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.”
Tuesday, January 20, 2015
Book Review: The Singular Universe and the Reality of Time, by Unger and Smolin
The Singular Universe and the Reality
of Time by Roberto
Mangabeira Unger and Lee Smolin, CUP, 2015 brings to our attention a likely
explanation for the lack of progress in cosmology since the 1970s. The book
will be of interest to some lawyers (Unger is, among other things, a legal
theorist) for the light it may shed by analogy on some aspects of legal theory.
This is
really two books under one cover, both advancing the same general argument,
with Smolin addressing some scientific topics at a level of detail, but not at
undue length, that is beyond what general readers would understand. The first
part of the book is by Roberto Mangabeira Unger, and the second, from page 349
(if my Kindle app is accurate) by Smolin.
Both authors wrote the introductory
remarks, from p x to p xx.
“Cosmology is the study of the universe as a whole, beyond
which, for science, there lies nothing.”
(p xx).
There are
“three big questions about cosmology”, stated by Smolin (401) as:
“What happened at very early times, closer to the initial
singularity? What will happen to our universe in the far future? What is there,
very far away from us, outside our cosmological horizon?”
Cosmology can
only answer these by way of being a science. A science is (501)
“... only about what can be conclusively established on the
basis of rational argument from public evidence.” [footnoting Smolin, The
Trouble With Physics, 2006, a book that I can recommend]
Incidentally,
and I digress for a moment: in The
Trouble With Physics Smolin gives us (293) Feyerabend’s amusing observation
that he could win any argument in philosophy simply by using skills he had
acquired as an actor. “This made him wonder whether academic success had any
rational basis.” Drama-queen teachers take note!
No progress
has been made on important cosmological questions, and Unger and Smolin argue
that this is because scientists have used incorrect assumptions. Questions
include: why, when important equations have many solutions, is only one accepted
as correct? Why are there three spatial dimensions? Why do the so-called
universal constants have the values they do? Why is there life? How did the
universe come to what appears to be thermal equilibrium at a single
temperature? Why do we assume that the laws of physics apply throughout the
universe (including the part of the universe we cannot yet detect), and in an
unchanging way?
Most of us
will remember wondering why Einstein started his special theory of relativity
by assuming that the speed of light in a vacuum is constant and cannot be
exceeded. True, experiments suggested that that was so, but should those
results be applied everywhere and always? His other basic assumption was that
the laws of physics apply uniformly for all frames of reference. Do they, and
why? And his removing of time from its
role as a universal and uniform measurement may well produce results that
appear to be correct in the part of the universe we can currently detect (even
if only by measurement to a level of precision only expensively achieved), but
everywhere and always?
Unger and
Smolin reinstate time as the absolute backdrop to physical events (52), not an
accessory to space (53), they assert it is real (354) and it enables
recognition of what they assert will be found to be the evolution of physical
laws (357). It also gives meaning to causation: if time is not real, causality
(the influence that a state of affairs exercises over what follows it) cannot
be real (35). However, the uneasy reader might say, it is not explained how
this absolute time is to be measured, and how the measuring standard might
change as the physical laws evolve. Still, the point seems to be that time does
not vary within a frame of reference, or between frames of reference, or
historically compared to any measurement that is known. Where this leaves
Einstein is not made clear (at least to me, other people are probably not
troubled at all), unless the modification is confined to the unknown part of
the universe.
Three central
ideas – or perhaps we could say assertions or axioms - are developed in the
book (I summarise from pp 5-16): the solitary existence of the universe (there
are not, and have never been and will never be, mulitple universes); time is
inclusively real (nothing is outside time, everything changes sooner or later);
and mathematics is not a substitute for reality, it should be seen as
representing a world eviscerated of time and phenomenal particularity
(mathematical relations are timeless and of a general character, and indeed are
useful to a point, but they do not model a universe in which time is real).
At the very
least this book illustrates what can be done when a discipline reaches a
dead-end. Fundamental assumptions are re-examined and changed.
One of the
joys of looking at the problems that have arisen in another discipline is that
ideas applicable to law may be brought to mind. Even now, while I half-listen
to New Zealand playing Sri Lanka in a one-dayer at Nelson.
Is there an unknown law that has yet
to be perceived?
Obviously,
yes. All the things that have yet to be invented are potential subjects for new
law, and new kinds of laws. It is impossible to imagine what they may be, but
we can say that there will be laws that will apply to them. Whether those laws
will be recognisable by reference to our current criteria, or whether new
criteria for recognising law will evolve, is not known. But we can say that
there is no reason to keep our definition of law constant so that it is
temporally limited to known conditions.
Does the law apply everywhere?
Courts have
had to decide whether constitutional protections apply extra-territorially (for
example see the case discussed here
on 13 June 2008). There is increasingly a tendency for the law of one territory
to be given extra-territorial application, at least as far as the courts of the
domestic territory are concerned. And within a territory it seems there is no
room for exceptions to the obligation to obey the law; exceptions are within
the law, not extraneous to it. The law applies under the surface of the earth
and above it, extending into space. Rights may be given over territory on the
moon, and beyond. The extent of the application of the law may only be limited
by the human imagination. This means it may apply in environments that are
little known, raising the question of the extent to which the conditions for
application of law are part of the definition of law.
What is progress in law?
Social norms
do not have to be laws (see Gardner, Law
as a Leap of Faith, reviewed here
on 6 July 2013). If procedures are applied to norms, sufficient to make them
recognisable as laws, then that is what they are. But some laws are rights,
accepted as somehow being of a higher kind than other laws. If that has
happened to a norm, the progress is from a non-legally enforceable social
convention, to law, to higher law. Increasing recognition of rights suggests
increasing opportunity for progress. Law is not static in this regard. Whether
rights will continue to increase, or will reduce, is not known, but there is no
reason to think that present trends will always apply. To what extent can we
expect to be able to prevent, or encourage, change?
Is it useful to ask why a law exists?
People don’t
need laws: it is possible to imagine a community that functions without a legal
system (Gardner, above, pp 296-301, suggesting that the functions of law can be
served by conventions like morality, etiquette, games, and traditions, and law
may have different importance at different times in history, and may one day be
lost and forgotten).
So what is
law for? Convenience, obviously, in settling disputes, minimising conflict, and
preventing or making-good harm. Those functions can be achieved by means other
than law, so they do not assist in defining what law is. Law is not defined by
its use, but by the process by which it comes into existence.
What is the relationship between a law
and the environment in which it applies?
The
application of a law is different from its definition as law. A law may be a
law although the circumstances in which it could apply have never arisen. For
example, laws made to apply in the event of natural disasters or epidemics are
still laws pending those catastrophes. The law is not imaginary, although its
application is. One of the main aims of criminal law is deterrence, and it is
made in the hope – optimistic though it may be – that it will never need to be
applied.
The
environment in which a law applies may change dramatically, while the law stays
the same. But this stasis is not essential: the law may be developed, by
conventional techniques of legal reasoning, to meet new demands. To what extent
is it then the same law as before? Laws, once created, may evolve with the
environments in which they are applied.
What is the relationship between law
and reality?
Just as in
physics mathematics should not be confused with the reality which it is used to
explore, so too in law the techniques of legal reasoning should not be confused
with the reality to which law has to be applied. Conventional legal reasoning –
the techniques of statutory interpretation, the methods of arguing about case
law – will not necessarily produce the correct application of law to a
particular problem. The life of the law, as has been said, is not logic but
experience. Logic, in law, is subject to correction on policy grounds.
To what extent should legal concepts
be defined?
The fight in
physics is against uncertainty, whereas in law uncertainty can be an advantage.
The circumstances in which a law may have to be applied cannot necessarily be
wholly anticipated when the law is made, and some judicial creativity in its
application should be allowed for, if the law is to remain useful. It is not
unusual to find a statute on a subject which itself is not defined, as for
example where the Search
and Surveillance Act 2012 [NZ] does not define search.
It may not be
useful to define concepts when the law’s purpose may have to be applied in
circumstances which, at present, are not clearly perceived. We may know what we
want, without necessarily knowing when we may want it. Should this desire be
expressed as a law?
What are the premises of the rule of
law, and should they be the same everywhere?
An idea that
has emerged relatively recently is that a fundamental requirement of law is
that it should be identifiable, ascertainable, equal in its application, accessible,
and, to an extent that is a matter of some debate, consistent with the
requirements of a fair trial and other fundamental rights. The debate about
this latter point is not about whether trials should be fair, etc, but about
whether this requirement of fairness and conformity with fundamental rights is
part of the rule of law.
Monday, November 17, 2014
Book review: The Sense of Style - The Thinking Person's Guide to Writing in the 21st Century, by Steven Pinker
I enjoyed
most of Steven Pinker’s, The Sense of
Style – The Thinking Person’s Guide to Writing in the 21st Century.
My computer
puts a green wavy line under the second definite article in that title,
apparently because it doesn’t like the capitalisation. Just illustrating that
we can all find something to argue about when deciding how groups of words
should be written. I could object to the inelegance of the occurrence of two definite articles in so few words, and I could wonder at the ambiguity: who is the thinking person, the author or any reader who finds the book a useful guide?
And arguments
can get heated. To deter criticism – rather as Kremlin parades of nuclear
missiles averted Moscow’s annihilation – Pinker ends with five things an antagonist
should do before engaging. The fifth includes this:
“Psychologists have shown that in any dispute both sides are
convinced that they themselves are reasonable and upright and that their
opposite numbers are mulish and dishonest. [Footnoting Haidt, J. 2012. The righteous mind: Why good people are
divided by politics and religion. New York: Pantheon, and Pinker, S. 2011. The better angels of our nature: Why
violence has declined. New York: Viking, chapter 8.]”
Squabbles
about being right or wrong are beside the point. The point is style, not
grammar. And Pinker concludes by saying that the reasons to strive for good
style are:
“to enhance the spread of ideas, to exemplify attention to
detail, and to add to the beauty of the world.”
And how to
achieve good style? Pinker describes his own writing method, presumably used
for this book: rework every sentence, revise a chapter two or three times
before showing it to anyone, revise again at least twice in response to
feedback, then give the whole book “at least two
complete passes of polishing” before it goes to the copy editor for a
couple more rounds of tweaking.
Good style
doesn’t come easily. And what is the thing that all this revision is trying to
get into the writing? Pinker gives plenty of examples of how writing can be
improved. In the end, however, all that can really be said by way of defining
good style, it seems to me, is that it feels right, and in the case of a revision
it feels better than what went before. And this improvement would be accepted
by most adults who have English as their first language and who appreciate good
writing (the thinking people of his title). Read aloud, to get syntax right so
that readers don’t stumble: “laboratory studies
have shown that even skilled readers have a little voice running through their
heads the whole time.” If it doesn’t sound right it’s not good style.
In one – what
is for me significant – respect I find Pinker’s style repellent. I suspect his
ears (as he says in relation to a different topic) have “been contaminated by a habit ... to avoid spitballs from the Gotcha!
Gang.” It seems to me that his ears have been contaminated in the
academic environment by the requirement, appropriate though it may be during a
developmental stage of young people’s education, to avoid the sexism of using
he to include the female gender, by using he alternately with she, or by using
the phrase he or she, or by using their to refer to a singular of either gender.
I agree that
sexist language should be avoided, but the right way to do it is to revise
until the need for reference to gender disappears. I agree with Antonin Scalia
on this (see my review
of Scalia and Garner, Making Your Case –
The Art of Persuading Judges).
Pinker begins
(according to my Kindle app this is p (iv)) by telling us that he will “avoid the awkwardness of strings of he or she ... [by]
consistently referring to a generic writer of one sex and a generic writer of
another. The male gender ... will represent the writer in this chapter; the
roles will alternate in subsequent ones.” But later (p 260) he refers
again to science: “Experiments that measure readers’
comprehension times to the thousandth of a second have shown that the singular
they causes little or no delay, but generic he slows them down a lot.”
So generic he
is bad. Presumably generic she is too. So Pinker’s plan was to alternate bad
style chapters with other bad style chapters.
Although he
acknowledges that he or she is clumsy
(p 256), his plan leads Pinker to do worse by alternating male and female
pronouns, even in the one sentence (p 29): “The
writer can see something that the reader has not yet noticed, and he orients
the reader’s gaze so that she can see it for herself.”
This would
have been better: "The writer can see something that the reader has not yet
noticed, bringing it to the reader’s attention." And even better: "The writer can bring something new to the reader's attention."
And sillier
too is the image one gets of Pinker marking a student’s paper, when he says
that (p 28) a “college student who writes a term
paper is pretending that he knows more about his subject than the reader and
that his goal is to supply the reader with information she needs ...”.
Better would
have been: "a college student who writes a term paper is pretending to know more
about its subject than the reader and that the goal is to supply the reader
with needed information." Even better: "a college student who writes a term paper is pretending to tell the reader something new."
My
suggestions are not perfect, and I’m not calling Pinker mulish, but they point
to directions for further revisions.
Monday, November 03, 2014
Book review: Lord Mansfield - Justice in the Age of Reason by Norman S Poser
If you are
not yet in love with eighteenth century London, Lord Mansfield – Justice in the Age of Reason by Norman S Poser
will get you started. If, as mine did, your infatuation began with Boswell’s The Life of Samuel Johnson, LL.D., you
will be well prepared. But Poser’s account is so straightforward and clearly
written that there is really no threshold of preparation to be overcome.
Both Boswell
and Mansfield (born William Murray) were social climbers. Both were lawyers.
Both were Scottish. They knew each other. In April of 1772 they appeared on
opposite sides in an appeal in the House of Lords, and Murray won. Murray was
educated in England, after at age 13, and unaccompanied, he rode a horse to London from Edinburgh,
never seeing his parents again, to attend Westminster School. Johnson observed
to Boswell: “Much may be made of a Scotchman, if he be caught young.” Boswell was educated in Scotland and Holland.
As a lawyer
Murray had an appreciation of Roman law and as a judge he was inclined to be
guided by principles rather than rules, introducing what some thought was an
alarming unpredictability into the common law. Poser summarises this (p 402):
“His
study of the great philosophers of law instilled in him a belief that all law
was based on morality, reason, and human nature, which were the same
everywhere, even though customs, mores, and traditions differ from country to
country.”
Poser’s
review of the courts in Westminster Hall is extraordinarily clear, and it is
only regrettable that those who taught me legal history, and who wrote the
textbooks, were not so interesting. The times were ones of, by our standards,
corruption. Judicious payments could lead to judicial office. Judges kept for
themselves a proportion of the court fees in cases they heard. Lord Mansfield –
he insisted on being ennobled as a condition for his acceptance of the position
of Chief Justice of the court of King’s Bench – on occasion was in the House of
Lords when appeals from his own decisions were heard. His fear of exposure for
a youthful indiscretion, which could have led to accusations of treason, led
him to be unduly concerned with placating those in political power. But this
was widely known anyway, and he was occasionally subjected to harsh criticism
in print.
Murray was so able a lawyer, particularly because of his learning and his eloquence,
that he quickly became a leader of the profession. He amassed a fortune, even
before going to the bench – indeed it was probably his potential financial
sacrifice that gave him the leverage to demand the peerage. He invested in
mortgages on properties owned by aristocrats. He was incurably ambitious. As Horace
Walpole wrote, “he knew it was safer to expound laws than to be exposed to them.”
He
was an autocratic judge, although unafraid of admitting that he had been wrong. Poser
gives us this:
“when
asked why he had changed his mind on a particular point of law, he answered
that it only showed that he was wiser today than he had been the day before.”
I can’t help
but wonder whether Bramwell B was thinking of this when he said, in Andrews v Styrap (1872) 26 LT 704, at p
706: “the matter does not appear to me now as it appears to have appeared to me
then”.
Mansfield
worked extremely hard as a judge. He sat long hours and kept cases going even
after he had gone home: juries would sometimes have to visit him in Bloomsbury
Square to return their verdicts. His instructions to juries were alien to our
standards, and he had a rather flexible attitude to penal laws he didn’t like.
On one occasion he told a jury that (pp 352-353)
“...
These penal laws were not meant to be enforced except at proper seasons, when
there is a necessity for it; or, more properly speaking, they were not meant to
be enforced at all, but were merely made in
terrorem ...
“ Take notice, if you bring him in guilty the
punishment is very severe; a dreadful punishment indeed! Nothing less than
perpetual imprisonment!”
Americans
make a hero of Mansfield, and of his contemporary Blackstone, because they
inherited the common law as it then was. More realistically, he had
characteristics that are all too familiar: he was erudite, opinionated, a
bully, a climber, avaricious and ambitious, acquisitive and greedy. He ended
his years at his (then) country house, Kenwood in Hampstead, obese and
arthritic, having clung to office until his inability to write forced him into
retirement. In some ways, too, he was very kind, but he had a lot to be kind
with.
Although he had, and apparently enjoyed, a long marriage, there were no children. As a ladies' man he seems to have fitted Clive James's description of Isaiah Berlin:
"Sexually inoperative but incorrigibly flirtatious, he loved the high-born ladies, who loved him right back, although his paucity of physical response - a desert under the ocean of talk - led several of them to despair ..."
Boswell, in
his journal entry for 11 April 1773, describes a conversation with Mansfield
(who would live another 20 years, dying at age 88):
"Sexually inoperative but incorrigibly flirtatious, he loved the high-born ladies, who loved him right back, although his paucity of physical response - a desert under the ocean of talk - led several of them to despair ..."
“He
is all artificial. He affected to know little of Scotch appeals when over. I
catched him ... [showing that] he well remembered what he affected not to
remember. It is unpleasant to see so high an administrator of justice such a
man.”
Friday, October 03, 2014
Book Review: Peter Gill, "Misleading DNA Evidence: Reasons for Miscarriages of Justice"
Every
criminal lawyer needs to read Peter Gill’s “Misleading DNA Evidence: Reasons
for Miscarriages of Justice” (Academic Press, 2014).
Judges should
read it too. It is admirably clear and no expertise is required of the reader.
If you have some experience with DNA evidence and Bayesian reasoning you will
still find the book useful for its descriptions of how things can go wrong.
Peter Gill is
one of the world’s leading experts on forensic DNA. I say ‘one of’ just to be
polite to any other contender, for Dr Gill is really the leader.
Things can go
wrong (as I so eloquently put it above) because DNA detection is now very
sensitive and DNA is everywhere. A typical crime scene will have detectable
amounts of DNA from many sources. Partial DNA profiles can be detected too, and
this complicates the evaluation of mixed samples. Investigators can contaminate
a crime scene, transferring DNA from one thing to another, with even latex gloves
being vehicles for transfer. Detection of DNA does not mean that it is
necessarily present because it was in a body fluid present at a crime scene.
Samples collected for analysis must be sealed, and gloves changed, so that no
transfer should occur between them, and in the laboratory the risk of transfer
between suspect and scene samples must be minimised. There should be studies of
the risks of contamination within a laboratory, and these should be done
without the knowledge of those who work in that laboratory.
Courts tend
to leap to conclusions that are not scientifically sound. Inferences that could
be tested experimentally are often drawn without that evidence. A common
example may be the assumption that a defendant’s DNA on a murder weapon found
at a crime scene was only on the weapon and was not also on a number of other items which would innocently
explain why it was also on the weapon; what the media refers to as the Amanda
Knox case is an illustration that Dr Gill uses to make this point: the
defendant’s DNA on a knife, allegedly the murder weapon, in a kitchen drawer,
was given significance it may not have deserved in the absence of evidence of
whether her DNA was also on other items in the drawer (which it surely would
have been as she used the kitchen).
Sunday, August 24, 2014
Wrapping up
And that was
ten years of commentary. Just a consequence of having the radio on while
working at my desk on 25 August 2004, and hearing a computer person being
interviewed about how to start a blog.
600
commentaries. Ovid’s self-rebuke comes to mind:
Cum
relego, scripsisse pudet, quia plurima cerno, me quoque qui feci judice, digna
lini.
Saturday, August 16, 2014
A defendant's liability for Parliament's mistake
A couple of
statutory interpretation questions were answered in Beezadhur v The Independent Commission against Corruption & Anor
(Mauritius) [2014]
UKPC 27 (7 August 2014), one unanimously, the other not.
The relevant
provisions were s 5 of the Financial and Anti-Money Laundering Act 2002
[Mauritius], which prohibited transactions in cash above a fixed amount but
subject to exemptions, and s 2 which defined exempt transactions in terms
which, relevantly here, included the phrase “lawful business activities”. This
legislation has, since the result of this case in the Mauritius Supreme Court,
been amended by omitting the reference to “business” [4].
The Board
agreed that the defendant had the burden of proof at trial on the issue of
whether a financial transaction came within a statutory exception to liability,
applying the long-recognised [26] policy that this should be no particular
hardship because the information would be readily available to the defendant
[32], applying R v Johnstone [2003] 1 WLR 1736
para 50 per Lord Nicholls.
The other
issue, the meaning of “business” in the relevant statutory exemption, in
particular the phrase “the transaction does not exceed an amount that is
commensurate with the lawful business activities of the customer”, drew a
dissent from Lord Kerr. He favoured a liberal construction, to give a wider
exemption, consistently with the shift of the burden of proof to the defendant
[39], [40]. The majority held that the policy of the legislation required
exemptions from liability to be construed narrowly [22], [23].
This raises,
we might think, a more general question: should legislative action, taken
before a case has completed its appeal process, to remedy what has been
revealed in the lower court to be an unintended consequence of the original
enactment, be taken into account in interpreting the original provision for the
purposes of the final appeal?
It was
accepted [37] that the defendant’s (appellant’s) four deposits, which were retirement
savings, were from legitimate sources and his one withdrawal was also for
legitimate purposes, and the Board noted that there was no reason to believe
that he thought he had broken the law. The legislation was new and it was not
clear to what extent it had received publicity. The Bank, it seemed, should
have alerted him to the requirements of the Act, and for unknown reasons the
Bank had not also been prosecuted. Although there was no appeal against
sentence (which had been fines on each of the five counts), the Board indicated
that a non-penal disposal could properly have occurred.
Thursday, August 14, 2014
More on expert evidence
Two decisions
of the High Court of Australia yesterday don’t develop the law but they do
illustrate how careful everyone should be about expert evidence.
Is the evidence based on specialised
knowledge?
In Honeysett v The Queen [2014] HCA 29
(13 August 2014) an expert was called to compare images of the offender obtained
from CCTV footage with photographs of the defendant (appellant) taken at a
police station. The expert noted some points of similarity. Although in the High
Court the respondent suggested that this evidence was adduced only to show that
the defendant “could not be excluded” as the offender, the reality was that at
trial it had been advanced as supporting an inference of identity. The issue
was whether the witness was giving expert testimony.
It seems
obvious, now that we know the result, that this sort of comparison could be
made by members of the jury for themselves; it did not require any expertise. The
limited nature of the evidence in this case was such that it did not involve
use of the witness’s expertise in anatomy. Also, the respondent resiled from
what in the lower courts had been advanced as engaging expertise: the witness’s
experience in viewing CCTV images and making comparisons with suspects; only
expertise in anatomy was now relied on [39].
The
non-engagment with the witness’s expertise was apparent from a passage in the
court below (Macfarlan JA,
with whom the other members of the NSW CCA agreed, in upholding the conviction),
and quoted by the High Court at [37]:
“In
addition to his formal qualifications in anatomy, Professor Henneberg is a
person of extensive practical experience in examining CCTV footage, with all
its deficiencies, and attempting to identify characteristics of persons
depicted in it. The view he expressed on this topic is necessarily subjective and not amenable to elaboration beyond the
reasons he gave, or to measurement and calculation.”
(emphasis
added by me). This, correctly understood, supported the conclusion that the
evidence was not based on specialised knowledge [43]:
“Professor
Henneberg's opinion was not based on his undoubted knowledge of anatomy.
Professor Henneberg's knowledge as an anatomist, that the human population
includes individuals who have oval shaped heads and individuals who have round
shaped heads (when viewed from above), did not form the basis of his conclusion
that Offender One and the appellant each have oval shaped heads. That
conclusion was based on Professor Henneberg's subjective impression of what he
saw when he looked at the images. This observation applies to the evidence of
each of the characteristics of which Professor Henneberg gave evidence.”
The evidence
was not admissible. The Court did not have to decide whether, as submitted by
the appellant, to be based on specialised knowledge an opinion must be able to
be independently validated [42].
Mere use of technical
language does not mean that an opinion is based on specialised knowledge [45]:
“Professor
Henneberg's evidence gave the unwarranted appearance of science to the
prosecution case that the appellant and Offender One share a number of physical
characteristics. [footnote:
HG v The Queen [1999] HCA 2; (1999)
197 CLR 414 at 429 [44] per Gleeson CJ; Morgan
v The Queen [2011] NSWCCA 257; (2011) 215 A Crim R 33 at 61 [145] per
Hidden J.] Among other things, the use of technical
terms to describe those characteristics – Offender One and the appellant are
both ectomorphic – was apt to suggest the existence of more telling similarity
than to observe that each appeared to be skinny.”
What is the witness actually saying?
The other
decision, Fitzgerald v The Queen [2014] HCA 28
(13 August 2014) concerns a prosecution case that, it now seems, could hardly have
been weaker: a trace of DNA from the defendant (appellant) was found on a
didgeridoo located at the scene of a violent attack. The prosecutor, held the
High Court, could not exclude innocent explanations for the DNA’s presence and
the conviction was quashed and a verdict of acquittal entered.
The error in
the courts below was essentially that the expert’s evidence had been misunderstood.
In evaluating whether the prosecutor had proved guilt beyond reasonable doubt
the High Court referred to the following points [36]:
“On
Dr Henry's evidence ... the prosecution's main contention, that the appellant's
DNA in Sample 3B derived from the appellant's blood, was not made out beyond
reasonable doubt. Secondly, Dr Henry's evidence was not that secondary transfer
of DNA was "rare"; rather, she said that a primary transfer is a much
more likely source of contact or trace DNA than a secondary transfer, but that
nevertheless a secondary transfer of contact or trace DNA is possible. There
was no conflict in the evidence that there were at least two distinct occasions
... on which a secondary transfer of the appellant's DNA to the didgeridoo may
have occurred. Thirdly, the recovery of the appellant's DNA from the didgeridoo
did not raise any inference about the time when or circumstances in which the
DNA was deposited there. For those reasons, it could not be accepted that the
evidence relied on by the prosecution was sufficient to establish beyond
reasonable doubt that the appellant was present at, and participated in, the
attack. The jury, acting reasonably, should have entertained a reasonable doubt
as to the appellant's guilt. [footnote:
M
v The Queen (1994)
181 CLR 487 at 493-494.] Alternative hypotheses
consistent with the appellant's innocence, in particular the hypothesis that
Sumner [co-defendant] transferred the
appellant's DNA to the didgeridoo on Sumner's first visit to the house on the
day in question, were not unreasonable and the prosecution had not successfully
excluded them. As the evidence was not capable of supporting the appellant's
conviction for either offence, no question of an order for a new trial arose.”
Other cases on expert evidence
Wednesday, August 13, 2014
Photos from abroad
In taking
photographs of a girl performing oral sex on another man, the defendant did an
act “with or on” the girl so as to commit an offence as a principal offender
under s 132(3)
of the Crimes Act 1961 [NZ] (following Y
(SC40/2013) v R [2014] NZSC 34 (3 April 2014), noted briefly here
on 4 April 2014). He was therefore liable in New Zealand, even though this all
occurred overseas, because of the extension of jurisdiction by s 144A
of that Act.
That is how
the Court reasoned in LM v R [2014]
NZSC 110 (13 August 2014).
In addition
to accepting that liability could arise in that way, two of the five judges
found another path. They considered that the defendant was liable as a
secondary party under s 66(1)(b)-(d)
of the Act, regardless of where the principal offender committed the offence,
and that therefore, since he committed the acts of secondary participation
overseas, Mr LM came within the s 144A extended jurisdiction. On this approach (as
I understand it) one pretends, when asking whether the defendant was aiding or
abetting, inciting counselling or procuring the commission of an offence, that
the offence was committed in New Zealand by the principal, just for the sake of
establishing that what was done was an offence under New Zealand law.
William Young
J for the majority on this aspect of the case (with Elias CJ and McGrath J) was
“unable” to construe ss 144A and s 66(1) as imposing liability on someone who
is a secondary party to a substantive “offence” which occurred overseas but
which, because the principal party was a foreigner, was not an offence
recognised in terms of s 144A [24]. In this case the other man’s acts done
overseas were not an offence under New Zealand law because he was not a New
Zealand citizen and was not ordinarily resident in New Zealand.
Putting aside
the “with or on” aspect of the actus reus, which enabled the court to find that
Mr LM could be liable as a principal party, more generally there are three
permutations of circumstances illustrating potential liability. If both men had
been New Zealanders, both would have been liable in New Zealand, one as a
principal and one as a secondary party [17]. If the principal party had been a
New Zealander, but not the other, the principal would be prosecutable in New
Zealand, but as the legislation does not specifically impose liability on
secondary parties who are New Zealanders, a foreign secondary party’s liability
would be less certain, and the better view [20] is that only New Zealanders
could be liable as secondary parties under s 144A (the minority seem to agree:
[40, footnote 26]). And if the principal was a foreigner and the so-called secondary
party a New Zealander, the New Zealander would not be liable as there was no
offence, over which there was jurisdiction in New Zealand law, to which he
could have been a secondary party [23]-[24] (disagreeing with the minority).
The majority
suggest that s 144A should be revised to specifically refer to secondary
liability, as in the corresponding provisions in Australia and the United
Kingdom, to meet the concerns raised by this analysis of the permutations [25].
There seems, as the minority point out [40], no logical reason for the policy
to be to exclude the secondary liability of a New Zealander merely because the principal
party happens to be a foreigner.
Monday, August 04, 2014
The embarrassing c.v.
This month
marks the 10th anniversary of the start of this site. I try to be
modest but the facts make that unconvincing. My normally fetching diffident
modesty could easily be misinterpreted as obnoxious condescending pomposity.
Not that many of my colleagues will notice, as they seem to regard the internet
as almost exclusively an outlet for their obsessive prostate therapy.
And here, for
the less onanistic, we have an exciting new decision from the Supreme Court of
Canada: R v Hart, 2014
SCC 52 (31 July 2014).
At least it
is exciting for lawyers who encounter occasions of police operations that in
Canada are called “Mr Big” operations. Broadly, and the details are in the
decision, this involves undercover police officers masquerading as members of a
gang that the defendant wants to join. They require the defendant to detail the
offences that form a sort of curriculum
vitae in the application for membership, and those details are later offered
to the court as evidence on relevant charges. When are such confessions
admissible?
The majority,
in a joint judgment delivered by Moldaver J (Cromwell J separately concurring
on the test for admissibility, Karakatsanis J dissenting on that) laid down a “new”
test. I explain the quote marks in a moment. The test has two prongs, as the
Court called them. First, there is a balancing of probative value against
prejudicial effect, and secondly there is consideration of abuse of process.
The prongs need not be considered in that order, because if there would be an
abuse of process in admitting the evidence then it is excluded, or in an
extreme case the prosecution is stayed, without the need for consideration of
the first prong [89].
My quote
marks are because these prongs are not new. The test is only new in the sense
that evidence obtained in the context of one of these operations is
presumptively inadmissible on the first prong [10], [85]. The prosecutor must
prove that, on the balance of probabilities, the probative value of the
evidence outweighs the prejudicial effect of admitting it [89]. But the defendant still has the traditional burden if reliance is placed on abuse of process as the ground for exclusion [11].
While this is
a special rule for special facts, the joint judgment includes explanations of
the balancing exercise and the abuse of process decision that could have
general application.
If one wants
to find disappointment, one should contemplate the missed opportunity to sort
out the relationship between the probative value/prejudicial effect balancing
and trial fairness. As is generally accepted – and obscurely referred to at [109]
- a problem with describing the probative value/prejudicial effect decision as
a balancing exercise is that it suggests that high probative value can only be
outweighed by a high level of risk of prejudicial effect, and this in turn
suggests a high tolerance of risk of trial unfairness. The only solution
offered here is “trial judges will have to lean on their judicial experience”
in difficult cases [109].
A better
requirement would have been that the first prong would focus on trial fairness:
would admission of the evidence create a real risk that the trial would be
unfair because it would endanger the impartial determination of the facts.
There would be no balancing, just an assessment of this risk. “Impartial” here
is used in the sense that it emerges from trial fairness jurisprudence.
Still,
Canadians must work with the prongs as established in this case. There are
valuable comments at [95] – [105] on how probative value should be assessed,
addressing both the circumstances in which the confession was made, and the
credibility of the confession itself. And prejudicial effect is addressed at
[106] – [107].
As far as
abuse of process – the second prong – goes, the joint judgment acknowledges
that this has not hitherto provided an effective remedy in this context, and recognises
that it has to be “reinvigorated” [114], mainly through enhanced judicial
sensitivity to the risk that the circumstances of a given case may amount to
coercion [114] – [118].
One should
ask whether the new test for evidence obtained in the context of Mr Big
operations provides adequate protection against self-incrimination, which was
the basis for exclusion that Karakatsanis J would have preferred [170], [180]-[185].
Moldaver J’s reasons for disagreeing are at [124]-[125], essentially they are that
the way the principle against self-incrimination would provide a remedy here
would have to be worked out, adapting rules of evidence and prevention of abuse
of process (illustrations of similar workings out are the confessions rule and
the right to silence), and the two-pronged approach does that.
Karakatsanis
J’s reason for dissent was that the two-pronged rule does not adequately take into account
broader concerns like human dignity, personal autonomy, and the administration
of justice [167]. The focus should be on three “vital concerns”: the
reliability of the evidence, the autonomy of suspects, and the potential for
abuse of state power [168]. There is established case law on the principle
against self-incrimination and there is no need for a new rule [181].
Cromwell J would have left application of the new rule to the trial court in the event that the prosecutor decided to pursue a new trial, whereas the majority ruled the evidence inadmissible in this case [152] - [163].
The case also illustrates another point: the trial judge should have allowed the defendant to give evidence in the absence of the public (who could have been accommodated in another courtroom to view the proceedings by closed-circuit TV), because of the special vulnerability of this defendant [42], [48], [51]-[55].
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