Friday, June 13, 2014

IQ and intellectual disability

One of the things about the death penalty is that the Supreme Court of the United States has held that no legitimate penological purpose is served by executing the intellectually disabled: Atkins v Virginia, 536 U.S. 304, 312 (2002).

So, what does “intellectually disabled” mean? Currently the medical community defines it as the existence of concurrent deficits in intellectual and adaptive functioning. The courts regard it as proper to consult the medical community’s opinions when it is necessary to come up with a definition.

In Hall v Florida, USSC No 12-10882, 27 May 2014 the issue was whether interpretation by the Florida Supreme Court of legislation, that could be read consistently with the USSC’s caselaw, was constitutional. The Florida court had held that intellectual disability requires an IQ of 70 or less. Mr Hall scored 71 (although as the USSC dissenters in Hall point out he had actually had several tests in which he scored higher). The case is not concerned with what “adaptive functioning” means, only with what “intellectually” means in the expression “intellectually disabled”.

The majority, Kennedy J, joined by Ginsburg, Breyer, Sotomayor, and Kagan JJ, held that the requirement for a score of 70 or under was unconstitutional because it ignored the margin of error inherent in testing. When a score of 70 is within the margin of error, the defendant should pass the first requirement and then have the opportunity to present evidence of lack of adaptive functioning. The decision of the Florida Supreme Court was reversed and the case remanded for determination consistent with the majority’s opinion.

The minority, Alito J, joined by Roberts CJ, Scalia and Thomas JJ, dissented on the grounds that the Florida court’s interpretation was reasonable because it allowed the defendant to present several IQ test scores, and it is known that accuracy increases when more than one test score is considered. The majority’s opinion introduced uncertainty, as to what scores could come within the range that passed the first requirement, and as to how courts should deal with changing medical opinion as to what score indicates intellectual disability. The law should apply society’s standards, not those of a professional body, and the proper focus is on whether the defendant is able to understand the possibility of execution as a penalty notwithstanding diminished ability to comprehend and process information, to learn from experience, to reason logically, or control impulses.

The minority criticised the majority’s method of counting the states when assessing what public opinion regards as appropriate, and pointed out that the majority did not address why Florida’s method of accounting for the risk of test error (by allowing more than one test to be considered) was ineffective.

There is plenty of interesting discussion of IQ testing in this case. The average IQ is 100, a standard deviation is about 15, and two standard deviations below average is taken to be 70, the upper limit for being intellectually disabled (more accurately: the upper limit for meeting the "intellectually" limb of the description "intellectually disabled"). But a test score comes with a range of error, and a person who scores 70 may really have an IQ between 65 and 75, but the range varies according to the range applicable for a given test and the extent to which one wishes to be sure of the result (that is, the degree of confidence). Some tests may carry a lower range of error, so that one could say with a high degree of confidence that a person who scored 70 really had an IQ between, for example, 68 and 72.

An interesting point, from a lawyer’s perspective, was made in the dissent: before this decision, a defendant had to satisfy the court on the balance of probabilities that his IQ was 70 or less. Now, if a defendant may have an IQ in a range that includes 70, he is entitled to go on to produce evidence of his lack of adaptive functioning. The standard of proof is, say the minority, altered.

I note (this is me now, not the Court) that in law we often receive scientific test results without reference to a range of error or a confidence interval. For example, regimes for testing in alcohol-related driving cases usually involve a test result which the defendant can challenge by independent analysis of a blood sample, where one has been taken. It is usual for the prosecutor's analysis laboratory to knock off a bit of the alcohol result just to be safe, so that even if the final reported level is just over the limit, an independent result would probably be higher. If a defendant facing a penalty for an alcohol-related driving offence has an opportunity to challenge the test result, so should a defendant facing the death penalty. Obviously everyone would agree with that. The analogy suggests that it is not necessary to express an IQ score as being within a range of error or as being within a given confidence interval.

Some test results received by courts, such as DNA results, are stated in probabilistic terms, and rightly so. If one were to require a probabilistic report of an IQ test score, one would look for some statistic such as a likelihood ratio: the probability of getting this score, given that that was the defendant’s IQ, compared to the probability of getting that score, given that that was not his IQ. But I suspect that the confidence interval says the same thing, and the question becomes, do courts really need that extra information?

If the reasoning of the majority in Hall were to be applied to evidence of the result of a blood test for alcohol, the effect would be to remove the legal limit. If, as I do, you instinctively side with the majority in cases like Hall, you still have to deal with the logic of the dissent. Instead of ignoring it, like the majority here, you could accept that sometimes in law logic is trumped by experience, and do as the Privy Council majority did in Ramdeen v The State (Trinidad and Tobago) noted here on 28 March 2014.

Tuesday, June 10, 2014

The prosecutor's discretion

Judicial interference with decisions about what submissions a party to litigation should make will occur only rarely, to prevent an abuse of process: R v Anderson, 2014 SCC 41 (6 June 2014).

Here the issue was whether the court should review a prosecutor’s decision to seek a minimum penalty for a repeat offender on sentence for an alcohol related driving offence.The Supreme Court of Canada, in a judgment delivered by Moldaver J, recognised that the legislation made this a matter within the prosecutor’s discretion, and held [31]-[32], [35] that judicial review of the exercise of a prosecutor’s discretion is generally undesirable and would only be appropriate to prevent an abuse of process.

Prosecutorial discretion must be exercised independently of political or judicial interference [37]. Examples of discretionary matters are: whether to bring the prosecution of a charge laid by police, whether to enter a stay of proceedings in either a private or public prosecution, whether to accept a guilty plea to a lesser charge, whether to withdraw from criminal proceedings altogether, whether to take control of a private prosecution [40], whether to repudiate a plea agreement, whether to pursue a dangerous offender application, whether to charge multiple offences, whether to negotiate a plea, and whether to initiate an appeal [44].
These are only reviewable if there would be an abuse of process, that is, where there had been a flagrant impropriety, improper motives or bad faith, where the decision undermined the integrity of the judicial process, or where it would result in an unfair trial [49]-[51].

Judicial intervention can occur in the absence of abuse of process, where the conduct of a party interferes with the orderly and effective functioning of the court [58], but the conduct of litigants or counsel is to be distinguished from the conduct of litigation [59]. Tactical decisions about how a party will present its case will be deferred to by judges unless the situation is exceptional or trial fairness requires intervention.

Where official guidelines for prosecutors have been issued, although they may not have the force of law, a breach can indicate when the court should give weight to a defendant’s claim that a prosecutorial decision would give rise to an abuse of process [56].

See also: New Zealand Law Commission, Criminal Prosecution (NZLC R66, 2000) at [61]-[66], A v R [2012] EWCA Crim 434 at [83], R v DPP ex parte Kebilene [2000] 2 AC 326 at 371, Likiardopoulos v R [2012] HCA 37 per French CJ at [1]-[5].

A particularly important prosecutorial decision is, especially in cases of high public interest, a decision not to prosecute. Judicial review has a role here, especially where there is no practical means of private prosecution. But again, a plaintiff would have to demonstrate that the prosecutor, in deciding not to prosecute, considered an irrelevant matter, or failed to consider a relevant matter, or was wrong in law, or was plainly wrong. And even if the plaintiff could show that the prosecutor had failed to consider a relevant matter, or had considered an irrelevant matter, or had made an error of law (for example by being wrong about the legal elements of the alleged offence), the plaintiff will further have to satisfy the court that if the error had not been made the prosecutor could have decided to prosecute. Even then, the reviewing court could simply refer the issue back to the prosecutor for reconsideration.

The trial process provides protection against wrong decisions to prosecute, but there is little real and practical protection against decisions not to prosecute.

Wednesday, May 21, 2014

When the right hand unfairly finds out what the left has been doing

If something can go wrong, it will, and there can't be many criminal defence lawyers who will be surprised that there has been a glitch in relation to compulsory interviews concerning proceeds of crime.

See the discussion of X7 v Australian Crime Commission [2013] HCA 29 here on 27 June 2013, and Lee v New South Wales Crime Commission [2013] HCA 39 here on 10 October 2013.

By oversight, transcripts in relation to which there had been a suppression order were released to the prosecution before a criminal trial in Lee v The Queen [2014] HCA 20 (21 May 2014).

This went to the fairness of the trial, because the prosecutor obtained information about how the defence might be conducted and was put in a position to prepare cross-examination in the event that the defendant gave evidence. This was a forensic advantage to the prosecutor for which there was no legislative authority and which undermined the fundamental premise of a criminal trial, namely that the prosecutor is not entitled to the assistance of the defendant in pursuing a conviction.

There was no occasion here for a policy balancing of interests, such as occurs when evidence is improperly obtained [51]. Here the issue was not admissibility, but abuse of process. There could be no thought of applying the proviso, as it were, and saying that there was no substantial miscarriage of justice, because here the trial had been unfair. This was an example [48] of the kind of "serious breach of the presuppositions of the trial" referred to in Weiss v The Queen [2005] HCA 81 (discussed here on, for example, 25 June 2007). 

A retrial was ordered.

Was the trial unfair? Not in terms of the definition that emerges from case law: a trial where the law is accurately applied to facts determined impartially. The case was not concerned with whether the legal elements of an offence were accurately applied to facts determined without bias or without improper weight being given to particular items of evidence. The issue was not substantive fairness, but procedural fairness.

Procedural unfairness can be thought of as a kind of abuse of process. Here it concerned a breach of a fundamental right. Attention is on what the officials did, not on what the defendant did.

Sunday, May 18, 2014

Harmless lawbreaking by judges

There are times when judges fail to obey the law, in the conduct of trials, but that failure doesn't matter. For example, in Stout v R (British Virgin Islands) [2014] UKPC 14 (13 May 2014) the judge had not properly warned the jury about the dangers of reliance on hearsay evidence, yet, in the context of the trial, this did not affect the verdict and did not result in unfairness, and the Board upheld the conviction.

This does not mean that trial judges can ignore the law when they feel sure that the defendant is guilty and will be found guilty. The judicial oath requires of judges that they will administer and apply the law. The formal phrasing of the oath varies but typically contains the essential phrase "I will do right to all manner of people after the laws and usages of ... without fear or favour, affection or ill will".

So a judge who has failed to follow the law, but whose trial has survived an appeal, cannot simply relax in the coffee room and boast about getting away with it. The judge should feel a sense of shame and resolve to learn more about the law. And I don't know any judge who wouldn't.

The trial judge in Stout will learn that it is always necessary to explain to the jury that the absence of an opportunity to test the accuracy of the maker of a hearsay statement can be a significant disadvantage for a defendant [17]: 

"Hearsay evidence is indeed admissible, providing the necessary statutory conditions are met, and this evidence was admitted without objection. But it always suffers from the disadvantage that the jury cannot see the source of it and cannot see his accuracy tested. Of course, how far this disadvantage may affect the reliability of the evidence varies considerably from case to case, but it is important that the jury be confronted with the need to think about it."

And here there were two possible sources of error that the jury needed to be made aware of: the possibility that the original maker of the statement was wrong, and the possibility that the reporter of the statement was wrong.

"[17] ... The explanation or warning required is not of great complexity. In a case where the jury has seen other witnesses challenged and tested in their evidence it is usually simple to remind them of the process, to observe that a witness does not always leave the witness box with his evidence as secure as when he started and to invite them to remember that the hearsay evidence cannot be subjected to the same kind of examination."

There can be very good reasons why counsel in a trial may not object to the admission of hearsay evidence, as no doubt there were here - for example by using it to bring out inconsistencies in the prosecutor's case - but that does not absolve the judge of the responsibility to instruct the jury on the dangers and disadvantages of evidence of that kind.

Given that, as the Board concluded, the trial result was not affected by the judge's error, why was the trial fair if it was not conducted according to law? The answer is that none of the requirements of trial fairness were absent: the law (the elements of the offence of murder) was accurately applied to facts that were determined impartially. There was nothing in the trial that caused the jury to give inappropriate weight to any item of evidence to the extent that the jury could be called partial. Even if the jury had, as a result of not being adequately instructed on the dangers of hearsay evidence, given more weight than it otherwise would have to what the victim had reportedly said, there was sufficient other evidence in the case to make that error immaterial, in the sense that the same weight would have been given to the victim's statements in the light of other evidence.

Saturday, May 17, 2014

Assessing reasonableness of suspicion


When can a tip-off provide the police with reasonable grounds to suspect that an offence has been committed? 

If the informant is not known to the police, what circumstances can provide sufficient assurance of reliability to establish reasonable grounds for this suspicion?

General rules providing for criteria of reliability may be difficult to apply uniformly in actual cases, and judges may differ in the same case, as is illustrated by the 5-4 split in Navarette v California, USSC No 12-9490, 22April 2014.

Thomas J and Scalia J differed here, the former giving the opinion of the Court and the latter the dissent. The central issue here was the grounds upon which the police stopped a vehicle on a road, which must be borne in mind in jurisdictions where the police can stop without grounds any vehicle for a routine licensing and roadworthiness check.

But more generally, Navarette illustrates how descriptions of requirements for reliability (was the informant an eyewitness, had there been time for fabrication of the report, would a false report carry risks that the informant would be called to account, did the reported facts indicate criminal activity, did subsequent police activity dispel the inference of reasonable suspicion?) can undermine the protection against unreasonable search when the facts are assessed.

Scalia J cogently reasoned that the police activity - following a suspected drunken driver for five minutes without observing anything irregular about the driving - dispelled suspicion. On his evaluation of the evidence there had been time for fabrication - "Plenty of time to dissemble or embellish" - and there was no evidence that the informant knew of any difficulties there may have been in locating her, and there could have been many innocent explanations for the driving behaviour she reported. Further, the driving was observed by the police to have been irreproachable and it gave rise to no suspicion of any criminal activity. A drunk driver cannot (necessarily) decide to drive carefully when he sees that he is under police observation.

The case focuses on the lawfulness of the stopping of the vehicle. A subsequent smelling of marijuana led to search and discovery of 30 pounds of that drug in the vehicle. The case is not concerned with the question of whether the evidence would be admissible if the search had been illegal. Here there was no police misconduct, but on the other hand the police should be deterred from relying on inadequate grounds for a search. Problematically, the distinction between belief and suspicion is difficult to apply in practice, and an erroneous belief that a suspicion is reasonably based can be a slight error compared to the public interest in detecting serious crime. Still, expansion of what is considered to be reasonable grounds for suspicion makes it less necessary to consider the admissibility consequences of police actions in good faith (Illinois v. Rodriguez, 497 U.S. 177 (1990), cited in Findlaw, Annotation 6 - Fourth Amendment, fn 224).

Wednesday, May 14, 2014

Dangerous indifference

Recklessness as to whether a complainant is consenting to sexual activity is not the same as recklessness as to why the complainant isn't consenting. The latter is not an element of the offence, whereas the former is, for offences defined in statutory provisions the same as or similar to those considered in Gillard v The Queen [2014] HCA 16 (14 May 2014).

Broadly, the legislation defined sexual offences that are committed in the absence of consent, and specified occasions where consent is deemed not to have existed, for example where consent has been caused by abuse by the defendant of authority over the complainant. Knowledge of the complainant's non-consent is sufficient for liability, as is recklessness as to whether the complainant consents.

In this context the High Court held that recklessness means indifference to the complainant's consent (applying Banditt v The Queen [2005] HCA 80). Here, indifference to whether the complainant consented was not to be equated to indifference as to whether an exercise of authority over the complainant may have caused a consent which the statute deemed not to be consent. Of course the existence of such authority could be evidence of the defendant's indifference as to whether the complainant consented, but that would depend on the circumstances.

Here the prosecutor, with the judge's apparent approval, had invited the jury to conclude that the defendant was reckless as to consent because he was reckless as to the cause of any apparent consent. That was incorrect reasoning and a new trial on the relevant counts was ordered.

Indifference here is not simply an emotional attitude. It is a state of mind warranting criminal liability when it causes harm. It is not merely being rash or lacking caution (see my comment on Banditt here on 24 January 2006, referring to Lord Bingham's dictum in R v G). It is a determination to have one's way regardless of the other person's wishes.

Saturday, May 03, 2014

Paying for doing harm


For discussion of how to determine the amount of restitution (often in criminal law called reparation) a defendant should pay a victim whose online pornographic images he possessed, see Paroline v United States USSC No 12-8561, 23 April 2014.

The majority held that defendants should only be liable for the consequences of their own conduct, not the conduct of others. Courts must use discretion and sound judgment in fashioning restitution orders.

Roberts CJ, joined by Scalia and Thomas JJ, held that restitution could not be ordered here because the legislated standard for restitution left, in this case, the amount to be determined arbitrarily. Sotomayor J also dissented, holding that the legislation applied the tortious concept of liability of an individual defendant on a jointly and severable basis for the full amount of the victim's loss, and that accordingly an order for the full amount should have been made.

Friday, April 18, 2014

Article by Lord Phillips: Closed Material

As a special favour to yourself – a reward for a virtuous life – read the article by Lord Phillips on the way courts accommodate the need that some evidence be kept secret: Nicholas Phillips, “Closed Material” London Review of Books, Vol 36, No 8, 17 April 2014 (currently available here but don’t rely on this link surviving in perpetuity).

As the editor notes, “Nicholas Phillips retired in 2012 after three years as the first president of the UK Supreme Court. ‘Closed Material’ is a version of last year’s Blackstone Lecture, delivered at Pembroke College, Oxford.”

Many of the cases he mentions have been noted here: Chalal, Secretary of State for the Home Department v AF [2009] UKHL 28, and Secretary of State for the Home Department v MB [2008] 1 AC 440 here on 11 June 2009, AF again briefly here on 12 June 2009; A & Ors v. Secretary of State for the Home Department [2004] UKHL 56 here on 17 December 2004 (a case which Lord Phillips rates “as [the House of Lords’] most impressive decision in my lifetime”) and which moved me to quote, with rather spooky prescience, Montaigne; W (Algeria) & Anor v Secretary of State for the Home Department [2012] UKSC 8, here on 20 March 2012; Al Rawi v The Security Service [2011] UKSC 34, here on 14 July 2011; Roberts v Parole Board [2005] UKHL 45, here on 11 July 2005.

The case law led to the Justice and Security Act 2013 [UK], and Lord Phillips describes its passage through both Houses of Parliament from his perspective, focusing on disputes as to the criteria which should apply to any decision to permit the use of the closed material procedure (see now, ss 6(5) and 8(1)(c); it seems that efforts to impose more restrictive conditions on the use of the closed material procedure were unsuccessful). The enacted requirement is (broadly, and with qualifications) that “it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration” that a closed material application may be made, and an application must be granted if the court “considers that the disclosure of the material would be damaging to the interests of national security”.
Lord Phillips concludes,

“There is a danger that familiarity with the use of such a procedure will sedate those who use it against the abhorrence that the need to resort to such means should provoke. I would have been happier had the bill stated that it could be used only as a last resort.”

Thursday, April 17, 2014

Fairness and contempt proceedings

Procedural fairness in contempt proceedings is the topic of general interest in Dhooharika v The Director of Public Prosecutions (Mauritius) [2014] UKPC 11 (16 April 2014). Of subsidiary interest is the analysis of the common law offence of scandalising the court.

The appellant, a newspaper editor, had published comments that were subsequently held by the Supreme Court of Mauritius to have undermined public confidence in the independence of the judiciary and the administration of justice.

This offence of contempt requires that, as an actus reus, the act or writing published must carry a real risk that public confidence in the administration of justice will be undermined, and the mens rea is intentionally, or subjectively recklessly, undermining public confidence in the administration of justice [42], [48] – [49].

As to fairness [50]:

“ ... The Board understands that it may be necessary for the DPP in an appropriate case to take summary action and that a classic form of trial may not always be necessary, but the Board is of the clear view that the alleged contemnor is always entitled to a fair trial and that, depending upon the circumstances, he will almost certainly be entitled to call oral evidence on his behalf, including his own evidence. In the instant case the Board has formed the view that the appellant was, as a matter of practical fact, deprived of his right to give evidence on his own behalf.”

Since the trial was unfair the conviction could not stand [54], but independently of the fairness difficulty, the published comments were not proved to have been made in bad faith [57] (meaning that mens rea was not proved).

The conviction was quashed, but the Judicial Committee observed that the procedure at sentencing had been unfair [60]:

“[The Board] ... would have allowed the appeal against sentence on the simple ground that the appellant should have been afforded an opportunity to make submissions in mitigation before a conclusion as to the correct sentence was reached. The transcript shows that the court proceeded to sentence immediately after delivering its judgment on the merits. There were a number of points which could have been advanced on his behalf in support of the conclusion that a custodial sentence was not necessary. The experience of this case shows that the prosecuting authorities should be careful to remind the trial court of the need to hear and consider submissions that go to possible mitigation of the sentence before sentence is pronounced.”

The Board surveys the history of contempt by scandalising the court [21] – [26], and considers its continuing existence, particularly in Mauritius but also elsewhere in the Commonwealth [29] – [41] (especially at [38] and Annex 1 to the judgment).

And (this is me now, not the UKPC) aspects of the law of contempt remain uncertain. Perhaps because flexibility in procedure may be essential if contempt has to be dealt with urgently, statutory procedures leave some areas untouched. Are there occasions when a charging document should be filed and the usual criminal procedures utilised, even though dealing with the alleged contempt may fall only within the court’s inherent power (see O’Brien v R [2014] UKSC 23 (2 April 2014), noted here on 4 April 2014)? How can a charging document be filed if there is no enactment against which the contempt is alleged? If there is no charging document, how should the court record its orders? If civil procedures are adopted to initiate proceedings, to what extend do they colour subsequent steps?

Some points can be stated with confidence because they have been established by case law. As Finn, Mathias and Mansfield say in Criminal Procedure in New Zealand (Thomson Reuters, Westlaw NZ online) at [1.3.3]:

“Both common law and enacted contempt require the criminal standard of proof [footnote: Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] 1 WLR 2559, [2000] 2 All ER 814  (CA)]  and the alleged contemnor has the rights of a person charged. [footnote: Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [53]–[56] per Blanchard, Wilson and Anderson JJ]  Neither form of contempt carries a right to elect jury trial and all offences of contempt are subject to maximum penalties which are less than the level at which jury trial could be elected. [footnote: Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [60], [62]–[65] and [67] per Blanchard, Wilson and Anderson JJ, decided under the former law which gave the right to elect jury trial whenever (with a few exceptions, such as those which were mentioned in the Summary Offences Act 1981, s 43, with due respect to Tutu v R [2012] NZCA 294 at [19]) the maximum penalty was imprisonment for more than three months. Now all contempts are category 2 offences.]  The judge must identify the act or acts giving rise to the alleged contempt with sufficient particularity to ensure the defendant understands what is alleged, and must give the defendant the opportunity to take legal advice.”

Whether there is still a need for the common law offence of scandalising the court may be debatable, as is illustrated by the points made by Lord Pannick and referred to in Dhooharika at [28].

Our Law Commission is currently reviewing the law of contempt. And there is a particularly interesting paper by Professor ATH Smith, Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper available at Crown Law.

Friday, April 04, 2014

Points to file away ...

To do an act “with” the defendant
Policy was an important consideration in interpreting the phrase “to do an indecent act with or upon” the defendant in s 2(1B) of the Crimes Act 1961 [NZ], where the defendant, an adult, induced young people to masturbate in his presence but without any physical contact or overt participation by him: Y (SC40/2013) v R [2014] NZSC 34 (3 April 2014). The policy point is apparent at [16].

Equally interesting is the submission made for the appellant that the interpretation imposing liability on the defendant would amount to retrospective criminalisation, in view of decisions that appeared to suggest he would not be liable. At [27] the Court noted that the earlier decisions did not deal with situations where young people had performed the indecent acts, so this was not retrospective criminalisation.

Civil but contemptuous
The distinction between civil and criminal contempt of court was the basis for holding that extradition on a criminal matter did not operate to bar proceedings for an earlier civil contempt, in O’Brien v R [2014] UKSC 23 (2 April 2014). The distinction between civil and criminal contempt is mentioned at [37] – [40], [42]. It is the nature of the defendant’s conduct that determines the category of the contempt.