom, where the legislature is set to uphold a practice which was based on a misconception about time. An interpretation of provisions allowing the police to detain suspects for questioning for no longer than a specified period, which could be extended, had been followed without judicial consideration for over 20 years. Then someone said, just a minute, is this legal, what does the statute mean? It did not mean what it had been assumed to mean: R (On the Application of the Chief Constable of Greater Manchester Police) v Salford Magistrates' Court [2011] EWHC 1578 (Admin).

The legislature seems eager to establish the position as what the police had thought it to have been rather than what it probably seemed to the original enactors to have been. The police snap their fingers, and the legislature obeys.

In a general sense, the interpretative dispute was over whether time should be measured as if it flows continuously from a specified moment, or as if it is a series of discrete periods which are to be considered in their aggregate.

The kind of people who are reminded by this of passages from Virginia Woolf and Shakespeare will also remember that Zeno's arrow paradox cautions us against the perils of dividing time, while his tortoise paradox shows that division of events can also be problematic.

Don’t let me spoil this one by quoting ...

There are rare moments when a brilliant judgment makes others look vapid and pathetic. So it is with Judge Bonello's roasting of the House of Lords and of the United Kingdom government's arguments in Al-Skeini v United Kingdom [2011] ECtHR 1093 (7 July 2011). Even the Grand Chamber judgments with which he concurred seem inept by comparison, fumbling with a subject which he has firmly in his grasp. Compulsory reading for anyone who would be an advocate or a judge.

Sorts of fairness: abuse of process, plea bargaining and the stay of proceedings

There is something unsettling about R v Nixon, 2011 SCC 34 (24 June 2011). It is the possibility that an issue of trial fairness may be determined by a balance between societal interests and individual concerns.

The conceptual scheme that allows this possibility was set out in the Court's judgment, delivered by Charron J, at [33-42]. The first point is unexceptional: there are two categories of abuse of process – those which concern trial fairness, and those which raise the integrity of judicial process [36]. The unsettling thing comes next [38]:

" ... Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process."

Nixon had nothing to do with trial fairness (this was hesitantly – because of lack of clarity in the submissions - recognised at [55]). It was about what can be called public policy fairness: whether in this case a plea bargain could be rejected by a more senior prosecutor. That sort of fairness does indeed involve a balance between societal interests and individual concerns. Instead of calling it public policy fairness, you could call it "the proper and fair administration of criminal justice" as Charron J does at [63]. My impression is that the conceptual framework that emerged from the precedents relied on in Nixon wrongly equates substantial fairness with administrative fairness.

The placing of trial fairness (that is, not public policy fairness) in the first category of abuse of process and within the balancing exercise was purportedly illustrated at [39-40] by reference to a case concerning whether requiring the defendant to undergo a third trial after two juries had failed to agree was an abuse of process. That case, R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, was really about public policy fairness. There was no suggestion that a third trial there would not itself be a fair trial.

It is easy to confuse trial fairness with public policy fairness. I suggested that the Privy Council did this in Boolell v The State (Mauritius) [2006] UKPC 46, noted here on 18 October 2006.

Canada recognises that the defendant's right to a fair trial is an absolute right, not subject to balancing: for example R v Ahmad, 2011 SCC 6, discussed here on 22 February 2011. This makes the framework of analysis set out in Nixon rather misleading.

Aside from that difficulty, Nixon makes some useful points about the scope of prosecutorial discretion and its relationship with the court's duty to prevent an abuse of process.

I should add that while a balancing of competing interests will determine whether public policy supports a finding of abuse of process, a balancing of competing interests will not determine whether a trial was or would be fair. Yes, balancing of subsidiary rights may be required in order to resolve an issue, but once that balancing is done the result must be assessed for compliance with the defendant's right to a fair trial. An illustration is R v H [2004] UKHL 3, at [36], concerning whether a trial could be fair without disclosure of the identity of a witness.

Furthermore, abuse of process as originally conceived was thought to cover a relatively narrow field of wrongs, but it has since been recognised that it is a more general concept. Once one adds within its scope the issue of trial fairness, this extended application is evident. Any substantial miscarriage of justice can be said to have caused trial unfairness and so be an abuse of process. That includes anything that would give rise to a successful appeal against conviction. More interesting is the choice of remedy once such an error has been identified. Can it be put right by a warning to the jury? Should it result in exclusion of evidence that otherwise would have been admissible? Or, most drastically, should the proceedings be stayed? Different forms of decision process apply to the choices. When a judge has to decide whether to warn a jury, or to exclude evidence, the decision is reached by the well known weighing of probative value against risk of illegitimate prejudice. When the choice is between warning the jury and staying the proceedings, the decision turns on whether there would be an unacceptable risk of an unfair trial, and that is not a balancing exercise. When the choice is between excluding tainted evidence and staying the proceedings, the decision is one of public policy balancing. I have discussed this in more detail in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings".

What price access to justice?

Today our new Legal Services Act 2011 comes into force, just as we are digesting Lady Hale's Sir Henry Hodge Memorial Lecture, "Equal Access to Justice in the Big Society". There is thoughtful comment on this lecture at UKSCblog on 30 June 2011 by Anita Davies.

Our legal aid system is said to cost too much, and the government seeks to reduce what it calls a "$402 million dollar gap in the legal aid budget".

Of course this "gap" is the difference between what provision of legal aid has actually cost and what the government would like it to cost. It is, if you like, a budgeting aspiration. If we were a wealthier country, the cost of legal aid would be of no concern. I state that truism to emphasise that the government's concern is fiscal.

I am just focusing on the money here because it is singled out as a government goal. Other goals have been addressed in the new legislation, and these concern the quality of legal representation. There is nothing wrong with that. One of the ways by which the government intends to improve the quality of legal representation is by increasing the quantity of criminal work handled by officers of the Public Defence Service. Again, I see nothing wrong with that. In fact I think it is a miracle that someone persuaded the previous government that public money should be spent on training lawyers.

One of the sources of legal aid costs in criminal cases is, as Lady Hale points out, the large amount of work that is required of lawyers at the early stages of even cases that are not particularly serious. Case management and its associated workloads have not proven to have saved money.

On the other hand (this is me again, not Lady Hale) there seems to be no shortage of lawyers who are willing to do legal aid work. The obvious cost-saving strategy would be to decrease legal aid rates of pay. This would deter some lawyers from any involvement with legal aid, but new lawyers would step in to fill this "gap". They would, thanks to the quality of representation safeguards, be fit for the job. Theoretically anyway.

That would satisfy people who think lawyers earn too much money. Perceptions of lawyers' pay are probably exaggerated by the publicity given to some extreme examples. But even those lawyers who have received large legal aid remuneration have worked very hard for it. Against the median pay received by legal aid lawyers, once outliers are ignored, one would have to weigh the time spent, the stress of the work, the office overheads, and the risks of complaints of negligence made by disaffected former clients, before deciding whether lawyers are paid too much.

The real problem may be that the government has an unrealistic expectation of how small the budget for legal aid can be.

Deterrence or rights protection: why exclude improperly obtained evidence?

Davis v United States (2011) USSC No 09-11328, 16 June 2011 emphasises the rationale for declining to exclude evidence obtained by unreasonable search that had been established in Herring v United States (discussed here 15 January 2009). This is that evidence should be excluded if doing so would have a deterrent effect against police misconduct. At the time of the search in Davis, the search was lawful, but afterwards the law was changed by Arizona v Gant (noted here 22 April 2009). That meant that there was, at the time of the search in Davis, nothing to deter, and the evidence was admissible notwithstanding the later change in the law.

What this sort of deterrence aims at is police conduct that is in flagrant, deliberate or reckless disregard for the Fourth Amendment rights. Where the police act in good faith, or where they are merely negligent, and they violate the defendant's rights, deterrence is not called for and exclusion of the evidence would not "pay its way".

A more rights-centred approach to exclusion of improperly obtained evidence pertains elsewhere, but you knew that.

Public Defence Service costs and private bar legal aid costs

A spat looms on whether the Public Defence Service is more expensive than having legally aided criminal cases dealt with by the private bar:

Wellington, June 24 NZPA - The Government wants to save money by expanding the Public Defence Service (PDS) but Labour says the United Kingdom experience shows it is more costly.

The Government intends to increase the PDS' share of the criminal caseload from 33 percent to 50 percent.

Criminal lawyers have argued the PDS was incapable of delivering a competent and independent service, lawyers would be less experienced, clients would be pressured into pleading guilty and that it would be more costly.

Justice Minister Simon Power and the PDS disagree, saying it was working well.

Labour MP Charles Chauvel said today that the latest review of the PDS in England and Wales showed costs between 41 percent and 58 percent higher than independent lawyers providing the same services.

It also raised concerns about how PDS costs were calculated.

Mr Chauvel called for Mr Power to release full costs of the PDS.

"The Justice Minister hopes to cut legal aid costs by significantly expanding the Public Defence Service (PDS) — a public service entity — at the expense of independent lawyers providing legal aid," Mr Chauvel said.

"Labour created the PDS and continues to support its existence. But we never intended to expand it as Simon Power wants to. It was always our view, and it remains our view, that independent lawyers should provide the bulk of criminal defence work, for efficiency and equity reasons."

Mr Power said the UK report was published in 2007 and Mr Chauvel was not comparing apples with apples.

"The criminal legal market in the UK is quite different to that in New Zealand," Mr Power said.

"In the UK there is already an extensive network of private firms providing criminal services, making it difficult for their PDS to build market share.

"In New Zealand rotational case assignment will see the PDS receive cases on a regular basis."

Mr Power said expanding the PDS was not just about addressing the cost of legal aid funding.

"It was also recommended by Dame Margaret Bazley in 2009 to improve the quality of legal aid services," he said.

I emphasise the "apples with apples" bit because it raises an interesting point about how to compare the costs of the PDS with those of the private bar.

The idea used by Mr Chauvel in this media report seems to be that the relevant costs will decrease as more work is done. This supposes that the relevant calculation is costs per case.

I think that the better calculation is costs per funded hour in court by counsel appearing in a case. So, for a year, take the total costs that are publically funded for the practice, and divide it by the total publically funded hours spent by counsel from that office in court. For the private bar, average those costs per hour to get costs per hour per firm, and then compare that average to the costs per hour for the PDS office.

This way of looking at it asks how much does it cost to put a PDS lawyer in court compared to putting a publicly-funded private lawyer in court. The "apples" are court-hours. This is a neutral basis for comparison. If the "apples" were cases the comparison would be complicated by the various kinds of cases and whether the best legally available outcome for the client was achieved in each.

Bring on the holidays!

Grown-ups will remember when we used to use the pejorative term Kafkaesque. This word comes to mind on reading R v EMW 2011 SCC 31 (17 June 2011). To call the opinions "reasons for judgment" is an exaggeration. They read more like an inadequate headnote. Perhaps the unsuccessful appellant will be wondering if the judges really earned their pay on this one. It is impossible to evaluate the strength of Fish J's dissent. And while we must accept the majority's conclusions there seems to be no discernable lesson to the Court of Appeal, whose majority decision was overruled. Just a difference of opinions. I think a court of final appeal has a duty to explain itself more clearly.

The majority disagreed with the  Nova Scotia Court of Appeal majority (and apparently too with the dissenting judge in that court who seems to have accepted this point) as to whether Crown questioning of the complainant had been leading. The questioning is set out at para 80 of the NSCA majority judgment and more extensively at [118] of the dissenting judgment of Fichaud JA. At trial, after a stick drawing of a female person had been drawn by the prosecutor and the complainant had drawn a circle in the general vicinity of where the defendant had been touching her inappropriately, the questioning continued (I insert numbers for the questions):
"1. Q. Yes. What’s that part of the body on a female called?
A. Vagina.
2. Q. Vagina. And was your dad touching you on the vagina? 
A. Yes.
3. Q. And when he touched you on the vagina, was it outside of your vagina or inside of your vagina?
A. Inside.
4. Q. What part of his body was he using to touch the inside of your vagina?
 A. His fingers.
 5. Q. Was he on the inside or the outside of your clothes when he was doing this?
A. Inside.
6. Q. So you would wake up and your dad’s hand would be down your pants, and his fingers would be in your vagina?
A. Yes."

The Supreme Court majority held [9] that this was not leading questioning. But did it suggest answers or assume a state of facts that was in dispute? Q2 leads; it should be "Where was your dad touching you?" Q3 should be "Which part of your vagina was he touching?" Q5 should be "Were you wearing anything?" then, "Where was his hand compared to your clothing?" Q6 should be "When did you notice that?"

An interesting point concerns Fichaud JA's treatment of the defence cross-examination on these matters. Fichaud JA regarded the defence tactic of getting the complainant to repeat this evidence (by questions which in cross-examination are not, of course, objectionable for being leading) as defeating any objection that could have been made at trial to the Crown's leading of the same evidence. I should say that the defence cross-examination technique was flawed: it was wrong to get the complainant to repeat her evidence in chief; counsel should merely have led the inconsistent statement and then put the proposition that both were lies. But, given that counsel chose to repeat what in the hands of a prosecutor was objectionable, did this create a sort of estoppel on appeal against objection to the prosecutor's leading? I think not, because if the questions had not been allowed in chief they would not have been repeated in cross-examination.

The Supreme Court did not address this. Nor did it explain why the questions were not leading, except to say that binary questions (giving the complainant a choice between two alternatives, as in Q3 and Q5 above) did not here suggest an answer. Well, in the context of this case those questions were peripheral: the point was the allegation that the defendant was touching her vagina. Inside or outside vagina, or inside or outside of clothing, was of secondary importance. But in any event, binary questions are not necessarily acceptable, as they serve to reinforce the preceding answer, here that the vagina was touched, and that clothing was worn.

Oddly McLaughlin CJ for the majority said, on the issue of whether the questions suggested answers or assumed facts that were in dispute, that they "did not cross this threshold". There is a threshold? They were sort of leading but not quite? Is there a category of questions that are acceptably leading in a context where leading is prohibited? The majority did not say, yes, these were leading questions, but in this case the complainant was young and the prosecutor was having difficulty getting her evidence, so the judge was right to allow these questions. If that was what the majority intended, it would be controversial. Compare the remarks of the New Zealand Court of Appeal in R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [25]:
" We are conscious that there are some cases and commentators which suggest that leading questions may be allowable where young children are concerned . . . Given what is now known about the importance of using open-ended questions when interviewing children, these authorities should be treated with caution. We note, in any event, that under s 89 of the Evidence Act 2006, there is no exception to the prohibition of leading questions where a child is being questioned."

Risks, aversions, coercion, and provocation

A clutch of recent Privy Council decisions: the risks of dock identification, the Board's aversion to the death penalty, jury perception of coerced confessions, and puzzling over provocation.

R v Tido (Bahamas) [2011] UKPC 16 (15 June 2011) has some useful dicta on dock identification, application of the proviso where inadmissible evidence had been before the jury, and on the discretion to impose the death penalty in the worst cases of murder.

In Miguel v The State (Trinidad and Tobago) [2011] UKPC 14 (15 June 2011) there is an interesting point reiterated about the Mushtaq direction ([2005] UKHL 25, discussed here on 22 April 2005 and also, in the context of Wizzard [2007] UKPC 21 here on 6 April 2007). This is that there is a distinction between on the one hand denial that a statement was made at all, as where the defendant says the police coerced him to sign a confession they concocted, in which case the Mushtaq direction does not apply, and on the other hand acknowledgement that the confession was his but that it was coerced. In the latter case, where the question concerns the voluntariness of an acknowledged confession, Mushtaq does apply so that the jury must be directed to ignore it if they think it may have been obtained by coercion. This was the explanation of Mushtaq that had been given in Wizzard.

Although Mushtaq is discussed as if voluntariness were an issue on which the jury had to be unanimous, it seems obvious that unanimity is not required because each juror may find his own route to a decision on guilt, and it is only on the verdict that the members must be unanimous. So if a juror relies on the confession, that juror must be satisfied (beyond reasonable doubt - the standard applying to voluntariness here) that it was made voluntarily.

In Miguel the Board, once again, found a way to avoid upholding the death penalty. This time the reasoning focused on the interpretation of constitutional legislation.

The third decision of the Privy Council addresses provocation and fresh evidence that could be relevant to that defence: Lewis v The State (Trinidad and Tobago) [2011] UKPC 15 (15 June 2011). Provocation has been replaced in England and Wales by the partial defence of loss of control: ss 54-56 of the Coroners and Justice Act 2009[UK], and Lord Brown for the Board commented [28]:

"...whatever difficulties may arise in England and Wales from the introduction last October of the new defence of loss of control in place of provocation, at least there will be fewer problems of the kind discussed above. The courts in Trinidad and Tobago however, must soldier on. It will now be for the Court of Appeal there to consider the question of provocation in the present case. We have no alternative but to remit the matter to them."

In Lewis the problems concerned identifying conduct by the victim that could qualify as provoking the defendant to lose self-control. Mere causing loss of self-control is insufficient, because then provocation would need to be considered whenever self-defence was raised (R v van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728; [2005] 2 Cr App R 632 at para 42, quoted in Lewis at [16]). In Lewis the judge had decided not to leave provocation to the jury, and the Board upheld that (although because of fresh evidence the case was remitted to the Court of Appeal). This reflects a view that what is sufficient evidence of provocation is not a question of law but is best left to the common sense of the trial judge [13, 21]. It is necessary to distinguish killing as revenge from killing as a result of loss of self-control, but the Board felt it unhelpful to try to separate out the evidence of provocation from evidence of loss of self-control [15]; they are closely connected aspects of the first limb of provocation (the subjective requirement that the defendant was provoked into losing his self-control). This first limb is regarded as "a single composite" [16], and the judge will refuse to leave provocation to the jury if he concludes that it would be perverse for a jury to find that a reasonable person would do what the defendant did.

An illustration of a controversial reliance on provocation is Weatherston v R [2011] NZCA 276 (17 June 2011), a case which was a major motivation for the repeal of this partial defence in New Zealand. Our national sense of horror is such that we have yet to replace it with anything like loss of control. The difference between Lewis and Weatherston is small (I mean here that in each the defendant claimed to have lost self-control as a result of his sensitivity to the consequences of a terminated sexual relationship), and it is likely that if the judge in Weatherston had refused to leave provocation with the jury the Court of Appeal would have upheld that decision, and, in that event, our crisis over the existence of this partial defence may well not have occurred.


Although the best barristers say very little, I, by way of contrast, can add a bit about provocation. Earlier I mentioned Attorney-General for Jersey v Holley [2005] UKPC 23 (see the entry for 5 July 2005), and it is worth calling to mind the two-stage inquiry by which courts address issues of provocation. First, what level of provocation can the defendant properly claim to have experienced? This requires considering how a reasonable person with the defendant's characteristics would have felt the provocative words or conduct. It is a mix of objective and subjective considerations. No doubt one could fairly say it requires a considerable exercise of imagination to assess. Second, given the level of provocation assessed in that way, does it exceed the level that a reasonable person ought to be able to tolerate without losing self-control? This is an objective question. These questions  can be modified when the issue is whether provocation is a live issue in the case:  is there evidence of acts or words that could reasonably be taken as requiring an exercise of self-control by the defendant, and, if so, could it reasonably be concluded that the exercise of self-control so required was beyond the ability of a reasonable person to exercise? This latter question determines whether a loss of self-control could have been through provocation as opposed to being the result of malice.

How do the new "loss of control" provisions applicable to England and Wales, referred to above, deal with these issues? On the first question, the s 55 definition of "qualifying trigger" sets the objective standards for the nature of the provocative act or words (serious violence, extremely grave circumstances, justifiable sense of being seriously wronged), and the subjective requirements are in s 54 (loss of self-control caused by a qualifying trigger). The second question, whether a reasonable person would have lost self-control if subjected to the level of provocation experienced by the defendant, appears in s 54(1)(c), which sets the standard as that of a person of the defendant's age and sex and who has "a normal degree of tolerance and self-restraint". Overall, and I only generalise because there will be a lot of interpretative issues, this legislation has the important effect of ensuring that only seriously provocative acts or words can be the basis for this qualified defence.

The unsaid unchartable universe

The more one says, the more one does not say. The universe of discourse is infinite. This is why attacks on reasoned judge-alone decisions must be constrained: a judge cannot anticipate every possible attack that might be made by imaginative appeal counsel.

It is necessary to avoid creating an "unchartable universe of appellate review", as Abella J so picturesquely put it in R v O'Brien 2011 SCC 29 (9 June 2011), writing for herself, McLaughlin CJ, Deschamps, Rothstein, and Cromwell JJ.

So, if a judge says he relies "entirely" on particular evidence, this is not to be taken to mean he was unconsciously influenced by other, inadmissible, evidence. It means the opposite: he deliberately ignored what was inadmissible.

"17. A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process. Trial judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts. As Binnie J. noted in R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, trial judges should not be held to some "abstract standard of perfection"."

Even so, there can be room for disagreement on appeal about what the judge meant, as occurred in this case. The way to avoid this is for judges to be specific about their treatment of inadmissible evidence, even if counsel had not objected to that evidence at the trial.

Raising the bar

For a collection of articles illustrating brilliant scholarship in our areas of interest, see the Journal of Commonwealth Criminal Law, available at the website of the Association of Commonwealth Criminal Lawyers.