No, you decide …

When should a court of second appeal remit the question of whether to apply the proviso to the appellate court below?

The proviso allows an appellate court to dismiss an appeal on the basis that an error that had occurred at trial did not amount to a “substantial” miscarriage of justice.

In Mahmood v Western Australia [2008] HCA 1 (30 January 2008) the High Court of Australia remitted to the Court of Appeal of the Supreme Court of Western Australia the question of whether the proviso should be applied. The error at trial, the occurrence of which the Court of Appeal had not accepted, was held by the High Court to have been a failure by the trial judge to give the jury a direction, when all she had given was a comment.

Directions are binding on the jury, whereas comments may be ignored: para 16 of the joint judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ (with which Hayne J agreed).

In this case, part of a video tape made a week after the murder of the accused’s wife, showing the accused reconstructing for the police his movements at the scene, was shown to the jury at the request of the defence. This was to show how the accused got blood on his clothing. The defence was willing to have the jury shown the whole tape, but the prosecution objected on the ground that the tape was self-serving. The only judge to deal with this point in the High Court, Hayne J, held that the whole tape was no more self serving that an ordinary police interview which included denials of guilt: there were aspects of an inculpatory nature, such as admissions of presence at the scene, opportunity, and so on. The prosecution should adduce all the admissible evidence that it has that incriminates the accused (para 38 – 41).

A problem arose at trial because the prosecutor in closing suggested to the jury that the accused’s demeanour in the part of the video they were shown disclosed a lack of emotion consistent with a cold-blooded intent to kill. The judge declined a defence request to have the whole tape shown, saying she would deal with the matter in her summing up to the jury.

The Court of Appeal had held that what the judge told the jury was sufficient to rectify the unfairness that arose from the prosecutor’s comments. The High Court disagreed, and remitted the question of the application of the proviso to the Court of Appeal.

What would an ordinary bystander expect the Court of Appeal to do? Probably, to conclude that the failure to give the jury a direction did not matter because the comment was sufficient to rectify the unfairness.

Only the comments of Hayne J could draw the Court of Appeal away from their earlier stance. From his approach it is clear that much evidence (the two hour video tape, of which only a few minutes had been shown to the jury) that should have been adduced by the prosecution was not, and that this included evidence that could have assisted the defence.

The way the proviso is to be approached in Australia has been considered most recently in Evans v R (blogged here 20 December 2007). There, since the defence was not able to be fully put at trial (alibi evidence was not permitted to be called), and because inadmissible evidence had been allowed, the proviso could not be applied. Mahmood seems to be a case where the proviso should not be applied because a significant amount of evidence in this purely circumstantial case had not been received by the trial court.

The approach to the proviso is still obscure, even though there have been numerous considerations of it by the High Court. In declining to address the difficulty further in this case, and in remitting the question to the lower appellate court, the High Court has left the impression that it may be getting a bit tired of wrestling with the problem of when to apply the proviso.

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A lesser right

When does a breach of a detainee’s right to be informed of the reasons for detention or arrest make the detention or arrest unlawful?

In Saadi v UK [2008] ECHR 79 (29 January 2008) the appellants had been held in detention at a facility at Oakington for 76 hours before they were properly informed of the reasons, which were that this was the procedure for fast-tracking their applications for refugee status. The Grand Chamber held, 11 to 6, that the procedures for processing applicants for refugee status did not breach their right to liberty and security (Art 5 § 1), but it held unanimously that there had been a violation of the Art 5 §2 right to be informed promptly of the reasons for the detention.

This latter point, that there was a breach of the right to be informed promptly of the reasons for arrest or detention, had been accepted by the House of Lords: [2002] UKHL 41 at para 48, per Lord Slynn with whom the others concurred:

“48. It is agreed that the forms served on the claimants here were inappropriate. It was, to say the least, unfortunate but without going as far as Collins J [at first instance] in his criticism of the Immigration Service, I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention.”

Why not? This point, apparently being agreed between the parties, was not explained. The Court of Appeal, [2001] EWCA Civ 1512, did not deal with it, and Collins J (whose judgment is appended to the CA’s judgment) held, at para 15:

“The use of inappropriate forms and the giving of reasons for detention on those forms which may not have been wholly accurate do not affect the lawfulness of the detention. The real reason [for the detention] was the new Oakington process [ie the fast-track processing of applications]. If that was lawful, the disgraceful failure to prepare proper forms cannot render it unlawful. In any event, it may be that in the cases of the illegal entrants the immigration officers could properly rely on at least the absence of identification and the clandestine entry as factors justifying detention even if, had Oakington not been used, temporary admission would have been granted. I do not need to go into the matter further since Mr Scannell has not sought to argue that the muddle about reasons renders the detentions unlawful.”

In the European Court, the Grand Chamber upheld the Chamber’s decision that there had been a breach of the right to be informed promptly of the reasons for detention, and also that the finding of the Court constituted just satisfaction for the breach. This had not been contested on the appeal to the Grand Chamber.

Accordingly, it seems that it must be taken as obvious that if a detention is lawful, it will not become unlawful merely because of a breach of the right to be informed of the reasons for it. This right must be seen as very much a lesser right, than the right to liberty. Pragmatically, of course, that is appropriate, as it may be difficult to communicate with uncooperative detainees. The breach might have some utility in supporting a claim of self defence, if the defendant, having offered physical resistance to being detained, was consequently charged with obstruction or assault.

This approach, separating questions of the lawfulness of the arrest or detention from questions of the consequences of the breach of the right to be informed promptly of the reasons for the arrest or detention, is common. For example, in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA), it was held that:

“[64] In the High Court Miller J was prepared to accept that there were breaches of s23(1)(a) and (b) of the New Zealand Bill of Rights Act [the right to be informed at the time of the arrest or detention of the reason for it, and the right to consult and instruct a lawyer without delay and to be informed of that right] which occurred when the appellant was taken into custody pursuant to the interim recall order. He concluded, however that the detention was not unlawful and, in this regard, he referred to R v Shaheed [2002] 2 NZLR 377. Miller J was unimpressed by the contention that there was also a breach of s23(3) [the right to be brought before a court as soon as possible]. He said that the suggestion that the appellant should have been taken before a Court was inconsistent with the procedure provided for under the Criminal Justice Act. In any event, when the appellant was taken into custody on the interim recall warrant, he was not “arrested for an offence”.

“[65] We broadly agree with Miller J although we have reservations as to whether there was a breach of s23(1)(a) and, indeed, as to the relevance of Shaheed. The failure to comply with s23 did not render the detention under the interim recall warrant unlawful. Still less could such failure render unlawful the detention under the final recall warrant. The contention that the appellant was required to be taken before a Court by reason of s23(3) is untenable essentially for the reasons given by Miller J.”

Here the Court of Appeal had reservations about whether it was relevant to balance the right of the state to recall a parolee to detention against the right of the parolee to be informed of the reasons for his detention, which is the exercise behind the reference to Shaheed. It would indeed be an extension of the application of Shaheed if it were to be used in this context, because that is currently reserved for the determination of evidence admissibility (now enacted in s 30 of the Evidence Act 2006). What is noteworthy here is the way the courts assume that breach of the lesser right could not affect the lawfulness of the arrest or detention.

Fixing bad law: bias in military tribunals

Perceived bias can amount to a breach of a suspect’s rights at a stage of the proceedings prior to trial. This is illustrated in Boyle v United Kingdom [2008] ECHR 15 (8 January 2008). The question of whether the suspect should be released on bail prior to his court martial was determined by his commanding officer, who was potentially required to make other decisions in the proceedings, including whether to amend the charge, dismiss it, deal with it summarily, or refer it to a higher authority for determination, and whether to be involved in the prosecution of the charge. There was also a conflict between the CO’s roles because he was responsible for discipline within the suspect’s unit.

The European Court held that there had been a breach of Art 5.3 of the Convention, as the commanding officer was not within the meaning of the phrase “a judge or other officer authorised by law to exercise judicial power” because the suspect’s misgivings about the CO’s impartiality were objectively justified.

The approach to whether there is bias (actual or perceived) is the same as when the tribunal is acting as a court (eg Martin v United Kingdom blogged here 30 October 2006), but here the issue was not fair hearing (Art 6) but instead it was the exercise of judicial power (Art 5.3).

As far as remedy was concerned, the appellant had been denied bail and was acquitted at court martial. He did not claim pecuniary loss. He did seek damages for breach of his rights, but since it could not be said that if his rights had not been breached he would have been released on bail, the Court held that the judgment itself was just satisfaction for any non-pecuniary damage. For another example of this result, see Young v United Kingdom, blogged 19 January 2007.

We may wonder how snappily changes are made to the law that the European Court finds to have been in breach of the Convention. In Young, the proceedings in the European Court began on 4 July 2000 and were concluded on 16 January 2007. In the meantime, the Prison Rules were amended from 18 April 2005 in ways that appear to be designed to meet the criticisms which were made in Young.

The present case, Boyle, began in the European Court on 25 February 2000 and was in respect of proceedings that had been conducted under the Army Act 1955[UK]. New legislation, the Armed Forces Act 2006[UK] is now in place.

LCN DNA analysis

The recent decision of the Northern Ireland Crown Court in R v Hoey [2007] NICC 49 (20 December 2007) mentions that New Zealand is one of two countries (the other being the Netherlands) where the Low Copy Number DNA analysis technique is accepted as a sound basis for expert opinion in evidence.

For a discussion of that case, and of whether LCN DNA evidence has been accepted for that purpose in New Zealand, see my draft paper available here.