Disorderly rights

Offences of disorderly behaviour, involving the simplest of facts, can provide the basis for interminable disputation among jurists. This affords students an introduction to the role of law, the need for certainty and the problem of definition of crime, the proper scope of judicial discretion, the nature of judgment, and the complicating influence of competing rights on the definition of the offence.

Also, such apparently simple cases can be occasions for judicial disagreement as they proceed up the court hierarchy. A dogged appellant can eventually succeed, as happened today in Brooker v R [2007] NZSC 30 (4 May 2007). In this case, the successful appellant represented himself before the Supreme Court, thereby illustrating what many may suspect: it’s the issues, not the lawyers, that matter.

The judges took 288 paragraphs to deliver their separate judgments, and the case was decided by a bare majority of 3 to 2. As Thomas J, one of the dissenters, pointed out (para 150), in all, 10 judges had considered the case, 7 of them were in favour of convicting, and only the 3 majority judges at this final appeal stage effected the quashing of the conviction. That, of course, is an illegal count, comparing – if one might carefully choose one’s fruit – apples with oranges.

For our purposes, the result of the case doesn’t matter. We are more interested in how judges differ in their approaches to deciding how the actus reus of the offence is affected by the existence of competing rights.

I should point out that vagueness in the definition of an offence is not unusual. Most offences can be attempted, and the attempt is a separate offence. To be guilty of an attempt, one must perform an act that is sufficiently proximate to the commission of the full offence to constitute an actus reus of an attempt. Proximity is vague, and fact-dependent. Nevertheless, the courts have worked out various ways of asking whether particular circumstances disclose sufficient proximity. Those cases, certainly not always free of controversy, do not involve the added complication of conflicting rights.

In Brooker, the complication of competing rights was approached in two different ways. In the first, one right was seen as a limitation on the other. The complainant’s right to privacy was seen as a limitation on the accused’s right to freedom of expression, and the question was whether this limitation was justified. If it was, the defendant was guilty. This approach is evident in the majority judgments of Blanchard J (para 69), Tipping J (91).

The second way of dealing with the complication of competing rights does not involve justifying the limitation to the defendant’s right to freedom of expression. Instead, the competing rights are put against each other: the right to freedom of expression as against the right to privacy, and the question is which the balance favours. The dissenters, McGrath and Thomas JJ take this approach (paras 136, 231 respectively).

The other judge, Elias CJ, held that the lower courts had applied the wrong test for what disorderly behaviour means, failing to require a serious disruption to public order, and allowed the appeal because of that error. She added that the defendant could not have been convicted on the correct approach.

The two approaches, summarised above, to dealing with the complication of competing rights in the context of a vaguely defined offence, deserve some reflection. They reveal a difference in the idea of the role of rights in society. For Tipping J, the question was what a reasonable citizen should be expected to bear (para 91): how much disorderly behaviour should a reasonable citizen be expected to bear in the interests of upholding the defendant’s right to freedom of expression? The focus is on the impact on the defendant’s right, because the question is basically what is the proper scope of the criminal law? This may seem a little odd, since it is the defendant who is initiating the conflict. One might have thought that the question should be put as, what limitation on his right to freedom of expression should the defendant be expected to bear (by incurring criminal liability), in the interests of upholding the complainant’s right to privacy?

In contrast to rights limitation, the other approach, elaborated carefully by Thomas J, involves rights balancing. Pragmatists will appreciate his reference to the test of the “reasonable person” (para 199), echoing that introduced by the famous pragmatist Oliver Wendell Holmes Jr. Thomas’s pragmatism has been noted in these blogs before. Some, too, will appreciate his reference to Barak’s “The Judge in a Democracy” (para 177).

Central to this pragmatist view of rights are the ideas that everyone is entitled to be treated with equal concern and respect (para 171), and that the right to dignity is central to all human rights. Primacy is not accorded, as a starting point, to the rights of the defendant when they are in opposition to the rights of another citizen; this playing field is level (232). It is doubtful that, at this point, Thomas J was intending to suggest that all rights will have equal weight in a balancing exercise.

Theory is one thing, putting it into practice another. We do not have to agree with Thomas J’s conclusion on the facts of the case. It is difficult to form a view of these, because each judge, in reporting the facts of the case, puts them in a light which tends to support his or her conclusion. Such is the way of humans.

Questions remain about which of the two approaches, rights limitation or rights balancing, is appropriate to the decision whether behaviour constitutes an actus reus. The four judges who considered this split 2-2. The balancing approach is familiar in the context of determining the admissibility of evidence obtained improperly, where the public policy discretion arises from the need to prevent abuse of process and the related need to avoid bringing the administration of justice into disrepute. The definition of offences, however, has traditionally been based on utilitarian grounds, whereby, as JS Mill put it, the state is justified in restraining the freedom of those within its jurisdiction only to the extent that such restraint is necessary to prevent harm.

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