Rights, freedoms, and elderly children

In today’s decision Attorney-General v Smith [2018] NZCA 24 the Court of Appeal observed at [47] that

“... any rights analysis must begin with the presumption that Mr Smith [a sentenced prisoner] has the common law right to wear a wig if he wishes, simply because it is not illegal to do so.”

Sometimes cases are brought on grounds which obscure basic issues. There can be few points more basic in this context than the rights of people to do things that are not unlawful. Instead of relying on that right, it seems that this case was brought alleging a breach of the New Zealand Bill of Rights Act 1990, s 14. Arguments therefore were diverted to the issues whether wig-wearing is an “expression” within the terms of that section.

The High Court had held that it is, but the Court of Appeal overruled that. In that sense, Mr Smith lost the appeal. But it is wrong to say, as our news media are currently saying, that “Murderer loses legal right to wear wig in prison”, and “Wig-wearing murderer Phillip John Smith has no rights to hairpiece, court rules”.

Indeed, as things are between the parties, the dispute is settled and the issue is moot, and the Court of Appeal only issued a judgment because the issue of the engagement of s 14 “raises an important question with potential application in other cases” (at [26]).

You may wonder, as I do, why Mr Smith should want to wear a wig, given that mature men with full heads of hair look like elderly children.

Are principles always helpful?

The New Zealand Law Commission has published its Review of the Search and Surveillance Act 2012 (the SSA): NZLC R 141 (dated June 2017, but published on 30 January 2018).

With the aim of assisting officials who are conducting searches, the Commission recommends the enactment of principles. It acknowledges that the final wording of these principles may need revision. We can reasonably ask whether, in their present form, they will be of real use to those officials. Are these principles the product of armchair theorising, or will they usefully guide officers in law enforcement? Do all people have the same understanding of principles?

Here are the Commission’s proposed principles, with questions that I suggest may properly be asked.

Principle 1: conduct that may constitute an intrusion into the reasonable expectations of privacy of any individual should be carried out pursuant to a warrant, order, statutory power or policy statement;

From a constable’s point of view, what is a “reasonable” expectation of privacy, given that the constable is of the view that there are reasonable grounds to believe that evidence of an offence will be discovered? What are the discretionary considerations implied by “should”? What “statutory power” is relevant other than those in the SSA? Does this principle say any more than that the constable “should” obey the law?

Why not introduce a definition of “search”, and a provision stating that searches carried out otherwise than pursuant to the provisions of the SSA are unlawful?

Principle 2: a warrant or order should be obtained in preference to exercising a warrantless power;

What is “in preference”? The constable’s personal preference? Again with the “should”. Why is this just a principle and not a requirement with explicit exceptional conditions permitting warrantless searches? Are the grounds for a warrant more stringent than the grounds for a warrantless search?

Principle 3: State intrusion into an individual’s privacy should be proportionate to the public interest in the investigation and prosecution of the offence or the maintenance of the law;

Seriously, is a constable really expected to carry out this proportionality evaluation? Is a constable ever going to decide that no, in this case enforcement of the law doesn’t matter? Is this more helpful than requiring searches to be carried out reasonably – which itself is hardly more useful to a constable than saying “don’t be silly”.

Principle 4: powers under the Act should be exercised in a manner that minimises the level of intrusion on the privacy of any individuals likely to be affected;

Yes, well intended, but how is a constable to decide, in the quest for evidence that is reasonably believed to exist, when an intrusion on privacy is unnecessary? Again, is this no more helpful that telling the officer not to overdo it?

Principle 5: powers under the Act should be exercised having regard to te ao Māori (the Māori dimension) and any other relevant cultural, spiritual or religious considerations;

But all people are equal. What does “have regard to” mean? Do cultural, spiritual or religious considerations have priority? Are all cultural, spiritual or religious considerations of equal importance? The Sikhs’ kirpans are weapons, aren’t they? Are there to be dispensations?

Principle 6: powers under the Act should be exercised in a manner that minimises the impact on children and vulnerable members of the community;

Yes. Don’t be rude, don’t be rough, and don’t gratuitously cause stress. Or, be as nice as possible.

Principle 7: powers under the Act should be exercised in a manner that protects any privilege held by, or available to, any individual.

How is a constable to know when a person has a privilege, for example, against self-incrimination in respect of an offence which is not going to be charged? What does “protects” mean?

I hope not to encourage cynicism, but the words of Posner in Divergent Paths (see my note) at p 128 come to mind:

"The anxiety is that law really is not a rigorous field (which is true) but a field dominated by hunch and priors and rough balancing of competing considerations given only subjective weights, and by often inaccurate facts and lying or muddled witnesses and sly lawyers and confused or disingenuous judges."

Divergent applications of principles can occur not only because people have different objectives, but also when they include interpretive concepts (in the sense used by Dworkin; see my review of Justice for Hedgehogs). We might all agree on what a “reasonable expectation of privacy” is, but we may differ on what is an example of it. Similarly with concepts of proportionality, minimal intrusion, relevant cultural, spiritual or religious considerations, vulnerable members of the community, and protection of privilege. Rather than being unifying, principles may foster divergent answers to the question of what conduct should be permitted. Dworkin's theory suggests that in order to agree on instances of interpretive concepts people need to agree on ethics (how one should live) and morality (how one should treat others), and this requires recognition of the equal importance of all lives, and the need for people to take responsibility for their own lives. For present purposes the point is that a principle can require quite a lot of unpacking before its message in a particular case is revealed.

It is fair to ask whether application of any of the suggested principles could have influenced police conduct in, and the outcomes of, admissibility cases. Of those decided by the Court of Appeal under s 30 of the Evidence Act 2006 in 2017 (see my summary , at para [110], of these), there were only two where evidence obtained by improper search was inadmissible. In one a police dog bit the defendant on the arm during his apprehension and arrest, medical attention was required, and evidence found on the defendant but which was not central to the prosecution was inadmissible. In the other case, also involving the inadmissibility of evidence that was not central to the prosecution, a phone was searched during a detention that was unlawful and there was opportunity for the police to obtain a warrant. It is arguable that in this case a statutory principle could have affected police conduct, but so could proper administrative instructions given within the police organisation. There were two other cases which could be considered as searches because information was obtained from the defendant’s body: in one DNA evidence was excluded where there had been a breach of the statutory code of procedure in relation to DNA samples, and in the other the circumstances strongly suggested that the defendant had been badly beaten while being unlawfully detained in police custody and before medical evidence was obtained of his being under the influence of alcohol to the extent of being incapable of driving. It is doubtful that in either of those cases principles would have changed police behaviour.

Although hardly a statistically significant sample, at least it shows that in one year there was only one case of improper search where statutory principles might have affected police conduct to the extent that evidence would not have been ruled inadmissible. That was a warrant-preference case. Again, instructions given within the police service should be just as effective as a statutory principle.

Furthermore, a constable who gives evidence reciting statutory principles is likely to be believed in claiming that in the particular circumstances it was necessary, and not inconsistent with those principles, to act in the way that occurred. This could reduce the accuracy of fact-finding.

Posner gives us some holiday reading

It is impossible to have more fun than to spend a little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):

“Law schools will do almost anything to boost their ranking in U.S. News & World Report, which treats faculty-student ratio and number of library books as plus factors in the ranking, though they have little (library books virtually nothing) to do with the quality of legal education.”

And on the topic of judicial embrace of multifactor tests as aids to judicial decision making, which Judge Posner calls a common pretense of analytical rigour in adjudication, (p 117):

“Not only is the list of factors usually open-ended and therefore incomplete, but the factors are rarely given weights, and so unless all line up on one side of the dispute no decision can be derived from them; they are window dressing.”

And as a federal appellate judge, Posner has this to say about judicial disagreements (p 235):

“The problem of feuding federal judges would be solved in a trice if the Chief Justice summoned them to his office in Washington and told them to stop behaving like children.”

Well, I’m not trying to summarise what Posner says in this endlessly interesting book. We who are not Americans can easily see its relevance to our own legal environment.

Posner, who, to put it mildly, is one of the more intelligent judges, embraces Bayesian reasoning with conditional probabilities. A small glitch – surprising and ironic - occurs on pp 338-339 (if my Kindle's pagination is correct) in his illustration of why lawyers need to be able to understand DNA evidence. But never mind.

I have, over the years of writing this blog, referred to Posner on several occasions. His fearless brilliance is an inspiration for jurists, and his enthusiasm brings both joy and outrage. And laughter.