Rational driving

Anyone using the roads these holidays will be pleased with the Supreme Court’s decision in Aylwin v Police [2008] NZSC 113 (19 December 2008). Some people who will be caught driving with excess breath or blood alcohol levels will be displeased that unmeritorious and technical defences are disappearing, but the huge majority enter pleas of guilty at an early stage and accept responsibility.

There were two offences in Aylwin: failing to accompany an officer (s 59(1)(b) Land Transport Act 1998), and driving with excess breath alcohol (s 56(1)).

On the failing to accompany charge, a point of general interest was made. The defence had not challenged the witness’s evidence that the breath screening test and the evidential breath test had been carried out properly so as to bring them within the statutory definitions of those tests. At the time of the defended hearing the Evidence Act 2006 was not in force, but the Supreme Court, upholding the Court of Appeal, held that unless challenged by the defence the witness’s evidence that the tests were carried out is sufficient proof that they were. One would have expected the rule in Browne and Dunn to have applied, but in any event s 92 of the Evidence Act 2006 now requires cross-examination on “significant matters that are relevant and in issue”.

It was open to the defence, on the failing to accompany charge, to cross-examine on whether the procedures that had occurred complied with the requirements of the definitions of the tests. The defence could, as always, advance any allegation of bad faith if the circumstances warranted that.

The excess alcohol charge was different in that errors in carrying out the breath tests are rendered irrelevant by s 64(4) and (5), so that the prosecution need only establish (para 14 of the Supreme Court judgment):

(a) The fact that a breath screening test was conducted;

(b) The fact that an evidential breath test was conducted;

(c) The results of these tests; and

(d) That [the defendant] was advised of his right to have a blood test.

As protection against errors in the breath testing procedure (whether human error or machine error), the person can elect to have a blood sample taken for analysis (para 11, referring to s 70A). The defence could still allege bad faith, but on the present facts there was no suggestion of bad faith.

There is no mention here of the right to legal advice that a person has during the testing procedures, which arises because of the element of detention necessarily inherent in the process. Breach of that right remains a matter relevant to the admissibility of the evidence of the result of the testing – whether of breath or blood – and this will be determined by the s 30 Evidence Act 2006 balancing exercise.

The judgment does not elaborate what challenges may be made to points (a) and (b) above, other than to mention bad faith. If the defence took issue with whether what was done amounted to, for example, an evidential breath test, then – given that errors in carrying out the test don’t count – attention would focus on whether the device used was an approved device. A challenge based on bad faith would be directed at disputing the witness’s honesty.

Degrees of forgery

Judges don’t always agree that a given statutory text coincides with its purpose. In Li v R [2008] NZSC 114 (19 December 2008) the majority of four judges held that text and purpose coincided, while the Chief Justice dissented. The text was s 256(1) of the Crimes Act 1961[NZ], which defines an offence of forgery:

“Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.”

Here the appellant had been convicted on counts of making false certificates of qualifications and selling them to people who knew they were false documents.

The majority held that this wording was clear and that there was no need for an intent to deceive the person who provides the payment. This places on an equal footing, as far as maximum penalty is concerned, those who make a false document intending to obtain valuable consideration with those who use such a document to obtain such consideration (s 257(1)(a)). The act of selling the false document to a knowing recipient is a making use of the falsity of the document if the seller knows that it will be used deceptively (69). This contrasts with an innocent copying, of a famous picture for example, where the maker believes the purchaser has no intention of using it deceptively (joint judgment at 67, and Elias CJ at 53).

How could anything be more simple, you might wonder. On what basis could the Chief Justice dissent?

She found (4) it difficult to construe the section – a sure sign, I suggest, that something is about to go wrong. She didn’t like the idea that this serious offence could be committed without deceiving the purchaser of the false document. The majority at 52-53 explain why that is not a bad thing.

Central to Elias CJ’s approach is a perception of reduced culpability on the part of those who do not deceive their purchasers (30, 41), but the joint judgment sees no such distinction (53). Elias CJ considers that on the majority’s approach it was sufficient for the judge to direct the jury that an intention to sell the document to a person who was not deceived would be sufficient for liability (39), but that is not the entirety of the majority’s conclusion (69) which recognises that the judge’s direction may technically have been incomplete in its omission of a need for proof that the accused intended the purchaser to use the document deceptively.

The appellant had made a concession (apparently in pleadings, not mentioned in argument) that destroyed her opportunity for a retrial. She had acknowledged that she should have been convicted of a lesser offence (s 256(2)). However, as the majority pointed out, that acknowledgement cured any defect in the judge’s direction (69) and her appeal was dismissed.

Kingdom or country?

For discussion of when time begins to run in relation to the right to be tried within a reasonable time, see Burns v HM Advocate [2008] UKPC 63 (15 December 2008). The fact that a decision is made to hold the trial in another country (here, Scotland) does not mean that time runs from when proceedings are initiated in that country if the accused person has previously been told by officials in one country (here, England) he will be charged.

Given that time ran from when the appellant was first informed he would be charged, the question of whether the delay was unreasonable and if so what was the appropriate remedy was left to be decided after the trial, applying Spiers v Ruddy [2007] UKPC D2.

It was appropriate to view the events as a continuum (Lord Rodger at 24) and to look at substance rather than form (Lady Cosgrove at 52). Delay is to be assessed from the defendant’s perspective (26, 46). Ordinary people will be unaware of jurisdictional subtleties (54) and the obligations under the Convention are incurred by the United Kingdom; the governing consideration is not how the UK arranges its internal jurisdictional matters (27).

On when a person is charged, Lord Bingham’s dicta in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, 91, paras 27-28 were applied (15). All the circumstances must be considered, but

“As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him.”

The implications of deeming

What are the implications of the phrase “A discharge under this section shall be deemed to be an acquittal”: s 347(4) Crimes Act 1961[NZ]?
Does it imply that there should be deemed to have been a verdict of not guilty? And that evidence had been adduced that was sufficient for a fact finder (jury usually) to consider? And that the evidence that the prosecution had adduced at this notional trial had been the strongest that had been anticipated on the basis of pre-trial proceedings?
Or does it simply mean that when the judge told the accused “You are discharged” he meant “You are found not guilty without the need for a trial”?

A difference in understanding of the meaning of “deemed” in this context, where its implications for the special plea of previous acquittal (s 358(1)) had to be determined, was the basis for a difference of opinion in the New Zealand Court of Appeal: R v Taylor [2008] NZCA 558 (17 December 2008).

The majority (Chambers and Panckhurst JJ) in separate judgments placed slightly different emphasis on grounds for their conclusion that where s 358(1) mentions a “former trial” it means an actual trial, not a notional trial that was deemed by s 347(4) to have occurred.

Chambers J at 39 set out his reasons for declining to give “former trial” an expansive meaning. Each of these may, with respect, be challenged. He said an expansive meaning would strain the wording of the subsection, that he didn’t know how the subsection should be re-written, that the same expanded meaning would have to apply in s 358(2) and 359(3), so that and revision of the law would have to be legislative. In answer to those propositions it could be said that there is no straining other than that required by the deeming provision, that no rewriting is required, and that the phrase “former trial” need not have the same meaning every time it is used but can take its meaning from its context.

Panckhurst J focused on the common law origins of the legislative provisions on the special pleas, holding (116) that there is an underlying requirement of jeopardy of conviction. Consequently, “former trial” means an occasion on which the accused was at risk of conviction (117), and that a deemed acquittal does not trump the requirement of actual jeopardy (123).

That, of course, assumes that the legislature did not intend to deem a former trial to have occurred.

Fogarty J dissented on this point. He held (134 – 138) that the deeming provision should not be read down, but instead should be given a liberal interpretation so as to mean that there was deemed to have been a trial prior to the proceedings at which the special plea is made. Parliament intended that a discharge under s 347 should carry all the benefits of an acquittal (139). This removes any apparent inconsistency between the sections (141).

There are attractions in the reasoning of the dissent. An interpretation that avoids legislative inconsistency is preferable to one that requires the legislators who enacted the Crimes Act 1961 to be thought of as fools whose efforts were “curious and archaic” (25).

No doubt the unsuccessful (self-represented) appellant will be drafting his application for leave to appeal to the Supreme Court. On the assumption that these proceedings are not yet at an end, I say no more.

[Update: the Supreme Court refused leave to appeal: Taylor v R [2009] NZSC 45 (15 May 2009), saying that “whatever may be the answer to the s 347 point” the proposed appeal had no prospect of success because the offences were not sufficiently similar to permit the plea of previous acquittal on the facts.]

Don’t mention rights …

Just a note on reverse onus provisions and when the legal burden is appropriate instead of merely an evidential burden: R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73 (10 December 2008).

Lord Hope, with whom the other Law Lords agreed, said at 28:

“Section 40 [of the Health and Safety at Work etc Act 1974] imposes a reverse burden of proof on the employer. In Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264, para 21 Lord Bingham of Cornhill said that the justifiability of any infringement of the presumption of any innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. In para 30 he drew attention to the difference between the subject matter in R v Lambert [2001] UKHL 37; [2002] 2 AC 545 on the one hand, where it was held that the imposition of a legal burden on the defendant undermined the presumption of innocence, and R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736 on the other, where it was held that there were compelling reasons why there should be a legal burden. In the former case, where section 28 of the Misuse of Drugs Act 1971 was in issue, a defendant might be entirely ignorant of what he was carrying. In the latter, offences under section 92 of the Trade Marks Act 1994 are committed by dealers, traders and market operators who could reasonably be expected to exercise some care about the provenance of goods in which they deal. It seems to me that the situation in which the reverse burden imposed by section 40 arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility.”

This direct – almost casual – approach to deciding the appropriate standard on reverse onus is refreshing in comparison to the intricate exercise that bills of rights seem to require, culminating in a balancing of rights to see if there is an infringement and, if there is, a determination of what limitations are justified in a free and democratic society.

Absolute or relative inhumanity

As recently as 18 March 1789 Catherine Murphy was burnt at the stake at Newgate, although locals regarded this event distastefully. Her death did not attract a crowd like that of the 20,000 who witnessed the burning of Elizabeth Herring at Tyburn on 13 September 1773. The method of Catherine’s execution (for clipping coins) shows traces of humanity:

“Catherine Murphy’s execution was to be the last burning of a woman in England and was really was only a modified form of hanging, followed by burning. She was led from the Debtor’s Door of Newgate past the nearby gallows from which 4 men, including her husband, were already hanging, to the stake. Here she mounted a small platform in front of it and an iron band was put round her body. The noose, dangling from an iron bracket projecting from the top of the stake, was tightened around her neck. When the preparations were complete, William Brunskill, the hangman, removed the platform leaving her suspended and only after 30 minutes were the faggots placed around her and lit.”

Is inhuman or degrading punishment a relative, or an absolute, concept? What seems fine to us might be abhorrent in another culture. Or, putting it the other way, should we condemn as inhuman the practices of another culture merely because we would call them so?

There must be many people in cultures not dissimilar to the English who approve of the death penalty. Examples of executions by lethal injection may be cited as illustrations of humanity, not unlike the act of kindness that pet owners may have to authorise. Far more terrible may, in the minds of such people, be the locking of a person in a cage-like cell for the rest of his life, perhaps several decades. Even opponents of the death penalty may not protest very loudly when those who commit hideous crimes are executed in jurisdictions where that is lawful. Absolute opposition may, in such cases, tend to be softened by relativist views.

In R (on the Application of Wellington) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008) the issue was whether extradition of the applicant to Missouri, where he was wanted for trial for two murders, would breach article 3 of the ECHR, the right not to be subjected to inhuman or degrading punishment, where if convicted he would be sentenced to life imprisonment without the possibility of release.

Three of the judges were relativists: Lord Hoffmann (para 27), Baroness Hale (48) and Lord Carswell (57). The absolutists were Lord Scott (40) and Lord Brown (86).

The relativist approach does not simply adopt as legitimate the punishments that are lawful in the foreign jurisdiction. There would be a breach of article 3 if extradition would give rise to a real risk of a punishment that “shocked the conscience” (Lord Hoffmann at 32, citing Ferras v United States) or would be clearly or grossly or obviously disproportionate (35 – 36). The point about relativism is that what might seem unacceptable in the UK may nevertheless be acceptable in the context of the foreign culture. The example cited was the prison practice of “slopping out” – making prisoners empty their own chamber pots: this had been held, by the Court of Session, to be inhuman in Scotland, whereas Lord Hoffmann pointed out that it might be normal in countries “where people who are not in prison often have to make do without flush lavatories” (27).

Underlying the relativist approach is the policy of preventing those accused of serious crimes from obtaining a refuge from justice – by resisting extradition – simply because their crimes deserved severe punishment. Baroness Hale (at 50, 51) referred to para 89 and 100 of Soering v United Kingdom (1989) 11 EHRR 439 in support of the view that all the circumstances of the particular case must be assessed in evaluating whether a likely punishment would be inhumane because the penalty must be relative, or proportionate, to the offence. Concluding that here extradition would not breach of article 3, she added (53):

“There are many justifications for subjecting a wrongdoer to a life in prison. It is not for us to impose a particular philosophy of punishment upon other countries.”

Lord Carswell, the third relativist, also cited para 89 of Soering. He drew the following from Strasbourg jurisprudence (58):

“It has been held in Chahal and in Saadi v Italy (2008, Application no 37201/06, BAILII: [2008] ECHR 179 ) that the risks to the expelling state if such a person is not deported cannot be weighed against the risk of his ill-treatment in the receiving state: Saadi, para 138. If it is established that that ill-treatment would amount to torture or inhuman or degrading treatment, the prohibition is absolute: ibid, para 127. The passage which I have quoted from the judgment in Soering demonstrates that in extradition cases considerations founded upon the importance of extradition may legitimately be taken into account in determining whether the alleged offender’s treatment would attain the minimum level of severity which would constitute inhuman or degrading treatment, an assessment which is relative: Saadi, para 134.”

Saadi is blogged here: see entry for 25 July 2008.

I’m not sure that Lord Carswell is clarifying the point by citation of Saadi. One of the justifications for a severe sentence may be the need to protect society. The need to protect the UK cannot be a justification for concluding that the likely foreign sentence would not be inhuman: Saadi. It is the need to protect the foreign society that may justify the sentence likely to be imposed by that society. But the offender is resisting efforts to return him to that society. There may be cases where that reasoning makes sense (he might pose a risk to the foreign society from his base in the UK) but that was not the situation here. Any risk posed by the appellant to the UK was irrelevant to whether his sentence in Missouri would be inhumane, and while in the UK he posed no risk to Missouri.

Be that as it may, the relativist position can be summarised as, up to the point where we would regard a foreign sentence as unconscionable, what might be regarded as inhuman here may not be inhuman over there. It helps in understanding this to keep in mind the “slopping out” example. The weakness in the relativist position is shown by Lord Hoffmann’s indication that he is not necessarily convinced that the “slopping out” illustration is a good one (27): “Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion.”

The trouble is that once you find an example of something that really would be inhuman treatment in the domestic jurisdiction, you should say it would be inhuman anywhere. This is the absolutist position of Lords Scott and Brown. Indeed, Lord Brown says this very thing at 88. The absolute position does have some awkwardness, because it purports not to impose Convention standards on other countries (86). Lord Scott seeks to avoid the difficulty by suggesting, at 42, that article 3 prescribes minimum standards, not norms, so that while “slopping out” may be below the norms acceptable in Scotland, that does not mean it is a breach of article 3.

All judges agreed that the likely punishment in Missouri was not inhuman and that in the circumstances of this case extradition would not involve a breach of article 3 of the Convention.

Strange to say, the Law Lords did not refer to their decision in R v Secretary of State for the Home Department, ex p Adam, blogged here 7 November 2005, in which the same right was held to be absolute.

DNA record retention

Retention by the police of information about a suspect can be a breach of the suspect’s right to privacy: S and Marper v United Kingdom [2008] ECHR 1581 (4 December 2008).

This case concerns fingerprints and DNA samples taken by the police. Neither of the applicants was convicted and both requested destruction of these records. The police refused.

The Grand Chamber held that retention of the information in such circumstances was a breach of the applicants’ rights to privacy and that vindication was achieved by the Court’s finding of a violation in view of the resulting obligation on the UK to secure the rights of the applicants and of persons in their position.

This decision applies to samples taken directly from suspects. That sort of information collection is now the subject of legislation in many jurisdictions. In New Zealand we have the Criminal Investigations (Bodily Samples) Act 1995. The bracketed words highlight its focus which is the obtaining of invasive intimate samples, if necessary by force; it does not provide a code for the obtaining of such information by other non-invasive means: R v Cooper CA381/00, 19/2/01. DNA from clothing seized during execution of a search warrant was used in that case to establish that the accused was the father of the victim and of her child. The Court of Appeal held that this investigatory technique was not unreasonable, and also that it was lawful, meaning that the Act did not apply to this means of gathering information.

There is in NZ no regulatory regime governing the retention and destruction of information obtained by indirect means such as those used in Cooper. Obviously, where the suspect is convicted, permanent retention of the information may be justified, as it is under the Act for convictions of specified offences. But for people like the applicants in S and Marper, more rules are needed.