Is partial fairness acceptable?

In USA v Barnette [2004] UKHL 37 (22 July 2004) the House of Lords considered the problem of whether a judgment from a foreign court should be enforced in the UK although that foreign judgment may have arisen from proceedings that were unfair to the party opposing enforcement. As it turned out, the HL decided that the foreign court proceedings did not involve unfairness, so consideration of the problem was obiter. However, of interest is the question of whether degrees of unfairness may be tolerated. Parts of Barnette refer to the need for a “flagrant” or “gross” denial of fairness, and the need for “an extreme degree” of unfairness.

It is suggested that a distinction exists between degrees of risk of unfairness, which is a proper consideration, and degrees of unfairness, which is a fallacy. Dicta relied on in Barnette refer to the threshold that needs to be met before the court will act to prevent a breach, in other words, how sure the court needs to be that a breach of fair trial rights had occurred. Some rights are subject to qualification, and in relation to those it may be correct to refer to a gross denial of them, but the right to a fair trial is recognised as fundamental, primary and absolute. References to flagrant breaches or gross breaches of the right to a fair trial should be read as meaning breaches which are clearly demonstrated and not merely speculative.

Personal searches on suspicion

The common law has constrained the ability of police officers to search suspects, the greatest power being in relation to suspects who have been arrested. Arrested people may be searched if there is a possibility that a weapon will be found, in the interests of preventing harm. There has been no general common law power to search people, and where powers of search exist they have been created by statute. For example, s 202B of the Crimes Act 1961 [NZ] allows a police officer to search a person if there are reasonable grounds to believe that an offensive weapon will be found.

The Supreme Court of Canada in Mann v R [2004] SCC 52 (23 July 2004) has changed the common law by permitting a police officer to “pat down” a person if the officer can (if challenged to do so in court) articulate a reason why such a procedure was necessary to protect the safety of the officer. Such “pat down” searches occur without necessarily involving the detention of the person, and consequently rights that come into play upon detention do not arise. The officer must, of course, be acting in execution of duty in speaking to the person, and this includes the general duty to prevent and investigate crime. The person need not therefore be suspected of committing an offence.

Plainly, while it is sensible to allow officers to ensure their own safety while they act within the law, difficult issues of fact may arise because of the fine line between patting down and ascertaining the contents of a pocket. Such a line was breached in Mann, where the officer reached into a pocket where he had detected something soft (which turned out to be a bag of cannabis); he had gone beyond acting to secure his safety. There could easily be disputes over whether the person consented to revealing what was in his pocket, although it must be acknowledged that the courts are used to determining such disputes. It is, of course, inherently unlikely that a person would give free consent to a search, if he knew that the officer had no right to require it, when it would inevitably incriminate him.

Eroding jury unanimity

In R v Siloata 14/7/04, CA477/03 the NZCA held that when the presumption of purpose of supply applies upon proof that the accused had possession of a particular quantity of drug, the accused has to disprove that purpose to the unanimous satisfaction of the jury: there is no room for disagreement among jurors about this. If one juror thinks the accused has not satisfied the burden of proof then all jurors must find him guilty.

The Court reasoned that to hold otherwise would defeat the reasonof having the statutory presumption of purpose.

Unfortunately, the Court’s reasoning means that the presumption cannot be used unless all jurors agree that the accused had possession of the necessary quantity of drug. This disadvantages the prosecution. The Court’s reasoning confuses the fact-finding role of individual jurors (each of whom should be able to use the presumption if they find the necessary preliminary fact proved) with the verdict-finding role of the jury as a whole (which has to be agreed on its verdict).

Update: readers will be pleased to note that the Supreme Court has overruled the Court of Appeal’s decision on this point: Siloata v R 16/12/04, SCC CRI 8/2004.

Information obtained by torture

In A and others v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) it was recognised that the Court may permit information obtained by torture carried out on an informant by strangers to the litigation outside the jurisdiction to be used by one party to the proceedings in support of its case for extradition of the opposing party.

This introduces a moral cloud over the Court’s readiness to prevent an abuse of its proceedings (or to prevent an abuse of executive power).