Monday, July 21, 2014

When is fairness intolerable?

The right to legal advice was central to R v Taylor, 2014 SCC 50 (18 July 2014). The defendant had requested legal advice but this request was not acted on during the collection of a blood sample which was of central importance on an alcohol-related driving offence. On conducting the balancing exercise in accordance with R v Grant (discussed here on 19 July 2009) the Court held that the improperly obtained evidence was inadmissible.

The right to legal advice is closely associated with the right to silence. A motive for refusal of access to a lawyer, it may be reasonably be conjectured, could be that the police do not want the suspect to exercise the right to silence. And the right to silence is of fundamental importance: it is a corollary of the obligation on the prosecutor to prove the charge, and of the need to do so without the assistance of the defendant.

The right to legal advice has previously been the subject of commentary here: see Cadder v HM Advocate [2010] UKSC 43 (here on 27 October 2010), R v Sinclair [2010] SCC 35 (here on 15 October 2010), Salduz v Turkey [2008] ECtHR 1542 (here on 3 December 2008).

The central issue highlighted in those comments is whether a breach of the right to legal advice raises fair trial issues, in which case a balancing exercise is not appropriate (but an exclusionary rule is), or whether it raises issues of public policy, where balancing of competing interests is appropriate.

It is easy to forget history and to say that the issue of the admissibility of evidence obtained in breach of the right to legal advice is an issue of policy. The Birmingham Six abuses of police power, and the manufacture of false confessions, came as a shock to British justice, and drove home the importance of the right to silence and the vulnerability of people who are held in custody.

In his wonderful article in The London Review of Books, vol 15 no 21 (4 November 1993) “A sewer runs through it”, Alastair Logan (a solicitor whose clients included the Guildford Four and the Maguire Seven) noted that research presented to the Royal Commission on Criminal Justice

“shows that 42 percent of those who were arrested and detained in police stations during the currency of the Commission were educationally subnormal or of borderline intelligence; another 7 percent were suffering from defined mental illnesses. The average IQ of detained persons was 82. One third were intellectually impaired, and 35 percent were not in a normal mental state due to extreme distress, mental disorder or drugs. Twenty percent were suffering from an unusually high level of anxiety and distress. About 20 percent required the assistance of an adult to safeguard them and their rights, though the police identified only 4 percent of that number as requiring such protection. The police commonly failed to recognise that detained persons suffering from depression were vulnerable. There is no systematic training available to police officers to enable them to identify vulnerable suspects or mental disorder. The removal of the right to silence attacks the vulnerable and the disorientated, who massively outnumber the terrorists and the professional criminals, in or out of uniform.”

It is very easy, in cases like Taylor where the alleged offending is not of the most serious kind, for courts to conclude that a balancing exercise favours exclusion of evidence obtained in breach of the right to legal advice. Indeed, in Taylor the Court was not concerned to explore what advice the defendant could have been given [41], or in what way absence of legal advice may have prejudiced his defence. For more serious allegations the balancing exercise may well include such considerations. Yet it is when being held in custody on more serious allegations that a person will be most in need of the protection of the right to legal advice, and a court would have to consider whether use of evidence improperly obtained from a vulnerable defendant really promotes respect for the law.

Support for determination of admissibility of improperly obtained evidence by a balancing of policy interests is found in the seemingly ever-present fear that those defendants who face the most serious charges will have to have fair trials.

Thursday, July 17, 2014

Noted in passing ...

Three recent decisions:

Of narrow interest is R v Quesnelle, 2014 SCC 46 (9 July 2014) on when a defendant can have copies of reports, recorded by the police, of a complainant’s allegation of other offending. At issue was the construction of the Criminal Code, ss 278.1 to 278.91.

Slightly more interesting is R v Sipos, 2014 SCC 47 (10 July 2014) on when an appellate court should receive fresh evidence if it finds error of law, or unreasonableness, in the decision of the court below. Further, recognising that there can be a greater role for fresh evidence when the issue is unreasonableness, the appellate court may nevertheless conclude that even if the errors were corrected, or the fresh evidence were to be taken into account, the decision of the court below should be upheld. The context of this appeal was a sentencing determination of the defendant’s dangerousness, Criminal Code ss 753, 759.

And also of interest – at least for its quirky facts - is the ‘apparent bias’ case of the Judicial Committee, Yiacoub v R [2014] UKPC 22 (10 July 2014), holding that a judge whose decision is to be appealed may not take part in the selection of the appellate bench:

“[15] The difference in the present case is that the Presiding Judge found himself not simply appointing a judge to deal with a matter of general concern, but nominating a judge to hear an appeal from himself. The Board is satisfied that that carries an appearance of lack of independence and impartiality in relation to the process, viewed as a whole, which would impact on an objective informed observer. It is not difficult to imagine circumstances, under other regimes, in which such a process could be open to abuse of the kind not suggested here to have occurred in fact. The objective observer would, as it seems to the Board, say of such a process ‘That surely cannot be right’.”

Here, those gender pronouns are appropriate because the reference is specifically to a male judge, but it is an interesting – or moderately interesting – and not a particularly easy exercise to rework that first sentence into gender-neutral English. You may need to resort to more than one sentence, for example (and I’m not suggesting this is the best way of doing it):

“The difference in the present case is that the Presiding Judge was not simply appointing a judge to deal with a matter of general concern. Rather, the appointed judge was to hear an appeal from the Presiding Judge’s own decision.”

Thursday, July 10, 2014

Unnecessary gender pronouns in legal writing

One of the advantages of writing is that an author has more time to think about how to put into words a thought that a speaker may only clumsily express.

Writing can be more aesthetically pleasing that speech, even if both forms of the language comply with grammatical rules.

A phrase which is acceptable when spoken, such as “he or she”, “his or her”, and similar conscientious efforts at avoiding sexist language, can disrupt the flow of the printed word. There are cleverer ways of avoiding sexism in writing.

It is never necessary to refer to a neutral noun with a gender-specific pronoun. And an aggregate of gender specific pronouns is a clumsy way of attempting neutrality. It is equivalent to the foolish thought, “Oh, I just wrote ‘he’, so now I have to write ‘or she’”. Better not to have unnecessarily written ‘he’ in the first place.

Textbook writers can be awful at this, and I admonish myself here too. They are usually associated with institutions that are particularly careful about sexism - and rightly so - but its avoidance tends to dominate concern about how something is written. Focus is, in such cases, and perhaps understandably, on what is written rather than how it is written.

The highest appellate courts whose judgments I consider here very rarely use expressions like “he or she”. From judgments handed down in June and July there are the following instances, which are like the kind of English written by judges’ clerks.

Judge’s English: “Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence.”

Better English: Accordingly a prisoner can be recalled under section 255 even if the conditions of the licence have been fully complied with.

Judge’s English: “I appreciate, of course, that the judge imposes the sentence which he or she thinks correct, without regard to the right to early release.”

Better English: I appreciate that the judge imposes the sentence which is thought to be correct, without regard to the right to early release.

Judge’s English: “The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”

Better English: The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where the need is seen for further inquiries, but a choice is deliberately made not to make those inquiries.

Going back to May (just for the sake of pointing a finger at the HCA), we find: Judge’s English: “An accused person may be prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case.”

Better English: The defence may be prejudiced because it is no longer possible to determine the course to take at trial by reference only to the strength of the prosecution case.

Note that in the second example I have omitted the judge’s phrase “of course”. Bernard Williams was good on this: it can indicate “a knowing condescension to whatever view is being interrogated, from the standpoint of some other, vaguely implied, view which would itself be patronised and ridiculed if it were being questioned.”

And to be fair, here is an example of one of my own clumsinesses in a textbook:

I wrote: “A defendant who successfully completes diversion will be told by the police that he or she does not have to reappear in court ...”

Oh, if only I had written: A defendant who successfully completes diversion will be told by the police that further appearance in court is not required ... .

Previously, here on 19 December 2013 I have mentioned pronouns in legislation in the context of the power of Chief Parliamentary Counsel to adjust legislation to conform to current drafting standards. In a recent NZSC case, on which I have not yet commented, the Court refers to the now-repealed s 381A of the Crimes Act 1961. The current provision is s 296 of the Criminal Procedure Act 2011, which commendably avoids gender pronouns. But the old version included this:

381A(2): The prosecutor must apply as soon as reasonably practicable after the Judge gives his or her reasons for the direction, and in no case later than 10 days after the reasons for the direction are given.

This "his or her" is unnecessary. There is no need for pronouns here. The subsection makes perfect sense revised to read:

 "The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after the reasons for the direction are given."

You could even improve it by omitting the repetition of "reasons for the direction":

"The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after those reasons are given."

But then you notice the opportunity for using a gender-neutral pronoun, to make it even better:

"The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after they are given."

Back to the Criminal Procedure Act 2011, which has numerous instances of "he or she", "him or her" and so on. Not a few of these are due to a provision which is repeated several times, containing the phrase

"issue a warrant to arrest the defendant and to bring him or her before the court".

Far better, but much less obvious, would be

"issue a warrant to arrest, and to bring before the court, the defendant".

I like this suggestion, because it puts the defendant as a remote target of the collected powers.

Currently, the best legal prose is found in the judgments of the leading appellate courts, but even these can have infelicities deserving of reconsideration.

Saturday, July 05, 2014

Rights and the clutter of precedent: prisoner access to judicial determination of recall

A prisoner who has been recalled to prison after being released on conditions during the term of the sentence may wish to have the legality of that recall determined judicially rather than by executive decision.

Generally, parole boards do have to act judicially: see for example R v Parole Board, ex parte Smith and West [2005] UKHL 1, discussed here on 31 January 2005, but an executive decision might only be constrained by the need for it to be reasonable: compare R (Black) v Secretary of State for Justice [2009] UKHL 1, discussed here on 22 January 2009.

In the absence of a specific avenue of recourse to a judicial body, prisoners may look to international law for the right to have their recall to prison determined by a judicially. For example, the International Convention on Civil and Political Rights provides in Article 9.4 that

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

And the European Convention on Human Rights, Article 5.4, says the same thing:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Whether there is recourse to a right in international law will depend on the domestic legislation, which may exclude it, incorporate it, or be unclear.

Statutory schemes for prisoner release vary, but there is a general pattern, always subject to local variation. Broadly, there are two sorts of release during a sentence of imprisonment. First, during an early part of the sentence but after a period has elapsed, there is discretionary release. The prisoner is not entitled to be released at this stage, but if released may be recalled for some reason such as the impracticability of ongoing electronic monitoring. Secondly, after a set proportion of the sentence has passed, the prisoner may become entitled to release, although again may be recalled during the remainder of the sentence, usually only because it has become clear that the release entails an ongoing risk to the safety of a person or of the community.

Can prisoners who have been recalled after discretionary release expect to have access to a judicial determination of the lawfulness of that recall?

The United Kingdom Supreme Court has unanimously held no: Whiston, R (on the application of) [2014] UKSC 39 (2 July 2014). Lady Hale, in her brilliantly clear separate judgment, points out that this case decides that point only, not the question of access to judicial determination where a prisoner who was entitled to be released has been recalled.

But Lord Neuberger, jointly with Lords Kerr, Carnwath and Hughes, applies Strasbourg jurisprudence “as explained and applied in Giles” [43]. This refers to R (Giles) v Parole Board [2004] 1 AC 1, in which Lord Hope said at [51]:

“Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.”

This distinguishes determinate sentences (that is, sentences where the court has fixed the term) from indeterminate sentences (where the court has imposed life imprisonment or preventive detention). Although the concepts of judicial review and judicial determination are not distinguished, Lord Hope concluded that access to a judicial tribunal is only available to prisoners recalled during indeterminate sentences.

Lord Neuberger agreed [38], adding that the prisoner still has domestic remedies [40].

Instead of lumping all determinate sentences together, Lady Hale distinguished between prisoners who have been recalled from discretionary release (no access to judicial determination) from those recalled from release to which they had been entitled (access to judicial determination). The Parole Board, being required to act judicially, is the appropriate tribunal.

The difference is therefore between distinguishing between prisoners who are serving determinate, as opposed to indeterminate sentences, or between prisoners who were given discretionary release and those who were entitled to be released, during their sentences.

Lady Hale recognised that one Strasbourg decision was inconsistent with her analysis [57] (and [52]-[53]), but she suggested that its weakness was that it failed to appreciate the strength of a prisoner’s right to be released after serving a specified proportion of a sentence [53]. Lord Neuberger replied that the ECtHR may wish to reconsider its jurisprudence but currently he considered it had the effect that he had stated [49].

Lady Hale pointed out that the majority judgment went beyond the issue in this appeal, and that to the extent that she disagreed with it, it was obiter dicta [59].

Given that a prisoner on an indeterminate sentence has access to a judicial decision on recall, it certainly seems strange that a prisoner entitled to release does not. No doubt the majority in Whiston, if free to decide the issue unimpeded by the clutter of precedent, would be inclined to recognise that issues of breach of rights should always be open to judicial determination.

That is the point of general interest in this case. I should stress that local statutory schemes for release of prisoners may leave no room for issues of this nature. Whether that brings legislation in conflict with internationally recognised rights, and if it does, whether there is a remedy, is a different matter. On the Strasbourg interpretation, only recall during indeterminate sentences can be judicially determined, but on the alternative interpretation judicial determination is available if the relevant legislation gives a prisoner the right to be released after serving a proportion of the term. Some legal systems may already provide that remedy, for example by requiring all recall decisions to be made judicially by a parole board.

Thursday, July 03, 2014

The faster you go the bigger the mess?

One reflects, as one must, on the appellate delay in Sabapathee v The Director of Public Prosecutions (Mauritius) [2014] UKPC 19 (25 June 2014).

There is nothing exceptional about the offending, and sentencing should have been routine. But the judge’s lenience in imposing a fine led to appellate squabbles over whether imprisonment should have been imposed instead.

These squabbles – or, as we call them in law, proceedings – lasted about 3 years and eight months. During that time the defendant had got on with life [34]:

“There have been changes in the appellant's personal circumstances since his conviction. He is now married, his wife is pregnant and he has employment at a gym. The offence was a serious one and the Board is not persuaded that it would be grossly disproportionate for the appellant to serve a period in custody for it, but it is satisfied that it would be grossly disproportionate, in all the circumstances that he should now be required to serve a sentence as long as three years. The Board concludes that the appropriate course is that his appeal should be allowed, the sentence of three years imposed by the Supreme Court should be quashed and there should be substituted a sentence of 18 months' imprisonment, less the period spent by the appellant on remand in custody.”

The offence – possession of about 70 grams of cannabis for supply – was initially punished by a fine, then, on the prosecutor’s appeal, by imprisonment for 3 years (suspended pending the outcome of this appeal). The Board recognised that a sentence of 3 years’ imprisonment could properly have been imposed at first instance and that a fine was manifestly inadequate [32].

One year and 10 months elapsed between the imposition of the fine and the first appellate court’s judgment, and the Board’s judgment was delivered approximately 1 year and 10 months after that.

Given that the appeals both took about the same time, should the Board’s criticisms of delay be confined to the local proceedings? The Board said [25]:

“The Board is aware that judicial resources in Mauritius are strained, but that is not a satisfactory explanation for the length of time which elapsed in this case. The Court record shows that the hearing of the appeal on 13 February 2012 occupied the Court for 47 minutes. The date of the appeal appears to have been fixed at hearing on 15 February 2011, at which the parties were represented. The Board is not aware of the full circumstances, but on the face of it the Board considers it highly regrettable that an appeal of this kind should be fixed for a hearing date in a year's time. It is also regrettable that it took nearly six months thereafter for the court to deliver a 4 page judgment.”

This invites us to note that the Board took 3 months to deliver a 10 page judgment (pdf version).
And so, one inevitably asks, if 3 judges take 6 months to write 4 pages, how long should it take 5 judges to write 10 pages?

According to my calculator, and assuming, to be generous, judges work in the weekends just like we do: the Supreme Court of Mauritius wrote at the rate of 0.015 pages per judge per day, and the Board wrote at virtually the same rate: 0.022 pages per judge per day.

Thursday, June 26, 2014

Privacy and electronic records

At common law a cell phone, seized when a person is arrested, cannot be searched. I say “at common law” because the rule may be modified, subject where relevant to any constitutional constraints, by legislation, which, for example may provide for authorisation of such a search by warrant.

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,”... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”

Riley v California, USSC No 13-132 (25 June 2014), Roberts CJ delivering the opinion of the Court.

The Supreme Court of Canada has similarly recognised the enhanced privacy interests that can be associated with electronic information, holding that a warrantless obtaining of information about a computer user’s name and address, from an internet service provider, was illegal, where the information was used to link that person to particular internet usage: R v Spencer, 2014 SCC 43 (13 June 2014). But here the illegally obtained evidence was admissible because the public interest in obtaining a conviction outweighed the breach of the defendant’s privacy.

A breach-but-admissible result also occurred in R v Cole, 2012 SCC 53, noted here on 9 November 2012.

Activity can be called a search if it involves a breach of a legitimate privacy interest (both Riley and Spencer illustrate this) or if it involves a trespass (there are many illustrations; see for example United States v Jones mentioned briefly here on 31 March 2012).

In Spencer the Court did not assert that there is a right to privacy (anonymity) in relation to online activity, only that there can be such a right [49]. The Court referred to its previous recognition of significant privacy interests in relation to online activity in R v Morelli, 2010 SCC 8 (CanLII), 2010 SCC 8, [2010] 1 S.C.R. 253, at [3], noted here on 23 March 2010, R v Cole above, and R v Vu, 2013 SCC 60 (CanLII), 2013 SCC 60, [2013] 3 S.C.R. 657, at [40]-[45], noted here on 17 November 2013. One might fairly ask whether it is appropriate to make the existence of a right dependent on circumstances. More logically, a right does, or does not, exist, and if it exists, the next question is how it interacts with other rights.

For an example of legislation that modifies the common law on search of electronically stored information, see my comments on Vu. That legislation, which I blush to admit is New Zealand's, seems to authorise a search of a cell phone in circumstances which include where a person can be searched without warrant, not merely where there are reasonable grounds to believe relevant information will be found, and not on the lesser threshold of reasonable grounds to suspect, but simply on the basis that the information "may" be found.

Friday, June 20, 2014

Who shall yield? Recovering proceeds of crime from joint offenders.

Forfeiture orders, to recover benefits obtained by crime, may be issued against each participant in the offending for the full amount of the group’s benefit, so that the total of the orders may exceed the total of the benefit obtained: see R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008), discussed here on 16 May 2008.

The Supreme Court of the United Kingdom has now held that in such cases each order should be subject to a condition:

“ ... that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit.”

R v Ahmad [2014] UKSC 36 (18 June 2014) at [74] (the Court’s emphasis).
This case follows and clarifies the line of authorities beginning with May, Green and Jennings [39].

In particular, “obtained” in this statutory context of obtaining a benefit from offending has its ordinary, non-technical, meaning. It doesn’t depend on legal concepts involving property transfer. It just means to get something. It doesn’t mean to obtain ownership [42].

Where it is alleged that offenders have obtained something “jointly”, that just means they got it together [44], or they got it between them [45]. In this sense, it can be proper for the court to conclude that where offenders obtained something through acting together, they each obtained the whole of that thing [46], at least in the absence of proof to the contrary [47]-[48].

This conclusion should not be reached automatically, for

“[51] ... Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings.”

But, especially where it is unlikely that all the offenders have been apprehended, it will often be proper to infer that the obtaining was joint [51].

When the obtaining is, in this sense, joint obtaining, each offender is liable for the full amount of the benefit obtained in the joint offending, and the court will not concern itself with squabbles among offenders as to who should pay what (I paraphrase, but see especially [67]).

This liability is subject to the condition quoted above from [74].

Confiscation proceedings (this is me now, not the Court) can raise complex and interesting questions, as is illustrated by R v Waya [2012] UKSC 51 (14 November 2012), discussed here on 2 January 2013. In Ahmad no question was raised about the majority in Waya’s method of determining the value of the benefit, so we can take it that Waya’s authority is undiminished. The market value of what was obtained is determined as at the time of the proceedings for recovery. But this should not be applied too broadly. The statutory context is important, and here the UK legislation was subject to a gloss applied by the European Convention on Human Rights, Protocol 1, Article 1 ("A1P1"), which, as was held in Waya, requires the court to avoid making a disproportionate order. One can distinguish a statutory benefit from a real benefit, and resort to the real benefit where confiscation of the statutory benefit would be disproportionate. For an illustration, see Paulet v United Kingdom [2013] ECHR 13 May 2014, cited in Ahmad at [77]. In jurisdictions not subject to A1P1, statutory limitations on confiscation orders may arise from the need to avoid undue hardship, and one would need to consult the relevant legislation.

People who have to make up problems for students to grapple with may well be thinking along the following lines. If offenders import or manufacture a controlled drug, intending to market it, have they obtained a benefit? Yes, they have got something of value. What value? If the drug was seized by the authorities and thereby forfeited, there was no benefit obtained by the offenders, except in the sense that they had the drug for a period. If they sold the drug, they obtained something of value, and one or more of them may have then bought an investment such as shares or real estate. That value is to be assessed, if Waya is applied, as at the time of the forfeiture proceedings, and it may have diminished since the benefit of the offending was obtained. If another of the offenders used a share of the benefit to make a good investment, there is an inequality, arising probably from mere chance, as between offenders’ loss through enforcement of the forfeiture order. But if there is no evidence of any of that dealing with the immediate proceeds of the drug offending, the court will, applying Ahmad, make an order for equal forfeiture against all offenders, presumably equalling the estimated proceeds of the offending, and ignoring the current value of those proceeds.

Inequities could arise, where orders are made subject to conditions as specified in Ahmad at [74], from the times at which they are enforced. The true benefit may end up being kept by the lucky last, if offenders against whom orders were earlier enforced yielded the full amount. Those earlier enforcements may have been against good investors, whose skill in the markets has protected the share of the offending that can be kept by the others.

And so on. Often the answer, or at least one answer, to these questions will be found in legislation. The legal answer is, as always, able to be evaluated in moral terms. Where there is room to do so, courts should strive to apply legislation in ways that are morally right, and Ahmad illustrates the difficulty of achieving this where constraints on the availability of evidence make fact determination impossible. Some responsibility for the lack of evidence probably rightly rests with the defendant, but where other offenders have not been apprehended and they do not give their account of proceeds, what else can a court do but impose equal liability?