Judges as scholars

Who are top of the heap, judges or academics?

Should academics be allowed to slap down judges for their indulgence in scholarship when they should be simply deciding cases? Do judges have a responsibility to bring realism to the dreamy theorising of academics?

The senior judges write much of their decisions for the benefit of law students and lawyers. Who else is going to read them, especially when there is no right of appeal? Legal education does not stop at the end of the final classroom session. Indeed, the learning of the law barely starts at law school, even though significant skills and knowledge may be acquired there.

Academics learn the law primarily from judges. To the limited extent that they can bring anything new to the law, academics may be able to point to ways of resolving the contradictions that can arise in case law, by devoting time to research. Research in law usually means looking at the way the same problem has been addressed or avoided by courts in other jurisdictions. If academics expect judges to pay attention to their research, can they criticise judges for doing research of their own? There is no monopoly on the application of legal skills.

Thoughts such as these are prompted by the recently published study by Professor James Allan, Professor Grant Huscroft, and PhD candidate Nessa Lynch, “The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?” (2007) Otago Law Review Vol 11 No 3, downloadable here. See also this article in the New York Times, which refers to that article and to several other studies.

A spectacular example of judicial scholarship, which some might say was at the expense of judgment (I don’t know whether it was or was not), occurred last week in the New Zealand Court of Appeal: Lab Tests Ltd v Auckland District Health Board [2008] NZCA 385. This is not a criminal case, but don’t be alarmed. Just look at the judgment of Hammond J, which starts at para 348. The approach here is cheerful, learned, and above all interesting. Hammond J, a former Dean of the Auckland University Law School, mentions – without condescension – the conflicting views of academic commentators. This is apparently effortless scholarship, and will surely be the envy of academics. It demonstrates that legal learning can be great fun.

A cynical view of judicial scholarship seems to underlie the Otago study cited above :

“Increasingly judges act as academics, giving speeches, participating in conferences, writing law review articles, and contributing to books – if not writing them… Like academics, they are keen to expand their influence, and that of their courts. Rights are a language that is spoken internationally, and judges are writing not simply for domestic but also for overseas audiences – especially other judges and academics, all of whom may promote and further disseminate their decisions. It is not only individual judges who are keen to promote their decisions internationally. Courts are keen to promote and disseminate their decisions internationally as well….”[footnotes omitted] (p 11).

This seems to be a human failing (p 12):

“In all likelihood, personal relationships also play an important role; friendships between judges from different countries – perhaps formed through meetings at academic and judicial conferences – may lead them to cite the decisions of their respective courts. Growth in the use of court clerks is another contributing factor. Left on their own, many judges would have little time or inclination for the sort of research that rights-based internationalism demands. Increasingly, however, courts utilize clerks and executive-type legal officers, many of whom are recent law school graduates and, as a result, likely to be conversant in overseas case law, if not enthusiastic proponents of it.”

On this appraisal, the motives for judicial scholarliness are influence-seeking, and friendship-forging, assisted by subservience to law clerks. Winning friends and influencing people might be by-products, but I doubt that anything other than the joy of scholarship is the real motivation for doing what academics would like to think academics do best.

And why shouldn’t judges be scholars? They have plenty of time for it, as do lawyers. At least Dr Johnson thought they did, as noted by Boswell (Life of Johnson, narrative for Thursday 6th April 1775):


“No, Sir, there is no profession to which a man gives a very great proportion of his time. It is wonderful, when a calculation is made, how little the mind is actually employed in the discharge of any profession. No man would be a judge, upon the condition of being totally a judge. The best employed lawyer has his mind at work but for a small proportion of his time; a great deal of his occupation is merely mechanical.”

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How much have you got?

The presumption of innocence refers to two things: the burden of proof and the standard of proof. It means that the burden of proof is on the prosecution, and the standard of proof is beyond reasonable doubt. The presumption of innocence applies at a criminal trial when the ultimate issue is whether the defendant is guilty.

The presumption of innocence is not the same thing as the right to a fair trial, although in some generalised conceptions of fair trial the presumption of innocence is regarded as a requirement for trial fairness. But it need not be, and in any event the presumption of innocence has exceptions.

The most obvious exception to the presumption of innocence is that if the defendant is relying on the defence of insanity, he must prove that on the balance of probabilities he was insane at the relevant time. This exception is justified on the basis that he will know more about his state of mind than the prosecution, so he should have the burden, and, as it seems unfair to require him to prove insanity to the standard of beyond reasonable doubt, the lesser standard of the balance of probabilities applies.

The law has not regarded the need to raise a reasonable doubt on the issue as a standard of proof. There are only two standards of proof: beyond reasonable doubt, and the balance of probabilities. See, for example Z v Dental Complaints Assessment Committee (blogged here 25 July 2008) and the Index to this site, and the entries under the heading “Standard of proof”, for exceptions to this generalisation.

Another illustration of an exception to the presumption of innocence is where, on proof that he had a particular quantity of illicit drug in his possession, the defendant must prove on the balance of probabilities that he did not have an intention to supply it to another person, if he is to avoid conviction for possession of the drug for supply. This exception is more controversial than the insanity one, because the prosecution should have access to evidence of the defendant’s dealings, and should be able to prove circumstances indicating an intention to supply the drug. That is not particularly different from requiring the prosecution to prove the mental elements of possession of the drug. So this exception to the presumption of innocence may be thought to lack sufficient justification in policy terms and may be a breach of the right to be presumed innocent. See Hansen v R [2007] NZSC 7 (blogged 20 February 2007). In the UK the raising of a reasonable doubt has been held to be “proving” absence of a mental element: R v DPP ex p. Kebilene [2002] AC 326, so that amounts to recognition of a third standard of proof.

Sometimes a reverse onus of proof is applied to the issue of the magnitude of a confiscation order in proceeds of crime applications. This situation existed in Grayson and Barnham v United Kingdom [2008] ECHR 877 (23 September 2008). The focus here was on whether a provision requiring the applicants to show on the balance of probabilities that they did not have sufficient assets to meet a confiscation order, the amount of which corresponded to the court’s assessment of their benefits from their respective offending, was in breach of the fair trial requirement in Art 6§1 of the Convention. This was important, not only because of the amount of money involved, but also because in default of payment prison sentences which were quite hefty were imposed.

The Strasbourg court has long regarded the presumption of innocence as part of the general notion of a fair hearing: Saunders v. United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, § 68. Also, proceedings of this nature are treated as analogous to sentencing: Phillips v. United Kingdom (no. 41087/98, §§ 35 and 39, ECHR 2001-VII.

Well, in the present case it was the applicants (the original accuseds) who had the means of proving their present inability to pay. The Court quoted Lord Steyn, with whom the other Law Lords agreed, in R v Rezvi [2002] UKHL 1, who approved the following reasons given by the Court of Appeal supporting the exception to the presumption of innocence in this context:

“(a) It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings.

(b) The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate …

(c) There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made.

(d) There is the role of this court on appeal to ensure there is no unfairness.”

Those backstop matters – the appropriateness of the proceedings, the avoidance of a serious risk of injustice, and the appellate court’s role of ensuring there is no unfairness – were reflected in the ECtHR’s conclusion (49):

“The Court agrees with the judgments of the Court of Appeal in the instant cases … that it was not incompatible with the notion of a fair hearing in criminal proceedings to place the onus on each applicant to give a credible account of his current financial situation. In each case, having been proved to have been involved in extensive and lucrative drug dealing over a period of years, it was not unreasonable to expect the applicants to explain what had happened to all the money shown by the prosecution to have been in their possession, any more than it was unreasonable at the first stage of the procedure to expect them to show the legitimacy of the source of such money or assets. Such matters fell within the applicants’ particular knowledge and the burden on each of them would not have been difficult to meet if their accounts of their financial affairs had been true.”

There was therefore no violation of the right to a fair trial arising from the reverse onus. The applicants had argued that they were in the unfair position of having to prove a negative, and (for one of the applicants) that the assumptions made by the lower court when it assessed the benefit obtained from offending continued to operate as assumptions when the court decided the ability to pay. The point seems to be that not only did the applicant have to prove inability on the balance of probabilities, but also he had to do so in the face of an additional assumption against him. This was not explored by the Court.

The argument raises two concerns: did the additional assumption against the defendant, assuming it existed, mean that unfairness occurred in the sense that the standard of proof he had to satisy was raised by requiring him to adduce more cogent evidence than he otherwise would have had to adduce; or, was there unfairness arising from a bias by the court against the defendant, which again required him to adduce more cogent evidence that should have been the case? European law asserts that the standard, the balance of probabilities, does not change with the seriousness of the consequences of the decision (see blog discussing Z, above). However, here there was nothing to indicate that the courts in the case of each of the applicants had applied the wrong standard or that they were biased.

More on standards of proof of preliminary facts

In Canada it is necessary that compliance with procedures for interviewing young people be established beyond reasonable doubt: R v LTH [2008] SCC 49 (11 September 2008). The various protections enacted in s 146(2) of the Youth Criminal Justice Act, SC 2002, c. 1 (which does not specify a standard of proof for compliance) are intended to ensure that statements made by young people are reliable (38), and proof of waiver of them is also required to be established beyond reasonable doubt (39).

The balance of probabilities is the standard applicable in New Zealand in respect of preliminary facts such as compliance with the right of a person charged with an offence to be brought as soon as possible before a court: R v Te Kira [1993] 3 NZLR 257, and compliance with the right of persons arrested or detained to consult and instruct a lawyer without delay: Police v Kohler [1993] 3 NZLR 129, and the same applies to young people: R v S (CA220/97) (1997) 15 CRNZ 214. There is some fudging of the standard, as it is called the balance of probabilities having regard to the gravity of the particular issue:

“The first issue is whether the Crown must prove the facts necessary to establish admissibility of a statement under s 221(2) [Children, Young Persons, and Their Families Act 1989] to the criminal standard of beyond reasonable doubt. In the High Court, Paterson J appears to have adopted this higher test, citing the judgment of Thorp J in R v Fitzgerald unreported, 30 October 1990, HC Auckland T183/90.

Fitzgerald concerned compliance with the advice requirements of s 215(1)(f), which must be met before any questioning of a young person is undertaken. It was held that substantial compliance had to be proved to the criminal standard before a statement would be admitted. No argument appears to have been addressed to the issue of standard of proof. Since Fitzgerald this Court has held that in the analogous cases concerning alleged breaches of the New Zealand Bill of Rights Act 1990, the lower standard of proof, or balance of probabilities having regard to the gravity of the particular issue, is to be applied R v Te Kira Police v Kohler…. We see no good reason to elevate the test under this legislation [Children, Young Persons, and Their Families Act 1989,ss 221(2)(b), 222(4)], and to add a second exception to the ordinary rule governing incidental trial issues. Proof beyond reasonable doubt is therefore not required.”

We have noted recently the discussion by the Supreme Court of what relevance the gravity of the consequences has to the standard of proof when the standard is the balance of probabilities: Z v Dental Complaints Assessment Committee, blogged 25 July 2008.

There are good reasons to complain that the fudged balance of probabilities should be replaced by the standard of proof beyond reasonable doubt. Particularly so, because in Kohler Cooke P (as he then was), delivering the decision of the Court of Appeal, said:

“The question of the standard of proof required of the prosecution to establish a waiver was raised in argument. Some American and Canadian judgments speak of a “heavy burden”, a “high standard of proof”, a “very high standard”. See for example Miranda at p 475; Moran v Burbine 475 US 412, 439, n 9, 450-452 (1986); and R v Manninen (1987) 34 CCC (3d) 385, 393. In Te Kira this Court determined that, for questions of fact concerning alleged Bill of Rights breaches, once the situation is such that the onus falls on the prosecution to negative a breach, the appropriate standard is the balance of probabilities but with the gravity of the issue borne in mind. We doubt whether in practice this will lead to results different from those that would be reached in Canada and the US. The Te Kira standard should apply on the issue of waiver as well as on other factual issues under the Bill of Rights Act. As already mentioned, the prosecution must fail by that standard here.”

If the results are not going to be different, what is the problem with requiring proof beyond reasonable doubt?

Well, in NZ the position is determined by the Evidence Act 2006, which was drafted in the light – if that’s the right word – of the authorities mentioned above. The Act specifies – with the unduly fussy particularity that is currently regarded as good draftsmanship – that a finding that evidence was obtained improperly is to be made on the balance of probabilities: s 30(2)(a).

I can’t help wondering whether Lord Cooke would have agreed with the decision of the House of Lords in In re B (blogged here 12 June 2008). I think he would have, and in doing so he would have revised the approach he took in Kohler, above. My current take on this is that the Evidence Act 2006 impedes progress on this point, as has the majority decision in Z, above.

This is not to say that all preliminary facts (those which must be established before other evidence becomes admissible) should be proved to the standard beyond reasonable doubt. There is nothing illogical in requiring the balance of probabilities for these, even where the ultimate issue (guilt) must be proved beyond reasonable doubt. The criteria for admissibility are separate from the criteria for proof of guilt. The choice of standard for proof of preliminary facts is a matter of policy, and in the present context it reflects the importance that the court attaches to compliance with the rights of the accused. In Kohler, above, the Court did not discuss the competing policies or give extended reasons for its choice. Similarly, in R v S, above, the Court simply saw “no good reason” for applying the standard of beyond reasonable doubt, again without policy analysis. Even the Privy Council has decided the issue without extended policy analysis: Smith v R (Jamaica) [2008] UKPC (blogged here 27 June 2008), applying the criminal standard. The reasons for the choice are a mystery.

I say “even” the Privy Council, because the Law Lords, who write their opinions without the assistance of law clerks, are least likely to use a style redolent of the honours dissertation. Posner, in “How Judges Think” (2008), makes this interesting observation (p 221):

“Students are taught to approach judicial opinions as if every word were written by the nominal author – that is, the judge – and the effect is to imbue them with a legalistic outlook, an effect reinforced by their youth (to which … algorithmic thinking as distinguished from pragmatic or legislative thinking is more congenial than it is to older persons) and by an understandable desire to believe that their steep law school tuition is buying them a set of powerful analytic tools. When they become law clerks it is natural for them to write opinions designed to provide legalistic justifications for their judges’ votes. They thus contribute to the mystification of the next student generation.”

In the absence of legalistic justification for the choice of standard of proof of preliminary facts, other than regarding earlier cases as precedents that should (but why?) be followed, there is a need for policy justification, but legal education does not develop policy reasoning.

I’m bad, I’m bad!

“I am so bad that you can’t rely on my confession”: like the Cretan liar, the accused in R v Bonisteel [2008] BCCA 344 (9 September 2008) presents a paradox.

He had boasted about his criminal past in order to gain acceptance into a criminal organisation. At least, that’s what he thought the organisation was. In fact he was talking to undercover police officers. They were trying to get him to confess to the murder of two girls who had died from stab wounds. In pretending to be potentially violent and a person not to be messed with, the main interviewing undercover officer questioned the accused in ways that the accused claimed at trial were oppressive. As a result the accused said he did the killings, but he was inaccurate in his account of the wounds inflicted and in his description of the girls.

If his confession to the killings was admissible at trial, his defence tactic was to say that he was lying in order to gain acceptance into the organisation. The bad things he said about himself, including accounts of other offending and prison sentences served, were said with that objective. The reasons that the gang should think he was bad were the same as the reasons the jury should think he was not bad.

There are some unsatisfactory aspects to the British Columbia Court of Appeal judgment (a judgment by Levine J, with which Lowry and Bauman JJ agreed): see CriminalReview.ca. In particular, these concern whether the defence should have been allowed to call expert evidence on false confessions (67-71). There is a floodgates danger, of course, in allowing such evidence.

What is odd is the Court’s treatment of the admissibility of bad character evidence. This came first in order of points considered, whereas one would have expected it to come after the oppression point. If the undercover officer’s evidence was not obtained through oppression, or other impropriety, then should it be edited to exclude reference to the accused’s bad conduct on other occasions?

Instead, the Court approved the trial judge’s reasoning (48):

“Thus, the trial judge did not expressly consider editing the statements because his analysis led him to the conclusion that the prejudicial portions were relevant to an issue in the case – the truthfulness of the appellant’s confession – their probative value outweighed their prejudicial effect, and the prejudice could be dealt with by a prophylactic warning. In other words, the prejudicial evidence was neither ‘irrelevant’ nor ‘unnecessarily prejudicial to the accused’, so the duty to edit did not arise.”

This led the Court to address the decision on whether a warning to the jury would be an adequate substitute for exclusion of the evidence, and it held that the judge had correctly decided that a warning would suffice.

There is no suggestion in the Court’s judgment that the prosecution was able to call evidence of the accused’s character other than what the accused had said to the undercover officer. The focus was on the relevance of that evidence to the truth of the confession, that is, to its reliability. However reliability does not cure oppression or impropriety which are logically the prior considerations.

Well, if the Court had addressed the confession admissibility issue first, would it have decided that it had been correctly ruled admissible?

Probably yes: the accused had put himself in a position where he must have realised that the sort of conduct that persuaded him to confess (or more likely, to boast) was likely to occur. In the absence of oppression, the next question is whether there was improper police conduct such as to justify exclusion of the confession on public policy grounds. Unlikely, as far as one can tell from the judgment (86-94). So, the confession was admissible. What then of the bad conduct evidence?

The answer is that, once the confession became admissible, the defence would want the bad conduct evidence in to support its claim that the confession was just big talk. Boasting about his criminal past was part of the accused’s tactic to gain acceptance into what he thought was a criminal organisation. His defence was, in effect, “I’m bad, but not that bad.”

Business as usual

Like everyone else, I spend much of my time looking out the window. Except for blind people of course. And those in cells without views. My view is of a forest that looks much as it must have millions of years ago, minus the large and dangerous fauna. I say millions of years with some confidence, as this part of the North Island apparently dates from the late Jurassic. The exasperations of the law have caused me to look at this scene many times. One of the things I wonder about, and have done so today, is why so many criminal appeals are concerned with points that should be obvious.

Vast numbers of criminal appeals are futile, or result from errors that should never have happened. If there is something wrong with this, who is to blame? Are lower courts wilfully contrary or hopelessly dull witted? Are counsel afraid to advise against appeals? Richard Posner in “How Judges Think” (2008, Harvard University Press) says that the high number of criminal appeals is due to appellants not having to pay any costs.

Should lawyers take more responsibility for making decisions – or, more properly, giving firm advice – based on the prospects of success on appeal? Do insurance policies protecting counsel from liability for negligence require that every avenue be explored? Should there be some penalty on judges who make fundamental errors (send them back for a stint in the jurisdiction of first instance)?

It is very rare in a busy criminal practice to come across a point that is genuinely worth appealing. At least it is if the case has been properly handled in the lower court. You would not think so if you got your impressions from reading appellate cases. Those may suggest that every case bristles with genuine appeal points. But they are a very small proportion of the number of cases that are commenced.

But enough of the preamble. Today the High Court of Australia decided that supply of cocaine is likely to seriously endanger the health of the end user: Gedeon v Commissioner NSW Crime Commission [2008] HCA 43. I look out the window and sigh.