Stare decisis: formalism, pragmatism and habeas corpus

The problem of whether to depart from a recent decision of the same court was the subject of Gibson v USA (The Bahamas) [2007] UKPC 52 (23 July 2007). A 7 judge Board decided, 4 – 3, that it would overrule Cartwright v Superintendent of HM Prison [2004] 1 WLR 902 (PC). Cartwright was itself a split decision.

Gibson concerned an enactment that gave a right of appeal against a refusal of habeas corpus, but did not mention any right of appeal against a grant of habeas corpus. All 7 members of the Board held that the decision not to order extradition and to grant habeas corpus, against which the USA could not appeal, was wrong. Indeed, the Privy Council judges who dissented in the result of this appeal described that decision of the judge of the Supreme Court of the Bahamas (the Court below the Court of Appeal) as “extraordinary pedantry” (para 32). The majority agreed, calling it “an astonishing conclusion”. This phrase repeated that used by the Board in Cartwright, which was an appeal by a co-accused of the present appellant Gibson, concerning the same ruling.

The problem was that, pursuant to Cartwright, the co-accused had been extradited to Florida to face the charge of conspiracy to import cocaine and cannabis, because Cartwright had held that an appeal against the grant of habeas corpus had properly been heard by the Bahamas Court of Appeal. The reasoning of the majority in Cartwright was unanimously held in Gibson to have been wrong. The minority in Gibson would, apparently (para 40), not have gone so far as to call it “very wrong”, but it is plain they accepted that it was wrong, because the majority judgment notes (para 14): “each of the seven members of the Board as presently constituted is of the clear view that the minority opinion of the Board in Cartwright was correct and that the Court of Appeal had had no jurisdiction to hear the USA’s appeal in these cases.”

Nevertheless, Gibson was split over whether to follow the earlier decision, even though it was wrong. The minority noted that overturning a previous decision required some special reason, and put its reasons for upholding Cartwright as follows (para 40):

“What special reason exists in this case? The decision in Cartwright is not impeding the proper development of the law. On the contrary, it has been, so to speak, adopted by the legislature of The Bahamas which has amended the 1994 Act to put the matter beyond doubt by giving a right of appeal against a decision to grant habeas corpus as well as to refuse it. It is speculation as to whether other jurisdictions have the same statutory provisions. If there are, and nothing has been done to alter the law since Cartwright, one could infer that the local legislature is satisfied with the decision. Nor has the case led to results which are unjust or contrary to public policy. On the contrary, the decision allowed the correction of a plain miscarriage of justice and supported public policy in allowing The Bahamas to comply with its international obligations. But the majority proposes to perpetuate injustice and a breach of the extradition treaty simply on the grounds that they think that Cartwright was wrong, or, despite the views of three members of the Board, very wrong. In our opinion this would encourage attempts to revisit cases decided by a narrow majority, which are likely to be the most difficult. We therefore do not think that this is a proper case in which to exercise the power to depart from precedent and would dismiss the appeal.”

On the other hand, the majority in Gibson took a formalist approach to jurisdiction (para 27 – 28):

“There can be no getting away from the fact that this appellant is wrongly imprisoned through the misunderstanding or misapplication of the law by the Court of Appeal (and by the Board in Cartwright) with regard to rights of appeal under the Bahamian legislation then in force.

“Of course the view could be taken that the appellant had faced overwhelmingly strong evidence justifying (indeed requiring) his extradition to the USA on the gravest possible charges of drug dealing, that his habeas corpus challenge to committal ought certainly to have failed, and that the erroneous decision in Cartwright has fortuitously enabled the Bahamian Court of Appeal to correct a serious miscarriage of justice. Their Lordships, however, reject that view. The Board’s task is to ensure justice according to law. According to law the Court of Appeal had no jurisdiction to entertain the USA’s appeal, however meritorious that appeal was. So much is plain. The Board should not now shrink from saying so. The appeal must accordingly be allowed.”

This contrast between the minority’s pragmatism and the majority’s formalism reminds me of an observation by Aharon Barak in “The Judge in a Democracy” (2006), p 159:

“The guiding principle should be this: it is appropriate to deviate from a previous precedent if the new precedent’s contribution to the bridging of the gap between law and society and to the protection of the constitution and its values, after setting off the damage caused by the change, is greater than the contribution of the previous precedent to the realization of those goals.”

While Gibson will remain controversial, it contains useful dicta on habeas corpus and stare decisis. Its quirkiness reveals a reversal of the usual positions taken by formalists and pragmatists: here, the formalist majority overruled the precedent, whereas the pragmatist minority would have followed it. Precedent and stare decisis play a stronger role in the English legal tradition than they do in legal systems based on Roman law (see Thomas, “The Judicial Process” (2005), Chapter 6). As Thomas points out (eg at p 161) precedent preserves the bedrock principles propounded in the law, but wide application of stare decisis can become an “imprisonment of reason” if precedent is allowed to perpetuate “the false presumption that there is an impersonal law.” Gibson is, however, a “bedrock” case in that its concern is with the jurisdiction of an appellate court. Jurisdiction is a condition precedent to justice according to law.

Whipping and buggery!

Two points of interest were made in Persad v The State (Trinidad and Tobago) [2007] UKPC 51 (23 July 2007), one being a point of law, the other being a sentencing blunder.

This appeal concerns the exception to the hearsay rule created in R v Hayter (blogged here 7 February 2005). The Hayter exception to the rule against hearsay is that the jury may, when considering the evidence against the accused, take into account a co-accused’s out of court statement, made in the absence of the accused, but only to the extent that it is against the interests of its maker. The point of law decided in Persad is that where the Hayter exception applies, the jury should be directed that parts of the co-defendant’s statement that exculpate the accused must be taken into account.

The sentencing blunder involved the whipping part of a sentence for buggery. The fact that there was no jurisdiction to pass such a sentence had been overlooked in the Court of Appeal, and the sentence had since been carried out. The Privy Council called this most regrettable (para 25).

The appellant’s conviction for buggery was quashed, essentially because the only information inculpating the appellant at trial had been a self-serving out of court statement by a co-accused, and this was inadmissible against the appellant as it did not come within the Hayter exception.

The Privy Council left for consideration in an appropriate case what the position would have been if the co-accused’s hearsay statement had been exculpatory of its maker to the extent that, while accepting liability for one offence it attributed sole responsibility for another (perhaps more serious) offence to the accused. In Hayter this distinction did not arise, as the accuseds where on trial on joint charges.

In New Zealand the Hayter exception operates until 1 August 2007 (next week). Then the Evidence Act 2006 will come into force, and s 27(1) will prevent the prosecution offering evidence of a co-defendant’s statement (presumably, a statement made by the co-defendant to a person in authority in the absence of the defendant) against a defendant. This does not, of itself, prevent another co-defendant offering it against the defendant, but a prohibition of such use could be implied in the interests of consistency. The policy underlyings 27(1) seems to be recognition of the inherent unreliability of accusations made by one defendant against another in out of court statements, particularly when made to persons in authority, and the legislature has omitted to acknowledge that in some circumstances (as in Hayter) these statements can have sufficient apparent reliability to be admissible.

Saying and using

A firearm is “used” in the commission of an offence if its presence or immediate availability is revealed: R v Steele [2007] SCC 36 (20 July 2007). There, a gun was mentioned to occupants of a house during the commission of a “break and enter” where some of the four offenders used phrases such as “We have a gun”, “Get the gun”, and “Get the gun out”.

A loaded gun was, shortly afterwards, found in the offenders’ car. Two of the occupants of the house had seen one of the offenders reach for something that might have been a gun. The trial judge found as a fact that one of the offenders had brought the gun into the house (para 40). The only really live issue on this appeal was whether the judge had made that finding to the necessary standard of beyond reasonable doubt. The Supreme Court held that she had, and that therefore it was not necessary to consider whether the offenders could be liable on the alternative basis that the gun, although left in the car during the break and enter, was immediately available to the offenders at the material time.

This latter source of liability, when the firearm is immediately available to the offender, was held to be “use” of the firearm (para 32), following the United States Supreme Court in Bailey v US, 516 US 137 (1995). The Canadian court quoted (para 30) the following passage (p 148) from that case:

“The active-employment understanding of “use” certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender’s reference to a firearm in his possession could satisfy §924(c)(1). Thus, a reference to a firearm calculated to bring about a change in circumstances of the predicate offense is a “use,” just as the silent but obvious and forceful presence of a gun on a table can be a “use.””

In Steele it was emphasised that the firearm must actually exist and be immediately available, so that “idle” threats of use of a gun (which did not in fact exist) would not be “use” of the firearm (para 35). Nor did the Supreme Court approve of the Court of Appeal’s requirement of “proximate” availability, as that left the degree of proximity vague, and the offence required present use rather than future use (para 37).

In New Zealand it has been held that producing a gun from a bag when confronted by a police officer, so as to make the officer fear for his safety, is “using” the firearm: R v Swain (1992) 8 CRNZ 657. On the basis of Steele, it would also be use of the gun if the offender were to say (threateningly) to the officer that he had a gun in the bag.

Judicially-raised appeal points

Occasionally, the best point in favour of an appellant may only be noticed by the judges of the appellate court. This occurred in Charles v R (Saint Vincent and the Grenadines) [2007] UKPC 47 (16 July 2007). The Board observed (para 17):

“…It is the duty of an appellate court to advert to any such matter which may appear to it to be significant and possibly determinative of an appeal in favour of the accused.”

This had happened in favour of the appellant’s co-accused, whose appeal was allowed by the Court of Appeal; but it was overlooked when the same Court dealt with the appeal by Mr Charles.

The critical point in this case was a misdirection by the trial judge about the use that the jury may make of the statements that each of the two accused had made to the police. The jury had been told, wrongly, that they could use each statement as evidence against the other accused.

This is a long established and simple point, and it has survived statutory reforms of the law of evidence. For example, in New Zealand, the Evidence Act 2006 (to come into force on 1 August 2007) preserves this rule in s 27(1). The reason for the rule is the obvious one that each statement will be unreliable to the extent that it is relevant in relation to the guilt of another accused. At para 8 of Charles, the Board observed of the co-accused In the statement he fully admitted complicity in the shooting, but tended, as is not unknown in such cases, to throw more of the blame on his accomplice.”

For the proper form of the direction, the Board recommended as follows (para 16):

“In England and Wales the standard models of directions prepared by the Judicial Studies Board and published in its Bench Books are of great assistance to judges, and any similar venture in other common law jurisdictions is likely to be useful.”

A retrial was ordered in this case because there was no discernable reason for differentiating between the accuseds as far as the significance of the misdirection was concerned.

Some observations were made on identification procedures. Here, the witness (a victim who survived) had had a good opportunity to observe the person who she said was Mr Charles, so any deficiencies that had occurred in relation to the jury being warned as to the need for care were not of critical importance in this appeal. At para 12 the Board summarised the way the use of photographs should be treated:

“Their Lordships consider that some care has to be taken when identification from photographs is carried out, although it is not in itself an improper practice. The rules applicable in England and Wales under Code of Practice D, although not binding, form a reliable basis for good practice. Two basic rules are set out in May & Powles, Criminal Evidence, 5th ed (2004), para 14-35:

‘(1) The police may show a witness photographs in order to identify a suspect.
‘(2) Once a man has been arrested, and there is therefore an opportunity that he can be identified in person, photographs should not be shown to witnesses before an identification parade.’

“As the learned authors point out, when the police are looking for a culprit, the showing of photographs to witnesses may be essential: indeed, it may be the only way in which the culprit can be identified. Once he has been picked out and is available to take part in an identification parade, photographs should not be shown to witnesses. They should instead be asked to attend an identification parade, as should also the witness or witnesses who picked the suspect out from photographs. In relation to the latter, the procedure set out in the headnote to R v Lamb (1980) 71 Cr App R 198 should be followed, viz, the defendant’s advisers should be informed of the showing of the photographs and the decision left to them whether to refer to that at trial. If they do so decide, the photographs should not be shown to the jury, and they should be warned of the consequence that the reliability of the identification is likely to be decreased.”

Another topic mentioned in this case is the Mushtaq direction (blogged here 22 April 2005) concerning the need for the jury to be satisfied that a statement was made voluntarily before they can rely on it (para 14):

“The reasoning of the members of the Appellate Committee was not identical on all points, but a majority held that in the light of section 76(2) of PACE a confession which was not made voluntarily could not be admitted in evidence, and a differently constituted majority held that the direction was inconsistent with the requirements of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. St Vincent and the Grenadines has a statutory provision equivalent to PACE and their Lordships accordingly consider that in appropriate cases a direction should be given along the Mushtaq lines, that the jury should not rely on a confession which they think has or may have been obtained by maltreatment or oppression, even if they conclude that its contents were true.”

This common law power of the jury to reject a statement as a result of their own assessment of its voluntariness, is in parallel with the judge’s duty to exclude the statement from evidence if he is not satisfied beyond reasonable doubt that it was made voluntarily. The jury here is, in effect, reviewing the judge’s decision as to admissibility. The need for the jury to be directed about this has not been addressed in the Evidence Act 2006[NZ], so, apparently, it remains as a common law requirement.

Lawfulness, arbitrariness and road blocks

When the police, in an effort to catch someone who has committed a serious crime, set up a road block and question motorists, are they subjecting the occupants of the cars to arbitrary detention if there is no statutory authorisation for it? This question was considered in R v Clayton [2007] SCC 32 (6 July 2007).

The Supreme Court of Canada unanimously restored the convictions of the two respondents for offences involving firearms. Within minutes of receiving a “911” call concerning apparent armed offending in a car park, police set up a roadblock at its exit. Although the respondents’ car did not match the description given by the caller, it was the first and only car to leave. Clayton, the passenger, was wearing gloves, although the weather was warm. Clayton and the driver, Farmer, were consistent with the description of the offenders that the caller had given, in that they were “black males”. Evasive behaviour by Clayton contributed to the police decision to search the car.

Although the result was unanimous, the Court split in its reasoning. The majority judgment, by Abella J, of herself and McLachlin CJ, Bastarache, Deschamps, Charron and Rothstein JJ reasoned that the detention in this case was lawful at common law so there was no violation of the Charter right against arbitrary detention.

The other judges, Binnie (who delivered their judgment), LeBel and Fish JJ held that, yes, the detention here was lawful at common law, but it was still necessary to consider arbitrariness under the Charter; since there was a breach in that the detention was arbitrary (because everyone was to be stopped), the next question was whether this was a justified limitation (s 1) on the right not to be arbitrarily detained. Application of Charter jurisprudence (R v Oakes [1986] 1 S.C.R. 103) indicated that this limitation was justified.

Both approaches involve balancing exercises. Abella J pointed out (para 21) that there is a consistency between common law powers and Charter values, because under each the state must justify interference with liberty. The common law balancing, pursuant to LeDain J’s dictum in Dedman v. The Queen, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, 35 requires that

“The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.”

The Court in Clayton unanimously held that under this test the police action here was lawful at common law (Abella J at 32, Binnie J at 94).

At that point, Abella J held that there was therefore no arbitrary detention (para 41). This reflected her initial proposition (para 19) “If the police conduct in detaining and searching Clayton and Farmer amounted to a lawful exercise of their common law powers, there was no violation of their Charter rights.”

Binnie J, however, thought differently. His position (para 101) can be summarised as, some detentions may be lawful because they are arbitrary but justified limitations under s 1 of the Charter, so just because a detention is lawful does not mean that it is not arbitrary. Here is what he said:

“101   On the facts, I believe the police roadblock in this case, although authorized by the common law, did infringe the respondents’ rights under s. 9 of the Charter, which states as follows:

          9. Everyone has the right not to be arbitrarily detained or imprisoned.

An arbitrary detention can be upheld if found to be prescribed by a law which in itself constitutes a reasonable limit under s. 1 (see Hufsky [1988] 1 S.C.R. 621 and Ladouceur [1990] 1 S.C.R. 1257). It is in this sense, I believe, that the obiter in Mann [2004] SCC 52 that “a lawful detention is not ‘arbitrary’” (para. 20) should be understood. A detention, though arbitrary, may still be constitutional if the law on which the detention rests is a “reasonable limit” within the meaning of s. 1. The specific point in Mann itself was that a detention based on individualized suspicion is based on rational criteria and is not, therefore, arbitrary.”

This reasoning assumes that the notion of arbitrariness has not already been taken into account in the common law balancing exercise. What amounted to arbitrariness here, as Binnie J put it (para 103) was “…there was no individualized suspicion of them or the vehicle in which they were travelling (which did not match the 911 caller’s description) or other criteria to “tailor” the roadblock more precisely.”

One would have thought that the Dedman test, above, encompasses those matters. Binnie J did address this, however, saying (para 78):

“I do not believe the Dedman analysis and the s. 1 analysis are duplicative of one another. While both involve a measure of balancing, Dedman is a creature of the common law, and nothing is said explicitly in that case about the presumptive paramountcy of “the liberty interfered with” or putting the onus on the Crown to “demonstrably justify” the measure as a “reasonable limit”. Nor does Le Dain J. speak explicitly of such concepts as minimal impairment. The Charter standard is higher. The pre-Charter common law position was more loosely framed in recognition perhaps of the reality that relevant evidence would generally have been admissible even if the police conduct was unauthorized: R. v. Wray, 1970 CanLII 2 (S.C.C.), [1971] S.C.R. 272; Hogan v. The Queen, [1975] 2 S.C.R. 574.”

That is to take a rather static view of the common law balancing exercise, treating it as something to be done as if the Charter did not exist. Binnie J’s analysis produces the potentially confusing concept of the “lawful but arbitrary” detention. We might wonder, also, whether the detention here was really “arbitrary”: to detain for brief questioning all the people leaving the scene of a crime in the circumstances of this case did not involve the capriciousness or randomness that “arbitrary” connotes. Having found the search lawful at common law because it was reasonable, the conclusion should have been that there were no Charter issues. That was Abella J’s reasoning.

Of course Binnie J concluded that the detention was, although arbitrary, justified under s 1 of the Charter. There is merit in considering all rights balancing within the framework of the Charter, where the balancing process has received greater analysis than at common law. While this case is relatively uncontroversial, because of the potential public safety concerns, where the facts are innocuous the balancing can be controversial, and the influence of a Bill of Rights may not make the balancing exercise easier, as we saw in discussing Brooker v R [2007] NZSC 30 (blogged here, 4 May 2007).

Eliminating floppiness?

Vagueness in the criteria for the admission of evidence may allow a judge to take account of the accused’s right to a fair trial. This sort of justification for vagueness was advanced in Ahern v R (1988) 165 CLR 87, at para 17:

“The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the terms ‘reasonable evidence’ is desirable.”


That threshold of reasonable evidence refers to the non-hearsay evidence of the existence of a common intention and of the accused’s participation in the carrying out of that intention, in one of the more complicated of the common law exceptions to the rule against hearsay.

This exception to the hearsay rule (known variously as the co-conspirators exception, the preconcert exception, or the common enterprise exception) has a number of components. The hearsay component is a statement made by a person, not available as a witness, about what the accused would be doing in furtherance of the relevant common purpose. If the other requirements of this exception are met, this is the statement that becomes admissible evidence. As with all hearsay evidence, the law imposes a requirement of reliability on such a statement before it can be admissible. In addition, the co-conspirators rule has a precondition concerning the non-hearsay evidence in the case, which also applies before the hearsay statement can be admitted in evidence. This is, proof (to a degree which was the subject of today’s decision in Jiang, discussed below) that there was a common purpose and that the accused was a party to it. A further limitation imposed by the co-conspirators rule is that only hearsay evidence which demonstrates the accused’s participation in the furtherance of the common purpose is admissible; narratives of what the accused did in the past do not usually satisfy this “in furtherance” requirement.

There has been a difference of judicial opinion over whether the threshold applicable to the non-hearsay evidence in this exception should be reasonable evidence, or proof on the balance of probabilities. The difference has usually been acknowledged to be of little practical significance in the cases where this point has arisen, but, nonetheless, some judges have supported the balance of probabilities formulation. Indeed, until today, the threshold in New Zealand was the balance of probabilities. Canada uses the balance of probabilities: R v Carter (1982) DLR (3d) 385 (SCC) and R v Mapara [2005] SCC 23 (blogged here 4 May 2005).

Today, the Supreme Court in Jiang v R [2007] NZSC 51 (also called Qiu v R) held that the threshold applicable to the co-conspirators’ exception is reasonable evidence. The Court noted that this criterion is in “harmony” with the provisions concerning the admissibility in the Evidence Act 2006 (enacted, but not yet in effect). Section 18(1)(a) of that Act requires, as one of the conditions of the general exception to the exclusion of hearsay statements, that “the circumstances relating to the statement provide reasonable assurance that the statement is reliable”. This, of course, is a reference to the reliability of the hearsay statement.

This “harmony” point is an agreeable consistency, but it is not compelling, because harmony between the reliability of the hearsay statement and the non-hearsay threshold is not strictly necessary. They are quite distinct requirements.

Under the original form of the Act (see below for reference to new s 12A) it would have been necessary to ask what is “reasonable assurance” of reliability of the hearsay statement. That could be indicated by non-hearsay proof on the balance of probabilities of the existence of the common intention, plus the other requirement of the common law exception, namely that the statement was made in furtherance of the common design. Or it could, as the Court held, be indicated by reasonable non-hearsay evidence of the common purpose. I use the word “indicated” here, because it is possible that a hearsay statement concerning the accused’s participation in the joint enterprise could carry reasonable assurance of reliability for reasons other than that the non-hearsay evidence reaches a threshold. It may be that, if that is the position, then the co-conspirators exception does not need to be relied on to achieve admission of the hearsay statement.

In any event, the Evidence Act 2006 is to be changed from the way it was when the Supreme Court decided Jiang. A new section, 12A is to be inserted, providing that the common law rules concerning co-conspirators statements are not to be affected by anything in the Act. Of course, one view is that the common law may be evolved to bring it into line with the general hearsay exception in the Act, but it is also possible to infer a legislative expression of confidence in the common law rules in their form as at the date of this (now, future) amendment.

Another point which is unclear is whether reasonable evidence means the same thing all the time, or whether it is variable, sometimes being more than proof on the balance of probabilities and sometimes less.

In argument in Jiang (SC41/2006, 15 February 2007) Tipping J raised the question whether reasonable evidence is more or less than the balance of probabilities (p 32 of the transcript):

“… [the trial judge] then talks about balance of probabilities as if that was the higher standard. I think she takes the view that reasonable evidence is a lower threshold than balance of probabilities which is a debatable point.”

Blanchard J added (p 33):

“… I wasn’t sure which is higher than the other. I actually think I prefer reasonable evidence which is safe to admit because it’s a more direct expression. It tells you what to look at whereas balance of probabilities is a bit floppy in this context.”

These concerns were not addressed in the Court’s judgment in Jiang. It seems that, where appropriate, the requirement of reasonable evidence will be higher than the balance of probabilities.