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.
Saturday, July 04, 2015
Search seminar
Notes
for the talk on the law of search that I gave at the Auckland District Court on
1 July are available here.
They are complementary to the more detailed paper that has been distributed to
lawyers, and now is available here.
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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