Aimed at promoting the study of technical aspects of criminal law and procedure, this site considers selected cases from the top appeal courts of Australia, Canada, the UK, the USA, the European Court of Human Rights and New Zealand. From August 2004 there have been approximately 780 entries, including book reviews.
Tuesday, October 13, 2015
Criminal Procedure in New Zealand, 2nd ed 2015
The second edition (hardcopy) of the criminal procedure text by Professor Finn and me will be available from 23 October, and may be ordered from Thomson Reuters NZ Ltd. Electronic formats, updated quarterly, are also available by subscription.
Sunday, September 06, 2015
Life, and the meaning of Proust
“In Search of
Lost Time” – what does that mean? It is the search for happiness, for the
connection between past happiness and the state of being in the present which allows
us to exist outside time and to enjoy the essence of things. It is the search
for that which is common to the past and the present and which is more
essential than both because it energises the desire to live.
“let
a sound, a scent already heard and breathed in the past be heard and breathed
anew, simultaneously in the present and in the past, real without being actual,
ideal without being abstract, then instantly the permanent and characteristic
essence hidden in things is freed and our true being which has for long seemed
dead but was not so in other ways awakes and revives, thanks to this celestial
nourishment.”
Although the
book has strong themes of unequal love, of jealousy, hatred and disgust, of
death and grief, there is also an irrepressible happiness. The point is that,
although time will eventually drag us all down, it is only the extent to which our
spirit has soared with the joy of life that really matters.
Saturday, September 05, 2015
Proust posting 3: On human nature
Contemplation
of human nature calls to mind the relationship between what we think and what
we do. Proust found human nature endlessly (yes) interesting. Here, among his
observations, are my favourites:
A. Our place in society
Everyone has
their place:
“ “Oriane,”
(at once Mme. des Laumes looked with amused astonishment towards an invisible
third, whom she seemed to call to witness that she had never authorised Mme. de
Gallardon to use her Christian name).”
And we want
to be superior:
“she never
gets a chance of being a snob; she doesn’t know anyone.”
We mark our
superiority politely:
“She treated
each of them with that charming courtesy with which well-bred people treat
their inferiors ...”
“... “But you
are our equal, if not our superior,” the Guermantes seemed, in all their
actions, to be saying; and they said it in the most courteous fashion
imaginable, to be loved, admired, but not to be believed; that one should
discern the fictitious character of this affability was what they called being
well-bred; to suppose it to be genuine, a sign of ill-breeding. ...”
“... they are
naturally polite to anybody, as beautiful women are glad to bestow a smile
which they know to be so joyfully received. ...”
“... he was
sufficiently persuaded of his own importance to be able to mix with the very
humblest people.”
B. Our relationships
We get over
people:
“Nothing can
be more affectionate than this sort of correspondence between friends who do
not wish to see one another any more.”
We disconnect
mutually:
“... the
fiction of a mutual incognito, on hearing her friend’s name from the manager
she merely looked the other way, and pretended not to see Mme. de Villeparisis,
who, realising that my grandmother did not want to be recognised, looked also
into the void.”
We try to
impress:
“ “In fact,
it was drolatic,” put in M. de Guermantes, whose odd vocabulary enabled people
in society to declare that he was no fool and literary people, at the same
time, to regard him as a complete imbecile.”
Aggressively
we try to deflect criticism:
“... people
against whom certain things may be hinted like to shew that they are not afraid
to mention them.”
Gaydar alert!
“There is a
special kind of glance, apparently of recognition, which a young man never
receives from certain women — nor from certain men — after the day on which
they have made his acquaintance and have learned that he is the friend of
people with whom they too are intimate.”
C. Our own natures
I’m nasty,
but funny with it:
“... it’s
often difficult not to be a little spiteful when one is so full of wit ...”
“... “Mme.
Verdurin, why, I used to know her terribly well!” with an affectation of
humility, like a great lady who tells you that she has taken the tram.”
Stress can
reveal us as essentially silly:
“... an
exclamation the silliness of which kept him from sleeping for at least a week
afterwards. His remark was of no great interest, but I remembered it as a proof
that sometimes in this life, under the stress of an exceptional emotion, people
do say what is in their minds.”
Meaning can
get lost when one has to be polite:
“... she
answered as she did, in order not to seem to be unaware of what I meant, as in
a conversation one assumes an understanding air when somebody talks of Fourrier
or of Tobolsk without even knowing what these names mean. ...”
“... the
sterile pleasure of a social contact which excludes all penetrating thought”
Our errors
compound:
“... the
ill-balanced mentality of early manhood (a period in which, even in the middle
class, one appears ungrateful and behaves like a cad because, having forgotten
for months to write to a benefactor after he has lost his wife, one then ceases
to nod to him in the street so as to simplify matters),...”
We can have a
self-perpetuating insecurity:
“But he was
so anxious not to let it be seen that he was not sought after, that he dared
not offer himself. ...”
“... “You
don’t happen to know what you will be doing in the next few days, because I
shall probably be somewhere in the neighbourhood of Balbec? Not that it makes
the slightest difference, I just thought I would ask you.” This air deceived
nobody, and the inverse signs whereby we express our sentiments by their
opposites are so clearly legible that we ask ourselves how there can still be
people who say, for instance: “I have so many invitations that I don’t know
where to lay my head” to conceal the fact that they have been invited nowhere.”
We can try to
wound with silence:
“M. de
Charlus made no reply and looked as if he had not heard, which was one of his
favourite forms of insolence.”
We like to be
noticed:
“ “You are
the talk of the Conservatoire,” she added, feeling that this was the argument
that carried most weight; ...”
Our attacks
are justified:
“People are
not always very tolerant of the tears which they themselves have provoked.”
We must make
an effort to be social:
“... said the
Duchess, making an effort in order to speak of a matter which did not interest
her.”
The children must
get established:
“... the
great receptions given by Mme. de Marsantes and Mme. de Forcheville, given year
after year with an eye chiefly to the establishment, upon a brilliant footing,
of their children, ...”
There are
times when we must appear decent:
“... he
assumed the modest air of one who is not asking for payment.”
Friday, September 04, 2015
Proust on how to write a great big book
Continuing
from last time ... Twelve tips from the master:
1. All this
writing and just one book?
“I
explained to Albertine that the great men of letters have never created more
than a single work ...”
2. The grind
gets it done:
“it
is not the desire to become famous but the habit of being laborious that enables
us to produce a finished work ...”
3. The effort
can even be tiring:
“Perhaps
some of the greatest masterpieces were written yawning.”
4. Don’t
admit to being unoriginal:
“In
this book ... there is not a single event which is not fictitious, in which
there is not a single personage “a clef”,
where I have invented everything to suit the requirements of my presentation
...”
5. Just
because I use the first person, doesn’t mean it’s me!
“As
soon as she was able to speak she said: “My ——-” or “My dearest ——” followed by
my Christian name, which, if we give the narrator the same name as the author
of this book, would be ‘My Marcel,’ or ‘My dearest Marcel.’”
6. It’s
really about YOU:
“every
reader, as he reads, is the reader of himself.”
7. Obsessive
writer, obsessive reader:
“the
writer, in creating each character, would have to present it from conflicting
standpoints so that his book should have solidity, he would have to prepare it
with meticulous care, perpetually regrouping his forces as for an offensive, to
bear it as a load, to accept it as the object of his life, to build it like a
church, to follow it like a régime, to overcome it like an obstacle, to win it
like a friendship, to nourish it like a child, to create it like a world,
mindful of those mysteries which probably only have their explanation in other
worlds, the presentiment of which moves us most in life and in art.”
8. Don’t be
preachy-preachy – or at least don’t admit to it:
“that
vulgar temptation of an author to write intellectual works. A great indelicacy.
A work in which there are theories is like an object upon which the price is
marked.”
9. They won’t
understand!
“I
was soon able to show an outline of my project. No one understood it.”
10. Be your
own favourite author:
“I
read the article [that I had written] forcing myself to imagine that it was
written by some one else. Then all my images, all my reflexions, all my
epithets taken by themselves and without the memory of the check which they had
given to my intentions, charmed me by their brilliance, their amplitude, their
depth.”
11. Just reveal
the great universal laws of human nature:
“It
is the feeling for the general in the potential writer, which selects material
suitable to a work of art because of its generality. He only pays attention to
others, however dull and tiresome, because in repeating what their kind say
like parrots, they are for that very reason prophetic birds, spokesmen of a
psychological law. He recalls only what is general.”
12. And remember,
for the publisher it’s all about the money:
“the
impenetrable solidity of certain commercial houses, booksellers’ for example or
printing presses, where the wretched author will never succeed, notwithstanding
the diversity of the persons employed in them, in discovering whether he is
being swindled or not.”
Tuesday, September 01, 2015
Marcel the joker
In search of lost laughs
I have just
finished reading Proust’s “In search of lost time”, in the translation by CK
Scott Moncrieff (vol 1-6) and Sydney Schiff (vol 7), Centaur Editions, available
on Kindle.
Literary
types argue over the merits of this translation, and it has been contended that
it is better than the original French – a mischievous wit suggested that, if so,
it should be translated back into French.
Proust could have fun:
...
he began once more to cough and expectorate over me. “Don’t tire yourself by
trying to speak,” I said to him with an air of kindly interest, which was
feigned.
...
he said of one of M. Verdurin’s footmen: “Isn’t he the Baron’s mistress?”
“...
You must know far more than I do, M. de Charlus, about getting hold of sailors.”
...
his stock of Latin quotations was extremely limited, albeit sufficient to
astound his pupils.
...
he had that detailed knowledge of Paris only to be found in people who seldom
go there.
She
looked like an exhausted swimmer far from shore who painfully manages to keep
her head above the waves of time which were submerging her.
...
the Duchesse de Guermantes’ cheeks which had remained remarkably unchanged
though they now seemed compounded of nougat ...
His
formerly brick-red skin had become gravely pale; silver hair, slight stoutness,
Doge-like dignity and a chronic fatigue which gave him a constant longing for
sleep, combined to produce a new and impressive majesty.
Somebody
mentioned a name and I was stupefied to know it applied at one and the same
time to my former blonde dance-partner and to the stout elderly lady who moved
ponderously past me.
...
the Princesse de Guermantes’ locks, when they were grey, had the brilliance of
silvery silk round her protuberant brow but now having determined to become
white seemed to be made of wool and stuffing and resembled soiled snow.
He
declared that I had not changed by which I grasped that he did not think he
had.
...
for three years she had been taking cocaine and other drugs. Her eyes deeply
and darkly rimmed were haggard, her mouth had a strange twitch.
“You
took me for my mother,” Gilberte had said and it was true. For that matter it
was a compliment to the daughter.
For
this American woman, dinner-parties and social functions were a sort of Berlitz
school. She repeated names she heard without any knowledge of their significance.
So
people said: “You’ve forgotten. So and so is dead,” as they might have said:
“He’s decorated, he’s a member of the Academy,” or — which came to the same
thing as it prevented his coming to parties — “he has gone to spend the winter
in the south ” ...
Hearing
that Mme d’Arpajon was really dead, the old maid cast an alarmed glance at her
mother fearing that the news of the death of one of her contemporaries might be
a shock to her; she imagined in anticipation people alluding to her own
mother’s death by explaining that “she died as the result of a shock through
the death of Mme d’Arpajon.” But on the contrary, her mother’s expression was
that of having won a competition against formidable rivals whenever anyone of
her own age passed away.
Monday, July 06, 2015
Messing with LCN DNA
The delights
of Bayesian probability reasoning are sufficient to draw from me another case
comment!
Our Court of
Appeal, in Manoharan v R [2015] NZCA 237 (11
June 2015), has said that a likelihood ratio of 20 (meaning 20 to 1, or in context, 20 times more likely under the prosecutor's hypothesis than under the defendant's) is “not strong” [52].
This was an
LCN DNA analysis and obviously compared to the usual DNA results of likelihood
ratios in the many millions, 20 is not high. But in the context of a case it
can be, as can be seen from the results of applying Bayes’ Theorem (this was a single-issue case involving independent items of evidence).
I should emphasise that the single-issue nature of this case ("who did it?", an actus reus issue) simplifies the use of Bayes' theorem. Where several elements of the offence charged are in issue, the theorem must be applied to each separately, and only evidence relevant to that issue is used in each application. This prevents, for example, a huge scientific LR on the issue of identity from swamping the issue of intention. For each issue the "probability of guilt" means the probability that that issue is proved to the standard required for it to be established.
The likelihood ratio used by the scientists in declaring a match is not necessarily the same as the likelihood ratio for the activity evidence used by the fact-finder in the trial. This is because the defence may have an innocent explanation for the match which brings the denominator of the likelihood ratio (the probability of getting the match on the assumption that the defendant is innocent) close to the value of the numerator. Then, the probative value of the test result for the prosecutor would be very reduced or even extinguished.
We can compare what the probability of guilt would have been if the scientific LR had been in the millions and the trial LR numerator approximately 1, with what the probability of guilt would be under the revised scientific LR and corresponding new trial LR, for priors-in-combination (by which I mean, the ratio of probability of guilt to probability of innocence, based on all the other evidence in the case and the starting assumption about the probability of guilt and the probability of innocence, for this single-issue case) of various levels. (For multi-issue cases the priors will be assessed separately for each issue.)
I should emphasise that the single-issue nature of this case ("who did it?", an actus reus issue) simplifies the use of Bayes' theorem. Where several elements of the offence charged are in issue, the theorem must be applied to each separately, and only evidence relevant to that issue is used in each application. This prevents, for example, a huge scientific LR on the issue of identity from swamping the issue of intention. For each issue the "probability of guilt" means the probability that that issue is proved to the standard required for it to be established.
The likelihood ratio used by the scientists in declaring a match is not necessarily the same as the likelihood ratio for the activity evidence used by the fact-finder in the trial. This is because the defence may have an innocent explanation for the match which brings the denominator of the likelihood ratio (the probability of getting the match on the assumption that the defendant is innocent) close to the value of the numerator. Then, the probative value of the test result for the prosecutor would be very reduced or even extinguished.
We can compare what the probability of guilt would have been if the scientific LR had been in the millions and the trial LR numerator approximately 1, with what the probability of guilt would be under the revised scientific LR and corresponding new trial LR, for priors-in-combination (by which I mean, the ratio of probability of guilt to probability of innocence, based on all the other evidence in the case and the starting assumption about the probability of guilt and the probability of innocence, for this single-issue case) of various levels. (For multi-issue cases the priors will be assessed separately for each issue.)
A perspective on the size of a LR of 20 is obtained from considering a case where the evidence is not given, compared to one where it is.
- If, without the evidence, the probability of guilt is 0.90, then with the evidence that probability increases to 0.99.
- If, without the evidence, the probability of guilt is 0.60, then with the evidence that probability increases to 0.96.
- And, if, without the evidence, the probability of guilt is 0.30, then with the evidence that probability increases to 0.89.
Update: on 28 October 2015 the Supreme Court refused leave to appeal: Manoharan v R [2015] NZSC 156. The Court could see no basis to indicate that the Court of Appeal had been wrong when it had held that there had been no miscarriage of justice.
Another update: Bernard Robertson has commented on this case in"Likelihood ratios in evidence" [2016] New Zealand Law Journal 22. He points out that the Court at [39] correctly describes the witness's evidence as stating a likelihood ratio, but earlier in the judgment, at [17], it had transposed the conditional when referring to the same evidence. Mr Robertson also points out that the "20 times more likely" assertion should have been clarified because juries will not know what to do with a likelihood ratio, and that in this case source level propositions (where the sample at the scene came from) were mixed with activity level propositions (how it got there).
Saturday, July 04, 2015
Search seminar
Sunday, May 31, 2015
Proportionality and the Rule of Law
As you know –
although I’m sure you wouldn’t admit it in front of your drinking buddies –
there are few more enjoyable ways of spending a wet Queen’s Birthday holiday weekend
than by struggling to understand a book written in technical language that you
feel you should understand.
So it is with
Proportionality and the Rule of Law:
Rights, Justification, Reasoning (CUP, 2014), a collection of essays by 18 contributors, edited by Grant Huscroft, Bradley W Miller, and Grégoire Webber.
I can only
speak of the Introduction, as the book is rather expensive, and even the ebook
seems over-priced. At least Amazon gives us a free sample, which includes the
very excellent (as opposed to sort-of excellent?) Introduction by the editors.
So my little
game, if you think of it like that, is to translate into ordinary lawyers’
English the technical language of the Introduction. But beware of the risk that
I do this with a clarity born of misunderstanding.
“Proportionality”
has a range of meanings and can refer to a method or to a goal of decision-making.
I wouldn’t want to confuse it with other kinds of decision-making, such as
logic, formalism (the application of rules to facts), morality (what would be
the morally right decision), pragmatism (what result would work), although
there can be some overlap.
Balancing of
competing values is a proportionality method of decision-making. So is the
rather different ends/means balancing, but this can be seen as a method or as a
goal. Using reasonableness to limit what is acceptable is also a
proportionality method. Sometimes proportionality endangers rights, in balancing
them against other values, and sometimes it compromises moral values, where
what is right yields to a greater right or some greater interest.
What happens
to rights in proportionality reasoning can vary. Rights are not necessarily
eroded in the balancing process, which will usually recognise their enhanced
weight by virtue of their status as rights, but if an issue of limitation is
being considered then there is a risk of erosion if proportionality requires
that.
Proportionality
can require recognition of the autonomy and dignity of the person, and this may
guide the interpretation of legislation. Legislators, however, may have a
greater awareness of rights and social interests than do courts, so executive decisions
should be judged by their method rather than their outcome. This concern would
limit the role of proportionality reasoning. Indeed, it is arguable (although I
am not convinced by this) that proportionality is too abstract a method to be
of use to judges.
You could say
that morality is important and that proportionality reasoning is not a complete
method for judicial decision-making. There are risks attending proportionality
reasoning: irrelevancies may be taken into account, things that are doubtful
may be treated as certainties, a judge may yield too much to extraneous
determinations, aspects of the public good may be ignored, and a judge may have
resort to a personal political philosophy.
In their
conclusion to the Introduction the editors ask some pertinent questions, which the
essays apparently leave the reader to consider. I put these in my own words,
sacrificing the subtleties. Does proportionality erode rights? What about
absolute rights? Should judges take more account of the reasons that motivate
enactments? Should legislators, rather than the courts, use proportionality
reasoning? Where proportionality reasoning includes morality, does it prefer
some moral theories over others? How should the dangers of proportionality
reasoning by courts be overcome?
Saturday, May 09, 2015
I doubt, therefore I am, but what are you?
In Seeing Things as They Are (OUP, 2015)
John R Searle gives idealism a long-deserved slap. “There
is something tragic about the massive waste of time involved in the whole
tradition of idealism.” (P 93, footnote 10, if my Kindle app pagination
is accurate.)
Idealism is
that philosophy which claims that the only things we have perceptual access to
are our own subjective experiences: all we can ever perceive are our own
subjective impressions and ideas (Descartes, Berkeley, Hume), we can never have
knowledge of things in themselves (Kant), we can only perceive sense data
(Ayer). Searle’s position is that idealism leaves us with essentially an
unbelievable conception of our relation to the world (p 231).
I am not able
to review the book, [Update: here is a review by Josh Armstrong in the LA Review of Books.] but you may wish to view this YouTube clip of a
seminar conducted by Searle which substantially overlaps the subject-matter of
this book and gives a sense of the technical language generated by
philosophical contemplation of perception.
Searle makes
an interesting observation about El Greco and whether the painter had defective
vision (p 141):
“The hypothesis ... that he painted distorted figures because a
normal stimulus looks distorted to him makes no sense, because if he is
reproducing on the canvas what produces distortions in him, then he will simply
reproduce what looks normal to the rest of us.”
This has
implications not mentioned by Searle but which will occur to lawyers. Would El
Greco have described in words an obviously distorted image? Are errors in one
mode of perception only apparent to other people when translated into a
different mode of communication? If a witness describes what was seen, will
that description necessarily correspond to the witness’s visual perception? How
should a verbal description of what was seen be checked?
Judicial
accounts of how facts are determined give no assurance of their correspondence
with reality. As EW Thomas observes in The
Judicial Process (CUP, 2005) at p 321, “The facts are the fount of
individual justice” but there is scope for improvement in the ways they are
determined. For example, there is too much weight placed on the demeanour of
witnesses (324), and truth, as far as the system will permit “can be gleaned from a close reading of the contemporaneous
documentation, if any, or an analysis of the probabilities intrinsic to the
circumstances and about which there may be little or no dispute” (325).
As a senior appellate judge, Thomas cautions that
“what judges must not do is fill an unresolvable gap with a
judicial ‘hunch’. To do so is to succumb in part to what I have perhaps
unkindly labelled the ‘God Syndrome’. Anecdotal evidence suggests that the God
Syndrome settles on some judges shortly after their appointment to the Bench
... [and] many appellate judgments would be edified if judges at that level did
not show an unhealthy preparedness to adopt a version of the facts which cannot
be found in the [trial] judge’s findings of fact or in the transcript of the
evidence itself. ... The God Syndrome does not strike at first instance only.” (326)
The resort to
assessment of probabilities to assist in determining facts is also referred to
by Richard A Posner in How Judges Think
(Harvard UP, 2008). He uses (65) Bayesian decision theory to illustrate how,
before a witness even testifies, a judge will have formed an estimate that the
testimony will be truthful, based on experience with witnesses in similar cases
(including when the judge was a lawyer), on a general sense of the honesty of
the class of persons to which the witness belongs, or even the way in which the
witness enters court and approaches the witness box. It would, says Posner
(67), be irrational for judges to purge themselves of this way of thinking.
And the
sneakiness of some appellate judges does not escape Posner’s comment (144):
“ 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.”
(I mention in
passing – just to show that some judges do read each other’s books - that at
261 footnote 63 Posner cites Thomas’s book.)
Posner had
also discussed the difficulties of ascertaining, from evidence given in the
courtroom, the reality of what happened, in The
Problems of Jurisprudence (Harvard UP, 1990), particularly at 203-219. He adds
(217):
“The celebration by lawyers and judges of the “fairness” of a
system in which it is thought better to acquit ten guilty defendants than to
convict one innocent defendant is an attempt to put a good face on what is
actually a confession of systemic ineptitude in deciding questions of guilt and
innocence.”
Ah yes, there’s
nothing like a little philosophy to make you have doubts about everything
(except your existence).
Friday, April 17, 2015
Book review: Final Judgment – The Last Law Lords and the Supreme Court by Alan Paterson (2013)
Every
barrister should read this book. Even if you don’t particularly care about the
goings-on in the Supreme Court of the United Kingdom, there are things here
about advocacy and the politics of multi-judge courts that make fascinating
reading.
The overall
quality of Professor Paterson's writing is so good that we should forgive his solitary and
incorrect mention of New Zealand. It seems his view of the world is not this
one:
There are
many reviews of this work online, some of which summarise it in detail. So I
will just mention some points and leave you to get your own copy.
Oral advocacy
is quite a different exercise from written advocacy. Quoting Michael Beloff QC
in Chapter 2:
“One
wants to reserve something quite deliberately for oral advocacy— as it were to
take a forensic punch, to start off with something that captures their imagination
immediately.”
Paterson
notes that an appeal before the final court has involved a conversational style
of advocacy:
“[Metaphors]
ranged from ‘an academic seminar’ or Oxbridge tutorial, to ‘an informed dialogue’,
and ‘a dialectic between Bench and Bar’, which resembles nothing so much as a
‘conversation between gentlemen on a subject of mutual interest’. [footnotes omitted]
And one needs
to be sensitive to when the court has heard enough:
“Lord
Bingham had a way of saying ‘Yes’ which would quicken and multiply if counsel
failed to take the hint.”
Questions
from the judges can’t be ignored:
“Whilst
the judges in the final court can use the dialogue to constrain counsel’s
arguments as we have seen, they also use the dialogue to clarify what counsel
are arguing, to test counsel’s arguments, and to put their own theories of the
case to counsel.”
And:
“
… in general the least helpful thing that counsel can do is to decline to
engage in the dialogue. This as Lord Bingham observed, is almost a golden rule
of appellate advocacy and reinforces the point that it is about dialogue rather
than sequential monologues.”
An anonymised
leading counsel is reported as saying:
“A
fluent and compelling response to an adverse judicial intervention is the holy
grail of oral advocacy.”
And further,
“However
clever the Lords are they’re not computers, they’re human beings and you’ve got
to make them want to decide in your favour, and that’s what advocacy means,
it’s working out a way of making them feel comfortable coming with you.”
Courageous
advocacy means having the courage to rely on your strongest point, and not
needing to refer to lesser ones. Sir Patrick Hastings KC is quoted:
“The
ability to pick out the one real point of a case is not by itself enough; it is
the courage required to seize upon that point to the exclusion of all others
that is of real importance.”
That’s enough
to give you a sense of this topic, which Paterson treats in considerably more
detail.
The book
concentrates on the various lines of communication that influence judges: with
counsel, with other judges on the same bench, with other courts locally and
internationally, with parliament and the executive, with law reform bodies. The
analysis of statistical information on outcomes is as detailed as it could
possibly be, and is a model for the sort of analysis that could be applied to
any multi-judge court.
The
discussion of how judges decide cases is fascinating too. Meetings before and
after oral argument, decisions on who should write the lead judgment, discussions
during the writing process (including with the judicial assistants), exchanges
of drafts, types of concurrence and the value of dissents are all examined with
the benefit of the author’s extensive interviews with the Law Lords and, later,
the Justices, as well as with senior counsel. We learn about different types of
judicial personality (including observations on Lord Diplock that force one to
conclude he was an arse) and the tendency of judges to reflect ordinary group
decision behaviour by wanting to stick with conclusions they have expressed at
an early stage. It is common for people not to know their own thoughts until
they express them in words, and meetings at an early stage may lead to
premature conclusions and fixed views. The early drafts of a judgment may force
a judge to recognise an error in thinking.
Lord Hoffman
is quoted on this:
“
… I must have written about eight or nine drafts of a supporting judgment. I
was not satisfied that I’d got it right in any of these drafts and I’d tried
this way and that way and eventually it seemed to me the reason why I wasn’t
getting it right was because I was wrong. So I changed sides at that point and
it went 3: 2 the other way.”
An
illustration of interactions and changes of position is given in discussing R v Waya [2012] UKSC 51 (which I have
commented on here on 2 January 2013). Paterson describes what went on:
“Since
they could not agree on the outcome of the case, it was re-heard before an
expanded panel of nine in March 2012. After the first conference (really the
second conference [ie the
meeting that occurs immediately after oral argument]) the Justices were once again unable to produce a majority position. Lord
Phillips suggested that they put their thoughts on paper and eventually a
majority position emerged. Lord Reed, who had come in for the second hearing
thought that the confiscation order should be set at zero. He laboured long and
assiduously to produce his dissent and circulated it before the majority. When
the latter came, their position had changed to take account of his dissent.
Lord Reed then agreed on a joint judgment with Lord Phillips and withdrew the
bulk of his dissent. In all it took 288 days from the second hearing to the
final judgment. In part this was a product of the team-working of today’s
Supreme Court which eventually produced a conjoined majority and a conjoined
minority judgment. However, if the same case had arisen in Bingham’s time it
might well have been a case where he approved of a single judgment in order to
provide guidance to the lower courts.”
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