Canadian Supreme Court on Sentencing Child Sexual Abuse

Ever so often, the Canadian Supreme Court delivers a major sentencing judgment addressing policies and principles that are also recognised and applied in other jurisdictions. As such they are of great comparative interest, and especially perhaps in Ireland because of certain constitutional and systemic features the two countries have in common. Four of those features are worthy of note. First, Canada, like Ireland (for now at least), is a non-guideline jurisdiction. Most Canadian provinces have judicially-developed starting points or sentence ranges for certain offences, as do we, but there are no formal guidelines like those in England and Wales or in parts of the United States. Secondly, proportionality is the overarching distributive sentencing principle in both jurisdictions. In Canada, that principle is now enshrined in the Criminal Code (s. 718.1) whereas here it has been judicially developed, as it originally was in Canada. Thirdly, both countries have written constitutions, providing for judicial review of legislation and affording strong protection to personal rights and procedural fairness. In both jurisdictions, legislation may be struck down if found to be in conflict with the Constitution (which, in Canada, for this purpose is the Charter of Rights and Freedoms adopted in 1982). See R v Nur [2015] 1 S.C.R. 773 (Canada) and Ellis v Minister for Justice [2019] IESC 30 (Ireland). The legislatures in both countries are therefore subject to certain constraints in terms of the punishments they can specify for offences and in enacting more general sentencing rules. Fourthly, both countries share a broadly similar sentencing culture, accepting that “culture”, when used in this sense, can be something of a contested concept. Canada, like Ireland, remains committed to an essentially discretionary sentencing system or, more precisely, a system of principled discretion. Further, both countries, by international standards and certainly when compared with the United States, can fairly be said to adhere to a moderate penalty system. One point of difference is that Canada has a much higher number of minimum sentences than we do, though many of them are quite short and the Canadian Supreme Court has been willing to strike down some of them on constitutional grounds.

Major Canadian Supreme Court sentencing judgments from the fairly recent past include R v Nasogaluak [2010] 1 S.C.R. 206 (serious police misconduct at the time of arrest a mitigating factor at sentencing); R v Lacasse [2015] 3 S.C.R. 1089 (circumstances in which an appeal court should interfere with sentence, and consideration of local prevalence of offence); R v Nur [2015] 1 S.C.R. 773 (striking down a mandatory minimum sentence for firearms offences); R v Suter [2018] 2 S.C.R. 496 (punishment beating of defendant and mistake of law as mitigating factors). Now, in R v Friesen 2020 SCC 9 (April 2, 2020), the Court has dealt at great length with the sentencing of child sexual abuse offences.

Background

Friesen (F.) met a woman (we shall call her Ms A) through a dating website. One evening in 2016, they went back to her home which she shared with her four-year-old daughter (B) and her one-year-old son. There they had consensual sexual intercourse after which F told Ms A to bring B into the bedroom so that they could engage in sexual acts with her. This was done although Ms A audio recorded the conversation on her mobile phone. B was understandably terrified at the sexual acts to which she subjected by F and started to scream. Fortunately, a friend of Ms A’s who was babysitting was also staying in the house and, on hearing B’s screams, she came and rescued B from the room. F wanted Ms A to bring B back to the room and threatened her that, unless she did so, he would tell her friend, the babysitter, that Ms A had sexually abused her one-year-old son. This formed the basis of a separate extortion charge to which F pleaded guilty. He also pleaded guilty to sexual interference with a child and it is the sentence for the latter offence that is the subject of the Supreme Court judgment. In the Provincial Court of Manitoba the trial judge imposed a sentence of six years’ imprisonment for the sexual interference offence and a concurrent six-year sentence for the attempted extortion. The Manitoba Court of Appeal reduced these sentences to four-and-a-half years and 18 months respectively, to run concurrently. Following a prosecution appeal, the Canadian Supreme Court restored the six-year sentence imposed by the trial judge for the sex offence.

The judgment

The joint judgment was delivered by Wagner C.J. and Rowe J. with the remaining seven judges concurring. Effectively, therefore, it was the unanimous judgment of a nine-judge court and, as such, holds considerable authority. Moreover, it is a lengthy and detailed judgment running to 183 paragraphs and over 100 pages of typescript. Most of it is devoted to a close analysis of the nature of child sexual abuse, the harm it causes and the principles according to which it should be sentenced. The Court did not establish any general sentencing guidelines in the form of starting points or ranges. It usually prefers to leave that to the provincial appeal courts, rather than lay down guidelines itself. As might be expected from the length of the judgment, there is a great deal in it and what follows provides nothing more than a brief and incomplete summary.

Starting points

In Canada, criminal law may be created only by the federal parliament, and most criminal offences are contained in the Criminal Code. However, the criminal law is administered in the individual provinces each of which has its own court system. Over the years, several provincial appeal courts have delivered judgments indicating appropriate starting points for the sentencing of particular offences. Under this system, an appeal court identifies the appropriate sentence for a typical case; this is a starting point to which adjustments may be made in light of the particular circumstances of actual cases. The practice may be traced back to R v Sandercock 1985 ABCA 218 (CanLII), a judgment of the Alberta Court of Appeal dealing with sexual assault. There the Court said:

“The sentencing process now adopted by this Court is to state typical categories with precision, and to acknowledge at the same time that each actual case presents differences from the archetypical case. These differences might mitigate or aggravate. Nevertheless, the idea of a typical case affords a starting point for sentencing because one can state a precise sentence for that precise category. An actual sentence in a real case will vary upwards or downwards from that depending upon the balance of the factors presented in the actual case.”

In Sandercock itself which, it must be recalled, was decided 35 years ago, the Court identified three years’ imprisonment as the starting point for major sexual assault. The staring point approach has strong supporters as well as fierce critics, the latter variously claiming that it interferes with judicial discretion and that it creates artificial categories of offences in a way that Parliament did not intend. However, the approach was strongly reaffirmed by the Alberta Court of Appeal in R v Arcand 2010 ABCA 363 (CanLII). Some provincial appeal courts have identified sentence ranges rather than starting points. That, of course, is the approach favoured here in Ireland in the line of appeal court judgments from People (DPP) v Ryan [2014] 2 ILRM 98 onwards. The Canadian Supreme Court has so far tolerated starting point approaches except that it has firmly held, in a series of cases starting with R v McDonnell [1997] 1 S.C.R. 948, that failure on the part of a trial judge to place a particular offence within a judicially created category could never, of itself, amount to an error that would justify an appeal court interfering with the sentence which might still be “fit” in the circumstances.

The reason I mention all of this in the present context is that in Friesen some interveners, notably the Legal Aid Society of Alberta and the Criminal Trial Lawyers Association, seem to have launched an all-out attack on the starting point system. Having noted this, the Supreme Court said ([41]): “While we have determined that this case does not provide an appropriate opportunity to assess the merits of these concerns, they raise an issue of importance that should be resolved in an appropriate case.” This might be seen as a rather ominous statement, especially in light of the policy of deference on which the Supreme Court has strongly and repeatedly insisted over many years. A trial judge’s sentencing decision should be respected by an appeal court unless the sentence is demonstrably unfit or is based on an error of principle (which may include an error of law) that has had an impact on the sentence. A “harmless error”, to use an American expression, will not justify appellate intervention. This was stressed in R v Lacasse [2015] 3 S.C.R. 1089 and again, in Friesen. In truth, Irish and Canadian law are largely the same in this respect, save that we don’t use the language of deference quite as much. We must therefore wait and see what the present Canadian Supreme Court has to say about starting point sentencing when the matter eventually comes up for consideration, and that may happen before too long. However, the Court will probably (or should) be alert to the possibility that if it condemns the whole idea of starting point sentencing, Parliament may respond by introducing formal guidelines that would place even more constraints on judicial discretion although, to complicate matters further, those too might be subject to constitutional challenge. Meanwhile, as noted below, the Court in Friesen expressly disapproved of the content of some provincial sentencing guidelines for child sexual abuse.

For anyone wanting to read up on Canadian criminal law and sentencing, Kent Roach’s Criminal Law, 7th ed. (Irwin Law, 2018) is fairly concise (about 600 pages) but tremendously good. On sentencing, there is a great casebook which is quite up to date: Manson, Healy, Trotter, Roberts and Ives, Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary 3rd ed. (Emond Montgomery Publications, Toronto, 2016). Allan Manson’s The Law of Sentencing (Irwin Law, 2001) may be almost 20 years old but it has deservedly become something of a classic for its critical and perceptive discussion of general sentencing principles. It is often cited by the Supreme Court (as indeed it was in Friesen). On starting point sentencing (and for a strong defence thereof), see Paul Moreau, “In defence of starting point sentencing” (2016) 63 Criminal Law Quarterly 345.

Sentencing child sexual abuse

The offence to which F. pleaded guilty was sexual interference with a child which, under s. 151 of the Criminal Code, carries a maximum sentence of 14 years’ imprisonment following conviction on indictment. However, the Supreme Court made clear that its general observations were equally applicable to related offences such as invitation to sexual touching, incest, sexual assault, child luring and sexual exploitation. (Incidentally, our offence of invitation to sexual touching under s. 4 of the Criminal Law (Sexual Offences) Act 2017 seems to be based directly on s. 152 of the Canadian Criminal Code).

In Friesen, the Supreme Court begins with a lengthy account of the harm caused by child sexual abuse, including forms of abuse that are facilitated by new technologies ([46]-[74]). It recognises that females are much more likely to be victims of such abuse but also acknowledges that it may have a particularly detrimental impact on children of indigenous communities, children in care, children with disabilities and LGBT2Q+ youth. Child sexual abuse can have a ripple effect by damaging children in their social relationships and by destroying the trust of parents and caregivers in family, friends and social institutions. The Court also placed some emphasis on the inherent wrongfulness of child sexual abuse as a violation of the child’s right to bodily integrity which, as it had previously said in R v Ewanchuk [1999] 1 S.C.R. 330, “lies at the core of human dignity and autonomy.” When assessing harm in cases where the victims are still children, sentencing courts should consider not only the immediate or observable harm but also the reasonably foreseeable potential harm that victims may experience well into adulthood. In this connection also the Court stressed the importance of taking account of any increases in maximum sentences introduced by legislation.

The Court did, of course, acknowledge that an offender’s culpability must also be considered and it accepted, in particular, that a mental disability imposing serious cognitive constraints is a mitigating factor. At the same time, it expressly approved Parliament’s decision, as expressed in the Criminal Code, to prioritise denunciation and deterrence in sentencing child sexual abuse offences.

The Court expressed serious concern about the content of guidelines, in the form of sentence ranges or starting points, adopted by some provincial appeal courts, which provide that the upper limit may be exceeded only in exceptional circumstances. It said ([112]) that it is “inappropriate to artificially constrain sentencing judges’ ability to impose a proportionate sentence in this manner.” It went even further, at [117], by directing provincial appellate courts to revise and rationalise sentence ranges and starting points where they treat sexual violence against children and sexual violence against adults similarly. Sexual violence against children is generally more serious. This may be a foretaste of what is to come when the Court gets an opportunity to deal more fully and directly with the legitimacy of sentence starting points and ranges.

Having said all of this, the Court then set out the following “significant factors” that should determine a fit sentence for a child sexual abuse offence:

(a) likelihood of reoffending;

(b) abuse of a position of trust or authority;

(c) duration and frequency of offending (“Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize” ([133]).

(d) the age of the victim

(e) the degree of physical interference. However, in this regard, the Court cautioned against attributing too much significance to the form which the abuse took, and in particular against assuming that non-penetrative sexual acts merit less punishment. Courts “should not assume that there is any clear correlation between the type of physical act and the harm to the victim” ([142]). All kinds of physical acts can cause emotional and psychological harm to child victims. Still, increases in the degree of physical interference increases the wrongfulness of the sexual violence ([145]).

(f) “victim participation.” The Court went to great pains to stress that it is an error of law to treat “de facto” consent as a mitigating factor. It said: “Adults, not children, are responsible for preventing sexual activity between children and adults.” Granted, the Court was here assuming that the offence involved abuse of a child by an adult, and in Canada the age of consent is 16 years. Although it did not say so, it may have accepted that consent could be a relevant factor when dealing with sexual activity between young persons of the same age, assuming of course, that there was actual consent.

Finally, the Court said that co-ordinated sexual assault, meaning an assault which, as in this case, involved a number of participants, was all the more serious for that reason.

Outcome

The Supreme Court found that it was the Manitoba Court of Appeal that fell into error and not the trial judge. In fact, it didn’t have a good word to say about the Court of Appeal judgment, but it expressed strong support for the trial judge’s approach to the case. As noted, it restored the sentence he had imposed . In this respect, the judgment is reminiscent of the majority judgment in R v Lacasse [2015] 3 S.C.R. 1089 which was strongly critical of the Quebec Court of Appeal on that occasion. However, it must be said that the dissenting judgment in Lacasse was far more convincing on the circumstances in which and the conditions under which a court should take the local prevalence of an offence into account at sentencing.

Comment

Child sexual abuse is, unfortunately, a universal phenomenon. although it is only in fairly recent times that it has begun to be prosecuted with any degree of frequency. All actors within the criminal justice system, including the courts, have had to embark on a fairly steep learning curve in order to appreciate its prevalence, the circumstances in which it occurs and, above all else, the harm (both short-term and long-term) it causes to victims. The judgment in Friesen will doubtless be of great value to courts and sentencing bodies elsewhere in devising principles and guidelines for sentencing child sexual abuse.

Parts of the Friesen judgment might make one reflect on the production of knowledge, if that does not sound a bit too “Foucault.” For example, in setting out the harm caused by child sexual abuse, the Court relied mainly on dicta from earlier judgments of its own or of other courts. For instance at [57], the Court says:

“A number of this Court’s decisions provide insight into these forms of harm. In R v L. (D.O.) [1993] 4 S.C.R. 419, L’Heureux-Dube J. emphasised the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-442). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of “the violence of the child victim’s integrity and sense of self-worth and control over her body” that the child victim experienced as a result of being sexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be “shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that… people could and would abuse her and her body” (para. 113).”

Nobody would question the validity of what is said in that passage. And L’Heureux-Dube J. and McLachlin C.J. (as she later became) are both very fine jurists indeed. But the question is whether purely judicial decisions and dicta are the best source of authority for matters that are essentially empirical in nature. (Admittedly, L’Heureux-Dube J. did refer to some reports in the judgment that is cited in Friesen). One might contrast this approach with that of the majority of the United States Supreme Court in the line of cases beginning with Roper v Simmons 543 U.S. 551 (2005) on the reduced culpability of child offenders. There, extensive use was made of social science (and especially psychological) research. The Court was, to be sure, criticised by some for the particular research on which it drew (see Deborah W. Denno, “The scientific shortcomings of Roper v Simmons (2006) 3 Ohio St. Crim. L.J. 379), but I would still suggest that the American court was right to make use of such research rather than rely solely on judicial precedents.

Adams succeeds in UK Supreme Court on Carltona point.

R v Adams [2020] UKSC 19 will be of interest to administrative lawyers here and in neighbouring jurisdictions as a rare case where the Carltona doctrine was held not to apply to an order made by a civil servant (or, in this instance, a minister of state) on behalf of a government minister. The doctrine takes it name from Carltona Ltd v Commissioners of Works [1943] 2 All E.R. 560, a decision of the English Court of Appeal during the Second World War. It involved a challenge to the seizure of a factory, an action which the Commissioners (in effect the Minister of Works and Planning) were permitted to take. However, the decision in that case was taken by a senior civil servant within the Minister’s department. The Court of Appeal (per Lord Greeene MR), in a now famous passage, held that this was quite in order because the “duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case.”

Carltona has been enthusiastically adopted in Ireland, and applied in many cases especially in the area of immigration and asylum law. A trilogy of Supreme Court decisions – Tang v Minister for Justice [1996] 2 ILRM 46, Devanney v Shields [1998] 1 I.R. 230 and WAT v Minister of Justice [2015] 2 ILRM 225 – secured its position as a “common law constitutional principle” (as it was described in Devanney, quoting from an English case). Here, as in England and Wales, it is “capable of being negatived or confined by express statutory provision to the contrary, or by necessary implication” (WAT). The underlying theory is that a minister, as a corporation sole, consists in effect of the department of which he or she has charge. Ministers remain responsible to Parliament for all decisions taken in their names and, for that reason, they are likely to ensure that important decisions are taken by officials of an appropriate level of seniority and experience. Statutes routinely provide that certain decisions must be taken by “the Minister”, but in many instances the sheer volume of those decisions renders it impossible for the minister to make all of them personally. WAT, for example, concerned s. 3 of the Immigration Act 1999 which provided that, subject to non-refoulment, the Minister for Justice and Equality could order the deportation of a non-national from the State. The order in WAT was signed by a senior civil servant, but the Supreme Court found this acceptable because Carltona applied. It noted that in 2011, the year in which the order was made, a total of 1,334 deportation decisions were made. Civil servants in these circumstances are exercising devolved as opposed to delegated functions, as the Supreme Court has held on a few occasions.

Back in 1973, Gerry Adams was interned in Northern Ireland on foot of an interim custody order (ICO) signed by a Minister of State in the Northern Ireland Office. He tried to escape on two occasions. Having been convicted in respect of each attempt, he was sentenced in 1975 to a total of four-and-a-half years’ imprisonment. This case involved a belated challenge to these convictions which he undertook after certain information became available under the “30-year rule” (relating to the public release of government documents). The legislation under which Mr Adams was interned provided that “where it appears to the Secretary of State” that a person was suspected of being involved in terrorism, an ICO could be made. Once made, it could be signed by a Secretary of State, a Minister of State or an Under Secretary of State. In this instance, there was no evidence that the Secretary of State had personally considered if Mr Adams was suspected of being involved in terrorism. At the time, the Secretary of State was Willie Whitelaw who apparently did not take these decisions himself although his successor, Merlyn Rees, apparently did. In 1974, a counsel’s opinion to the Attorney General had indicated that a court would probably hold that it was a condition precedent to the making of a valid ICO that the Secretary of State had considered the matter personally. This opinion became available under the 30-year rule and it happened to be authored by Brian Hutton QC who later became Lord Chief Justice of Northern Ireland and, after that again, a Law Lord (from 1997 to 2004).

Almost half a century later, Mr Hutton (as he then was) was proved right when the UK Supreme Court held that the ICO was invalid, as it had not been made by the Secretary of State. Consequently, Mr Adams, having been unlawfully interned, was wrongly convicted of attempting to escape, and his convictions for those offences were quashed. The judgment, which is remarkably concise, was delivered on 13 May 2020 by Lord Kerr with whom the other four members of the Court agreed. The Supreme Court was unwilling to accept that there is any general presumption that Carltona applies to ministerial decisions absent a clear indication to the contrary. Instead, regard must be had to three factors: the framework of the legislation, the language of the relevant provisions and the importance of the subject matter. It then proceeded to examine the provisions of the Northern Ireland internment legislation (which was in the form of an Order) in this light. Crucial to its decision was the wording of two successive sub-articles in the Order, the first providing that the Secretary of State could make an ICO where it appeared to him that a person was suspected of being involved in terrorism. The second provided: “An interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State.” This, according to the Court, involved a “distinct segregation of roles” (between the making and signing of an ICO). Further, it was clear that the ICO to be signed was that of the Secretary of State. The Court concluded: “If a minister of state made the ICO and then signed it, could he be said to sign the order of the Secretary of State? Surely not.” The Court felt fortified in its conclusion by two additional factors (which have also arisen on other Carltona-type cases). First, it noted the seriousness of the matter at stake. The legislation in question gave the Secretary of State the task of deciding if an individual should be left at liberty or committed to custody, perhaps indefinitely. Secondly, there was no reason to believe that requiring the Secretary of State to make each decision personally would impose an impossible burden upon him.

One cannot help wondering if Devanney v Shields [1998] 1 I.R. 230 might have been decided differently if the Irish Supreme Court had adopted the same approach as its UK counterpart in Adams. Devanney involved a challenge to the legality of the appointment and assignment of a District Court clerk. Such appointments were then governed by s. 46(2) of the Court Officers Act 1926 which provided:

“Subject to the provisions of this section, every district court clerk shall be appointed by the Minister and shall (unless he is a pensionable officer) hold office at the will of and may be removed by the Minister.”

District Court clerks are now appointed by the Courts Service. It was accepted that the District Court clerk in this case had not been appointed by the Minister personally ([1998] 1 I.R. 230 at 252). The documents appointing her and assigning her to specified District Court areas had been signed by civil servants who stated that they were authorised in that behalf by the Minister. In the High Court, McCracken J. held that Carltona did not apply in this case. He said that it was perfectly practical for the Minister to make such a decision personally, given the small number of appointments involved and their considerable importance to the administration of justice. He accepted that preliminary procedures relating, for example, to the interviewing of applicants could be left to others. McCracken J. further said:

I am also influenced by the fact that District Court clerks are not only appointed by the Minister, but hold office at the will of and may be removed by the Minister. If the [State] respondents’ argument is correct, the [District Court clerk] could be removed by the same persons who appointed her, again without any input from or knowledge of the Minister.”

He therefore granted a declaration to the effect that the District Court clerk was not validly appointed by the Minister. It should be stressed that there was never any question raised about the competence or qualifications of the District Court clerk in question who was already an experienced civil servant. The challenge related solely to the appointment procedure.

The Supreme Court disagreed with McCracken J. and allowed the State’s appeal. Hamilton C.J. delivered the main judgment, with concurring judgments from Denham and Keane JJ. Both Hamilton C.J. and Denham J. stressed Carltona’s status as a common law constitutional principle. The Court was satisfied that the doctrine applied here and that the appointment of the District Court clerk was therefore entirely valid. As to the importance of the matter at stake, Hamilton C.J. said that it was no more important than decisions allocated to the Minister for Justice under the Aliens Act 1935 (the issue in Tang where Carltona had also been held to apply).

What is missing from the Supreme Court judgment in Devanney is a close textual analysis of s. 46 of the 1926 Act, especially in light of the question raised by McCracken J. as to whether a civil servant, if authorised to appoint a person as District Court clerk, could also remove that person. The Supreme Court failed to grapple with this question or, indeed, to address it at all. If the UK Supreme Court judgment in Adams is adopted here with the same alacrity as Carltona, it may prompt closer attention to the three interpretive factors outlined in Adams, especially the framework of the legislation and the precise language of the relevant provisions.

Returning finally to Adams itself, the judgment, as noted, was delivered by Lord Kerr who, like Lord Hutton, had once been Lord Chief Justice of Northern Ireland. Lord Kerr is due to retire in a few months time, and this is to be regretted. He never hesitated to strike out in a new direction when he saw the need to do so. For instance, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10 (which dealt with providing assistance to the United States to facilitate the prosecution of a person for crimes some of which were punishable with the death penalty), he said that “a common law principle should now be recognised that it is unlawful to facilitate the provision of material to be used in the trial of a person in a foreign country where there is a risk that, as a result of those proceedings, that person would be at risk of execution.” He failed to secure the backing of a majority of the Court on that point. But the entire Court agreed that, under data protection legislation, it was unlawful for the Secretary of State to have provided the assistance in question (which involved personal information) to foreign law enforcement authorities for use in capital proceedings.

Severe sentence for defrauding nursing home residents

The safeguarding of vulnerable adults, especially those living in congregated settings or care homes, has become a matter of renewed concern during the present pandemic, and rightly so because of the tragically high number of Covid-19 related deaths in nursing homes. Protecting the lives and attending to the medical needs of such persons must remain the top priority, but we should not lose sight of their vulnerability to financial exploitation. If proof be needed of the existence of such exploitation (and I am not suggesting it is widespread), one need only read the judgment of the English Court of Appeal (Criminal Division) in R v Barton and Booth [2020] EWCA Crim 575. This was an eagerly awaited judgment from a five-judge court (a rare event), presided over by the Lord Chief Justice. The main legal issue in the case concerned the meaning of dishonesty which is a key definitional element of theft and other offences. In Ivey v Genting Casinos [2017] UKSC 67, [2018] A.C. 391, a civil case, the UK Supreme Court had held obiter that the two-part test of dishonesty established in R v Ghosh [1982] Q.B. 1053 should be replaced with a primarily objective test. A question then arose as to whether this should henceforth be adopted as the test of dishonesty in the criminal law of England and Wales. The Court of Appeal in Barton held that it should be (and there will be a future post on that). However, the sentences imposed and substituted in Barton are also of considerable interest.

Mr Barton and his wife ran a high-class nursing home in Stockport. It was, by all accounts, quite a luxurious establishment attracting wealthy clients who were generally well treated while they lived there. However, some of them were subject to serious financial exploitation. As the Court of Appeal summarised the matter at the outset of its judgment ([4]):

“The prosecution case against David Barton was that, over many years, he had dishonestly targeted, befriended and “groomed” wealthy and vulnerable (and childless) elderly residents of the home, in order to profit from them. He manipulated them and isolated them from their family, friends and advisors. A number of these residents made him the residuary beneficiary of their wills, usually within a short time of arriving at Barton Park. They also allowed him to assume control of their finances, by making him next of kin, or granting him power of attorney, or by making him executor, and he used this control to enrich himself. “

However, the nature and scale of the exploitation can be appreciated only by reading the early part of the judgment itself. Barton was eventually convicted of 10 offences (4 of conspiracy to defraud and 6 of theft and related offences) involving 6 different elderly residents. He was aided by others including Ms Booth, the general manager, who was convicted of three offences and sentenced to 6 years’ imprisonment, and a solicitor, Mr Mills, who was due to be tried along with them, but he died before the trial. The offending spanned a 20-year period and the amount obtained by Mr Barton from the offences of which he was convicted was approximately £4.13 million. He attempted to obtain another £10 million or so.

The following episodes provide just a flavour of Mr Barton’s conduct. He was, as might be imagined, a rich man who owned or co-owned 23 properties in the Southport area as well as 4 Ferraris, 3 Rolls Royces, 2 high-value Mercedes and other cars. One day in March 1999, he sold a Rolls Royce for £500,000 (4 times its value) to one resident, Mrs A-S who was then 85, and another for the same price to another resident, Mrs P who was then 88 and had no known relatives. He had bought the latter car in 1996 for £140,000.

Mrs A-S entered the nursing home in 1997 when she was aged 83 years. A few months later, she granted Mr Barton power of attorney over her affairs and shortly after that she made him the main beneficiary of her will. Mr Mills, the solicitor, looked after the will and about this time received a sum of £50,000 from Mr Barton. The prosecution alleged that this was a reward for his part in the conspiracy.

Mr Barton might never have been caught had he not gone a bridge too far. Mr and Ms W entered the nursing home in 2011. Mr W was then 81 and had advanced dementia, while Mrs W was 75. They were obviously very rich, and Mr Barton persuaded Mrs W to enter into a lifetime agreement whereby she would pay him £6 million in return for her husband and herself being allowed to remain in the nursing home for the rest of their lives. This would include the provision of a luxury apartment for them and the construction of a showroom for Mr W’s collection of classic cars of which he was very proud. As it happens, the written agreement was never entered into because Mrs W died suddenly in May 2013. However, while she was in the home, Mr Barton (it was alleged) had alienated her from family, friends and longstanding financial advisor. He had involved her in various property transactions, and significantly for his own benefit. During the time before her death, Mrs W and her husband were induced to pay fees of more than £1 million to the company running home which was approximately £900, 000 in excess of the legitimate fees. As soon as Mrs W died, Mr Barton issued proceedings against her estate claiming specific performance of the aforementioned lifetime agreement or, in the alternative, a sum of almost £10 million for services rendered. As the Court of Appeal observed, the most egregious element of the latter claim was a sum of £7.2 million (including VAT) for taking Mr W out for drives in classic cars. Mr Barton claimed there had been an understanding that there would a payment of £25,000 for each day on which these drives, which were said to be a means of managing Mr W’s condition, took place. (It was accepted that Mr and Mrs W were well cared for at the nursing home by Mr Barton and his staff).The claim against Mrs W’s estate was eventually settled for £139,000. Once members of Mrs W’s family learned of the civil claim brought by Mr Barton against her estate, they contacted the police and rest, as they say, is history.

At the time of sentence, Mr Barton was aged 64 and of previous good character. The trial judge sentenced him to 21 years’ imprisonment through a mixture of concurrent and consecutive sentences. It was accepted all round that the judge had correctly applied the relevant guidelines in determining sentences for the individual offences but it was submitted by the appellant that the judge erred in applying the totality principle, with the result that the overall sentence was excessive. The Court of Appeal, while dismissing the appeals against conviction, agreed, and reduced the overall sentence to 17 years. Under English law, half of this will be served in custody.

The case and its outcome call for a few comments.

First, the sentence was a very heavy one for a fraud, or even a series of frauds as in this instance. One can think of many cases here and elsewhere involving larger sums where the headline sentences were considerably lower. However, the amount involved is only one factor. The manner in which the property was misappropriated, the circumstances of the victims and the impact on the victims can be just as important as the amount (and sometimes more so) when deciding on sentence. The fact that the victim is a large corporation rather than an individual may sometimes be treated as a mitigating factor, as our Court of Appeal recognised in People (DPP) v Zaffer [2016] IECA 321. A key factor in Barton was the vulnerability of the victims. The Sentencing Council’s definitive guidelines for both theft and conspiracy to defraud list “deliberately targeting a victim on the basis of vulnerability” as a factor that places an offence at the highest level of culpability. (Harm must, of course, be considered as well before identifying the appropriate sentence range). In England and Wales, the maximum sentence for theft is 7 years’ imprisonment and the maximum for conspiracy to defraud 10 years. The Court of Appeal in Barton (at [160]) said:

“This was an exceptional case involving a high level of exploitative criminality that was targeted at vulnerable elderly individuals, and it undoubtedly merited a long overall sentence of imprisonment.”

Secondly, there was no question of any of the victims in Barton lacking capacity. (Mr W. admittedly had advanced dementia but the relevant transactions seem to have been conducted with his wife). On the face of it , all the residents involved had freely entered into the transactions that formed the basis of the charges, as the Court of Appeal accepted (at [7]). It was further accepted that none of the victims was subject to any physical abuse or neglect. The trial judge was careful to instruct the jury that they should acquit on any or all of the conspiracy to defraud charges if they decided that it was or may have been the case that the transactions were “actions taken by residents who were fully in control of their decision-making and understood what they were doing, and made proper decisions” (Court of Appeal judgment at [134]). However, it was the prosecution case that Mr Barton knew that the residents were vulnerable and that he exploited that vulnerability to persuade them to transfer money and gifts to himself and his company ([131]). The judge had therefore instructed the jury:

“Just because a person has capacity to make their own decisions, this does not mean that they could never be vulnerable to dishonest influence to make decisions that adversely affect them – and it would not necessarily be a defence to a charge of conspiracy to defraud, to say that the person (or persons) who were targeted had capacity to make their own decisions.”

This passage in the judge’s charge was not criticised. It is therefore significant that, for the purpose of conspiracy to defraud at least, vulnerability (in the sense of being amenable to undue influence), as opposed to incapacity, will suffice. The few statutory definitions of vulnerability in Ireland all seem to emphasise disability. For instance, the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (s. 1) defines vulnerability in terms of a mental, intellectual or physical disability that severely restricts a person’s capacity to guard him/herself against certain forms of serious exploitation or abuse. However, in other circumstances, a broader definition might be adopted.

Thirdly, this is clearly the kind of case where prevention is better than cure. Convicting and punishing an offender may be of little or no benefit to the victim if the proceeds of the fraud have been squandered. There is probably no fail-safe method of prevention. Bear in mind that the conduct in Barton might never have come to light if Mrs W’s relatives had not decided to contact the police. Others might not have done so. Further, there can sometimes be a tension between autonomy and privacy on the one hand, and protection on the other. Being resident in a nursing home or, for that matter, being looked after in one’s own home does not automatically imply an inability or lack of capacity to make entirely rational choices, especially in relation to money and property. History is littered with examples of elderly people making strange, sometimes rather cruel, but still rational decisions when it came to gifting or bequeathing their property to others. We do not therefore want a situation in which financial decisions of elderly persons are constantly being policed, monitored or questioned. But protection is important also, and the challenge is to find an appropriate balance between the two. Perhaps there is some inspiration to be drawn from money laundering legislation where certain designated persons, including financial institutions and professional legal advisors, are required to look out for suspicious transactions and, where necessary, make a report to some authority such as the State Financial Intelligence Unit (FIU) in the case of money laundering.

A very fine study conducted by Amanda Phelan, Deirdre O’Donnell and Sandra McCarthy of UCD, entitled Experience of Bank Staff of the Financial Abuse of Vulnerable Adults, and published in 2018 under the aegis of the Banking & Payments Federation Ireland and the National Centre for the Protection of Older People, addresses some of these issues very perceptively.

Meanwhile the Law Reform Commission has recently published an Issues Paper entitled A Regulatory Framework for Adult Safeguarding to which responses and submissions are welcome any time up to the end of May 2020.

Can jury trial be waived?

It has recently been reported that the Bar Council of Ireland has been considering whether ordinary crimes might be tried in non-jury courts in light of the restrictions imposed because of Covid-19 (see Colm Keena, “Bar Council looking into idea of ordinary crimes being tried in non-jury courts”, Irish Times, 6 May 2020). As reflected in the reference to “ordinary crimes”, many serious crimes can already be tried in the Special Criminal Court (a non-jury court) but, according to Article 38.3 of the Constitution, special courts may be established by law only for “the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.” The all-important constitutional provision for present purposes is Article 38.5 which states:

“Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.”

In effect, this means that no person may be tried without a jury unless the offence is a minor one triable in the District Court, or it is being tried in the Special Criminal Court or it is a military offence being tried by a military tribunal.

Might Article 38.5 be interpreted as to allow persons accused of “ordinary” serious offences to waive jury trial in favour of trial by judge alone or, perhaps, a bench of judges as in the Special Criminal Court? I recall doing some research on this topic when writing The Criminal Process (2009) more than a decade ago, and the matter is dealt with at pp. 844-847. Obviously, it never occurred to me then that we would ever experience the conditions in which we are living today. The essential question is whether jury trial under Article 38.5 is to be interpreted as an imperative or a right, If it is a right, it can probably be waived; if it is an imperative it probably cannot.

The constitutions of some other common-law jurisdictions provide for jury trial, but they do so in different ways. The federal Constitution of Australia (s. 80), for example, provides:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury…”

The Canadian Charter of Rights and Freedoms (s. 11) provides:

“Any person charged with an offence has the right…. except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.”

Jury trial is doubly protected by the United States Constitution. Article III (2)(2) provides:

“The trial of all Crimes, except in Cases of Impeachment, shall be by Jury…..”

Then the Sixth Amendment provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been permitted.”

Clearly, therefore, some constitutions declare jury trial to be a right whereas others seem to treat it as an imperative. The United States Constitution might be said to do both. Our Constitution, as noted, provides that, apart from the three exceptions mentioned, “no person shall be tried on any criminal charge without a jury.” This is very close to the Australian formulation stating that the trial on indictment of any Commonwealth offence “shall be by jury..” In R v Brown (1985-86) 160 C.L.R. 171, a majority of the High Court of Australia held that s. 80 of the Constitution did not permit waiver. Brennan J., one of the majority, wrote:

“Trial by jury is not only the historical mode of trial for criminal cases prosecuted on indictment, it is the chief guardian of liberty under the law and the community’s guarantee of sound administration of criminal justice…. Section 80 of the Constitution entrenches the jury as an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence. That section is not concerned with a mere matter of procedure but with the constitution or organisation of any court exercising that jurisdiction.”

Another member of the majority, Deane J., had earlier written in R v Kingswell (1985) 159 C.L.R. 264 at 298-302, which dealt with a slightly different matter:

“The guarantee of section 80 of the Constitution was not a mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases.”

In the United States, on the other hand, jury waiver is recognised at both state and federal levels. See, for example, Patton v United States 281 U.S. 276 (1930) and Singer v United States 380 U.S. 24 (1965). But, there, as already noted, the Sixth Amendment (whatever about Article III) describes jury trial as a right.

Not having had occasion to look into the matter for some years, I cannot say for certain if there are any indications in recent judgments of our own superior courts as to whether Article 38.5 should be treated as a conferring a right or establishing an imperative. I cannot recall any such authority off-hand, but readers will correct me if I am wrong about that. There are, however, some interesting dicta in People v O’Shea [1982] I.R. 384 where the question was whether the Constitution permitted a prosecution appeal against an acquittal in the Central Criminal Court. Walsh J. said (p. 418):

“Jury trial in criminal cases, which is made mandatory by the Constitution save in the exceptions provided for. is a most valuable safeguard for the liberties of the citizen.”

Henchy J. (dissenting), on the other hand, said (p. 431):

“[Article 38.1] means, in effect, that every person charged with a major (or non-minor) offence is entitled as of constitutional right – unless the case falls into one of the excepted classes – to a trial with a jury.”

However, it would probably be unwise to read too much into either statement, partly because jury waiver did not arise in that case and partly because neither statement is necessarily absolute. Walsh J. described jury trial as mandatory but also as a most valuable safeguard of civil liberties. Henchy J., while emphasising jury trial as a right, might, if the matter fell to decided, find it to be an imperative as well.

Suffice it to say that one cannot be at all confident that jury trial under the Constitution of Ireland is a right that can be waived (and the waiver of any right must always, of course, be informed and voluntary). If the restrictions necessary because of Covid-19 must be retained for some time to come, and to the extent that jury trials cannot safely he held, the legality and constitutionality of jury waiver may become a real issue. Lawyers are also right to express the concern that if criminal trials have to be delayed for substantial periods, defendants may seek to have them restrained altogether on the basis that they have been denied their constitutional right to trial with reasonable expedition. It would certainly be unwise to proceed with non-jury trials for ordinary serious offences without authorising legislation. Otherwise, persons convicted following such trials might later challenge their constitutionality and so do successfully. That state of affairs would be in nobody’s interests. If needs be, legislation might be enacted permitting non-jury trials for ordinary serious offences for a very limited period and in light of the current crisis, but on the tacit understanding that the Bill would be referred to the Supreme Court by the President under Article 26 of the Constitution for a determination as to whether it was repugnant to the Constitution. The Supreme Court would doubtless be prepared to hear and determine the case as a matter of priority, probably in a much shorter time frame than the 60 days permitted by the Constitution. Of course, before any of that can happen, we need a Government and a Seanad!

Meeting a child for purpose of sexual exploitation: problems of definition and punishment

Under s.7 of the Criminal Law (Sexual Offences) Act 2017, it is an offence intentionally to meet a child, having communicated by any means with that child on at least one previous occasion, for the purpose of doing anything that would constitute sexual exploitation of the child. The definition is wider than that; the offence may also be committed by travelling with the intention of meeting a child or making arrangements with the intention of meeting a child or for a child to travel. This offence had a predecessor in the Child Trafficking and Pornography Act 1998 (s. 3(2A), now repealed). The offence as there defined required that the defendant should have met or communicated with the child on at least two previous occasions. Other countries have similar provisions outlawing the same kind of conduct, commonly known as grooming.

A few aspects of s. 7 of the 2017 Act are worthy of note. A child for this purpose is a person under the age of 17 years. The offence may be committed by “a person” who could be of any age, including a child who had reached the age (currently 12 years) at which he or she is liable to criminal prosecution. Under the equivalent provision in the English Sexual Offences Act 2003 (s. 15), the offence may be committed only by a person aged 18 years or over. Further, s. 7 contains no defence of mistake, reasonable or otherwise, as to the age of the person being communicated with. The equivalent English, Scottish, Canadian and New Zealand statutes all make express provision for reasonable mistake as to age, with the Canadian and New Zealand law requiring the defendant to have taken reasonable steps to ascertain the other person’s age. Under Irish law a person does not commit an offence unless he “intentionally meets, or travels with the intention of meeting a child.” This might be taken to imply that the defendant must have believed he was meeting or communicating with a person under the age of 17 years, although the English legislation uses substantially the same terms while still providing for a reasonable mistake as to age. The Irish law would be put to the test if a defendant could show that he genuinely and reasonably believed that he was communicating with an 18-year-old who turned out to be a 16-year-old.

But what should happen in a sting operation where the defendant is lured into believing that he (and the defendant will almost invariably be male) is communicating with a child when in fact he is communicating with a police officer or a member of a self-appointed vigilante group? As s. 7 of the 2017 Act is now phrased, it seems to apply solely to a situation where the defendant meets, etc with a person who is actually a child. The same holds true of s. 15 of the English Sexual Offences Act 2003 but the authors of leading English texts, including Smith, Hogan and Ormerod’s Criminal Law (15th ed.), p. 812 and Rook and Ward, Sexual Offences (5th ed), p. 423 (referring to R v Shivpuri [1987] A.C. 1 where it was held that a person may be convicted of attempt even if, on the true facts, the commission of the full offence is impossible) believe that the defendant in a case arising from a sting operation could be convicted of attempt. The same view seems to prevail here in Ireland.

However, s. 7 of the 2017 Act should be reviewed with the foregoing matters in mind. It could very easily be amended to cater for the sting-type situation, as equivalent provisions elsewhere already do. The Canadian Criminal Code (s. 172.2(1)) provides: “Every person commits an offence who, by means of telecommunications, communicates with (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under [certain sections of the Code]…. Perhaps more interesting in this regard is the New Zealand law. Section 131B of the Crimes Act1 1961 defines the offence in a manner very similar to our s. 7 (which may, in fact, have been modelled on it), save that it is confined to communications with “a young person” (under the age of 16 years). However, this was further amended in 2012 to provide:

A reference in this section to a young person under the age of 16 years or the young person includes a reference to a constable who pretends to be a young person under the age of 16 years (the fictitious young person) if the offender, when taking any of the actions described in subsection (1), believed that the fictitious young person was a young person under the age of 16 years.”

In Scotland, likewise, the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (s. 1) provides that this offence is committed by A (the defendant) if B (the person being communicated with) is (i) aged under 16 years or (ii) a constable.

This raises an important policy question to be considered in any review of s. 7 of the 2017 Act. Should it permit string operations mounted solely by the police as opposed to others such as journalists or vigilantes? Should a defendant be guilty only if he was communicating with either a person under the age of 17 years or a member of the Gardaí pretending to be such a person? Should a person apprehended as a result of communicating with a person he believed to be a child but who turned out to be a journalist or self-appointed vigilante be allowed to go free? These are difficult policy questions but they should be confronted rather than relying on the possibly shaky ground of attempt.

An offence contrary to s. 7 of the 2017 Act carries a maximum sentence of 14 years’ imprisonment. But how should the gravity of such an offence be assessed? In recent years, the Court of Appeal has (thankfully) been adopting a more analytical approach than heretofore towards the concept of gravity which has two elements: harm and culpability. In many s. 7 cases the defendant will have acted with a high degree of culpability; he will have set out to sexually exploit a child, perhaps a very young child, he was been grooming for that purpose. This holds true even if the child was fictitious. Assessing the harm element may be more difficult. The offence is essentially preparatory in nature. Granted, the defendant must take certain actions, such as communicating with a child, arranging to meet, etc. But these acts could be perfectly innocent in themselves unless performed with the malevolent purpose of sexually exploiting a child. It is one thing when there is a real child involved. The harm then consists, among other things, of taking advantage of the child’s immaturity and vulnerability (which could be injurious in itself) and placing him or her at serious risk of being sexually exploited. See Hussain [2015] IECA 22, which involved an actual child under the prescribed age.

But how should harm be assessed in a sting operation where there was no child in danger of being exploited, in that particular case at least? This brings us to the more fundamental question of what exactly harm means for the purpose of assessing offence gravity. A characteristic of most “core” (or long established) crimes is that the conduct itself causes harm. This is true of murder, assault, theft, robbery, to name but a few. Nowadays, however, criminal law is replete with “non-consummate” offences the conduct element of which does not, of itself, cause any tangible or immediate harm, although it may (and usually does) involve a risk of future harm. The harm associated with these offences is more remote than that of core offences. The conduct is therefore outlawed in interests of broader social protection. See Sarsfield [2019] IECA 260 regarding possession of drugs for sale or supply.

We could therefore define harm to mean the harm caused by the offence (which would be very narrow) or caused or risked or (perhaps) threatened by the offence. Or, we might go a little further, and adopt the approach of s. 143 of the English Criminal Justice Act 2003 which requires a sentencing court to consider an offender’s culpability “and any harm which the offence caused, was intended to cause or might foreseeably have caused.” The inclusion of harm “intended to be caused” could be important in an assault or attempted murder case, for example, where the victim was lucky enough to escape with little or no physical injury despite the assailant’s intention to inflict much more damage. This is reflected in the English Sentencing Council definitive guideline on attempted murder.

The relevance of all this to sting operations mounted against suspected child abusers was considered last week by the English Court of Appeal in Privett [2020] EWCA Crim 557 which involved an offence contrary to s. 14 of the Sexual Offences Act 2003. This is somewhat different from the grooming offence in s. 15 (which, as noted, is similar in many respects to our s. 7). Section 14 of the 2003 Act creates an offence of arranging or facilitating activity which would constitute a child sexual abuse offence, intending that it will happen. Privett involved four unrelated cases. In each the defendant believed he was talking to the mother of a very young child (6 years of age in three cases and 10 years in the other). In fact, in each, he was talking to a police officer posing as the mother. The description of the defendants’ conduct, it should be said, makes for rather distressing reading. The sentencing of each offence created by the Sexual Offences Act 2003 is governed by a definitive guideline, an important consideration to bear in mind when considering Privett and earlier cases on the same topic (such as Bayliss [2012] 2 Cr. App. R. (S.) 61) from a comparative perspective.

The guideline on s. 14 offences provides that the level of harm should be determined by reference to the type of activity arranged or facilitated by the accused. A court must therefore refer back to the guideline for the offence relating to the conduct the accused was arranging, and take this as its starting point in assessing harm. The contemplated conduct for a s. 14 offence must involve an offence under ss. 9 to 13 of the 2003 Act, and most of these carry maximum sentences of 10 or 14 years. The Court of Appeal confirmed this approach in Privett adding (at [67]) that a court should then “adjust the sentence to ensure it is “commensurate” with, or proportionate to, the applicable starting point or range if no sexual activity had occurred (including because the victim was fictional)….” Earlier (at [61] it had said: “As a general proposition, the harm in a case will be greater when there is a real victim than when the victim is fictional”. The Court upheld all the sentences ultimately imposed on the various defendants (6 years in one case, 5 years and 4 months in two others, 3 years and 4 months in the fourth).

Linking the sentence for a s. 14 offence to the guideline for the offence that was being arranged could lead to some unusual results, as the Court itself acknowledged. It admitted (at [72])

“This may lead to the result that the defendant who arranges the rape of a fictional 6-year-old is punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15-year-old. In our view, there is nothing necessarily wrong in principle with that result. The sentence should be commensurate with the relevant starting point and range [for the offence being contemplated] and in cases where the child is a fiction this will usually involve some reduction (as in Bayliss) to reflect the lack of harm.”

Again, it is important to bear in mind that the Court was bound by a Sentencing Council definitive guideline on the sentencing of s. 14 offences. If we were to consider the matter here, we might take a different approach. The harm element might be viewed in terms of the threat which the offender, by his behaviour, seemed to pose to children, and the injury he was willing or intended to inflict upon them. This essentially embraces a conception of harm as including harm intended to be caused. However, in adopting that policy (which, I think, would be quite defensible), we need not follow the rather rigid approach of the English guideline by insisting that, once the intended harm has been identified, a grooming offence must be sentenced according to whatever guidelines or principles apply to the offence(s) whose definition includes that intended harm, though this could always be a relevant factor.

The U.S. Supreme Court on unanimous jury verdicts

Common-law jurisdictions are by no means unanimous on the necessity for unanimous jury verdicts in criminal trials. Majority verdicts, in one form or another, are allowed in Ireland, Northern Ireland, England and Wales, Scotland, New Zealand and most Australian states. The situation in Australia is rather complicated. As a result of the High Court decision in Cheatle v The Queen (1993) 177 C.L.R. 541, unanimous verdicts are required for Commonwealth offences (which are not all that numerous). Some of the individual states, while generally permitting majority verdicts, require a unanimous verdict for murder. It is all very different in North America. Unanimous verdicts are required in Canada and the United States. However, in the United States, until about a week ago, unanimous verdicts were required in federal trials, but the federal Constitution did not prohibit majority verdicts in the states. Now, in Ramos v Louisiana 590 U.S. – (2020), decided on 20 April 2020, the Supreme Court has held that the unanimity requirement applies to the states as well.

The legal background to Ramos is briefly this. The first ten Amendments to the United States Constitution, collectively known as the Bill of Rights and adopted in 1791, originally applied to the federal government only. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” This been interpreted to mean that it takes a unanimous jury verdict to convict a person of a serious federal offence. See, for example, Patton v United States 281 U.S. 276 (1930). The Fourteenth Amendment, adopted in 1868 shortly after the Civil War, provides (s.1):

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor shall it deny any person within its jurisdiction the equal protection of its law.”

The main objective of the Amendment was to prevent individual states, especially in the South, from denying fundamental rights to racial minorities, including ex-slaves. Through a series of “incorporation” decisions, which began in the 1920s, the Supreme Court has gradually applied virtually all the provisions of the Bill of Rights to the states through the Fourteenth Amendment. For instance, in Gitlow v New York 268 U.S. 652 (1925), the Court applied the First Amendment right to free speech to the states in this way. Until now, the requirement of jury unanimity in criminal trials remained something of an outlier in this respect. It was and remains a requirement in federal trials. But in Apodaca v Oregon 406 U.S. 404 (1972), the Supreme Court decided by a bare majority (of which more later) that the unanimity requirement mandated by the Sixth Amendment did not apply to the states through the Fourteenth Amendment. Apodaca has now been overruled by Ramos, which was a 6-3 decision.

The legal consequences of Ramos are not very significant as far as jury trials are concerned. By the time the petitioner, Evangelisto Ramos, was convicted of murder by a 10-2 verdict in 2016 (and indeed for long before that), 48 states required unanimous jury verdicts. Louisiana and Oregon were the only states to permit majority verdicts. In fact, by the time this case reached the Supreme Court Louisiana had already amended its constitution, but only prospectively, to require unanimous verdicts. This left Oregon on its own. Needless to say, Ramos may have serious practical consequences for both Louisiana and Oregon if they have to deal with a deluge of appeals from persons convicted by majority verdicts (a point that was not lost on Justice Alito in his dissent).

The big question in Ramos was whether Apodaca should be overruled. If so, where did this leave stare decisis? That was what exercised some of the Justices most. Gorsuch J., who delivered the opinion of the Court (on certain parts), was quite clear that a precedent such as Apodaca could be overruled:

“Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before. But stare decisis has never been treated as “an inexorable command.” And the doctrine is “at its weakest” when we interpret the Constitution “because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means, To balance these considerations, when it revisits a precedent this court has traditionally considered “the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.”

(P. 20 of slip opinion, citing earlier opinions). Justice Kavanagh, on the other hand, felt compelled to write an 18-page concurring opinion, and a very learned one at that, in which he analyses the role of state decisis beginning (as American judges are prone to do) with Blackstone and coming right up to the present day. This enabled him conclude:

“In sum, Apodaca was egregiously wrong, it has significant negative consequences, and overruling it would not upset reliance interests.”

At this point, is hard to resist quoting Linda Greenhouse, a superb commentator and Supreme Court scholar, who wrote in the New York Times:

Justice Kavanagh’s 18-page opinion, which no other Justice joined, included a list of 30 of “the Court’s most notable and consequential decisions” that overturned earlier rulings – a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v The Board of Education to Citizens United.”

(“A Precedent Overruled Reveals a Supreme Court in Crisis”, NYT, 23 April 2020). Her successor as Supreme Court correspondent for the Times, Adam Liptak, also has an excellent analysis of the case (NYT, 20 April 2020).

Justice Thomas also concurred in a separate opinion confirming that the Sixth Amendment requires unanimous jury verdicts in criminal trials, but also reiterating his view that such rights are incorporated against the states through the privileges and immunities clause, as opposed to the due process clause, of the Fourteenth Amendment. This has been one of his longstanding preoccupations which he had previously addressed as recently as February 2019 in Timbs v Indiana 586 U.S. – (2019). (Timbs, incidentally, had held that the Eighth Amendment prohibition of excessive fines applies to the states through the Fourteenth Amendment). Justice Thomas concludes his opinion in Ramos, ominously according to some:

The textual difference between protecting “citizens” (in the Privileges and Immunities Clause) and “person[s]” (in the Due Process Clause) will surely be relevant in another case.”

Now come the questions. This was an important case but not one of earthshattering significance. Overruling Apodaca should have been no big deal because it was a very weak precedent to begin with and, as already noted, only one state currently allowed for majority verdicts. Why then did it result in five opinions, including that of the Court, running to 86 pages of the draft official reports? Why did the Court agonise so long and hard about whether it should hear the case at all? Apparently, it was considered at no fewer than eight closed-door conferences over a six-month period before review was granted. Why did Justice Kavanagh write at such length on stare decisis and Judge Thomas, though not quite at the same length, on the proper interpretation of the Fourteenth Amendment?

Some observers are inclined to answer all of these questions with one word: abortion. If a clear majority of the Court can overrule Apodaca (1972), why might they not do the same with Roe v Wade (1973)? Bear in mind that the majority in Roe held that the challenged Texas abortion statute violated the due process clause of the Fourteenth Amendment.

Yet, it is hardly as straightforward as that. Some of the more liberal Justices who joined the majority in Ramos were undoubtedly genuinely committed to unanimous jury verdicts. Justice Sotomayor, for example, who also wrote a concurring opinion, was clearly concerned about the racially-biased origins of the majority verdict laws in Oregon and Louisiana. On the other hand, we find Justice Alito, who is regarded as being on the conservative side of the Court, complaining in his dissenting opinion in Ramos that “[t]he doctrine of stare decisis gets rough treatment in today’s decision.” Moreover, Apodaca, however one looks at it, was a deeply fractured decision. A plurality of four Justices held that the Sixth Amendment did not require unanimous verdicts in either federal or state courts, while four others held that it did. Then, Justice Powell, who was effectively the swing vote, decided that the Sixth Amendment did require unanimous verdicts but that this did not apply to the States through the Fourteenth Amendment. Roe v Wade, on the other hand, was a 7-2 decision and the basis of the majority opinion was quite clear.

Having said all that, it is well to remember that the late Justice William Brennan used to tease his clerks that the most important word in American constitutional law is “five”; it takes only five members of the Court to decide what the law is.

As to the merits of unanimous and majority jury verdicts in criminal trials, the arguments are now well rehearsed. Opponents of majority verdicts ask if a less than unanimous jury can truly be satisfied beyond a reasonable doubt of an accused person’s guilt. After all, in a 10-2 guilty verdict, one-sixth of the jury are clearly not so satisfied. Supporters of majority verdicts usually base their arguments on the possibility that a “rogue” or stubborn juror may insist on holding out, despite compelling evidence of the accused’s guilt. Were this to happen where unanimous verdicts are required, it would lead to a hung jury with the possibility of a long and expensive retrial.

All the indications are that, in these islands and least, majority verdicts are here to stay. One of the ironies about the United States is that although jury verdicts of guilt must be unanimous, jury trials have become something of a rarity. It is estimated that, at present, 97% of all federal convictions and 94% of all state convictions result from guilty pleas. This, however, is largely due to the extraordinary power yielded by prosecutors who can bring multiple charges, some carrying severe minimum penalties, thus almost compelling defendants to enter plea bargains. (A recent issue of the Federal Sentencing Reporter (Vol. 31:4-5 (2019)) was devoted to the so-called trial penalty, referring to the much heavier sentences defendants can expect if convicted following a contested trial). As already noted, in Cheatle v R (1993) 177 C.L.R. 541, the High Court of Australia unanimously held that unanimous verdicts were required in trials for Commonwealth offences. A few months earlier, in this country, the Supreme Court had heard the appeal in O’Callaghan v Attorney General [1993] 2 I.R. 17 which involved a challenge to s. 25 of the Criminal Justice Act 1984 which introduced majority verdicts. The Court peremptorily dismissed the appeal immediately after hearing it (no messing about in those days) and delivered its judgment a few months later.

Yet, at the level of principle and policy, the debate about majority verdicts should not be regarded as closed. Judgments such as those in Cheatle, Apodaca (especially the dissenting opinions) and Ramos, are still worth reading and pondering, not only for their impressive historical surveys, but for their policy analyses as well.

“Here’s how it’s done”: English Court of Appeal takes judges to task on their sentencing statements.

Judges are supposed to give reasons for the sentences they impose (except perhaps in routine summary cases resulting in modest fines). Legal folklore is replete with tales of judges whose sentencing statements were extraordinarily brief or else showed a complete lack of understanding of offenders’ circumstances. There is the story of an unrepresented defendant who made a long and rambling plea in mitigation, ending with the ringing declaration “I am not guilty of this offence and that is as sure as God is my judge.” To which the (presiding) judge replied: “He’s not. I am. You are. Six months.” Then, John Mortimer used to tell of a homeless Irishman who appeared, yet again, before a London court charged with some public order or theft offence. The judge decided to let him off with a suspended sentence but on condition that he abstained from alcohol for six months. Then, addressing the defendant, he said: “Now, Mr Murphy, when I say “no drink” I mean absolutely no drink. Not even a small sherry before dinner.”

Nowadays, in cases of any appreciable level of seriousness, trial judges generally go to some trouble to explain the basis on which they have chosen their sentences, and this often entails describing the offence and its background in some detail. In jurisdictions such as England and Wales with detailed sentencing guidelines, judges may also deem it necessary to justify their reasons for allocating the offence to one offence category or sentence range rather than another, and to identify any factors that have led them to depart from the recommended starting point or range, as the case may be. In fact , once the Sentencing Council begins to produce guidelines in Ireland, courts will be required to state their reasons if they decide not to “have regard to” relevant guidelines when selecting sentence (Judicial Council Act 2019, s. 92).

English trial judges have apparently been setting out their reasons for sentence at increasing length, and progressively so during the past decade as the Sentencing Council has produced more and more definitive guidelines. Some sentencing statements are running to such length that the Court of Appeal felt compelled to step in, as it did in R v Chin-Charles [2019] EWCA 1140; [2019] 1 W.L.R. 5921; [2020] 1 Cr. App. R. (S.) 6. The Court in Chin-Charles consisted of the Lord Chief Justice, Hallett LJ (then Vice-President of the Court of Appeal (Criminal Division)) and Rafferty LJ. Usually, when the Court sits with that kind of composition, it means business, and it clearly did on this occasion. It listed two appeals to be heard sequentially (Chin-Charles and Cullen) purely, it seems, because in each case the trial judge had delivered a very lengthy sentencing statement (running to 17 pages of transcript in Chin-Charles and 76 pages in Cullen), though it must be said that Cullen involved a complex drugs and weapons conspiracy.

The Court of Appeal noted, first, that under s. 174 of the Criminal Justice Act 2003, a court must state openly, in ordinary language and in general terms, its reason for sentence. Further, the court must explain to the offender in ordinary language (a) the effect of the sentence; (b) the effect of non-compliance with any order forming part of the sentence; (c) any power vested in the court to vary or review any order forming part of the sentence; and (d) the effect of failure to pay a fine, if one is imposed. Nowadays, as well, a court is expected to identify any definitive sentencing guideline applicable to the case. The Court of Appeal then proceeded to say:

“The key to the nature of sentencing remarks is the use of the terms “in ordinary language” and “in general terms.” The offender is the first audience because he or she must understand what sentence has been passed, why it has been passed, what it means and what might happen in the event of non-compliance. If the offender understands, so too will those with an interest in the case, especially the victim of any offence and witnesses, the public and the press.

There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience intended by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided.”

Having disposed (quite briefly) of the two appeals, the Court did something unusual. It appended to its judgment a transcript of the trial judge’s sentencing statement in Chin-Charles (Appendix A) together with its own version of what that statement should have been (Appendix B). The contrast between the two is indeed striking. As printed in the Weekly Law Reports, the trial judge’s statement runs to about 7 pages (5930-5937) while the Court of Appeal’s version occupies a page at most. Reading the two together evokes something of a Goldilocks sensation: the trial judge’s statement is too long; the Court of Appeal version is too short; something in between, but closer to the Court of Appeal version, would be just right.

I suggest that the Court of Appeal was right about one thing, but wrong about a number of others. It was right to stress that the offender, and not an appeal court, is the primary audience of a trial judge’s sentencing remarks. A judge should proceed on the basis that the sentence he or she imposes is the final sentence (and in most cases it actually is) and explain why, in his or her judgment, it is the appropriate sentence. Of course, a sentence may later be varied on appeal but, as the Court of Criminal Appeal (per Murray C.J.) explained in People (DPP) v Keane [2008] 3 I.R. 177 at 179-180, courts in most countries are arranged in a hierarchical structure and courts of appeal “have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial process.” The Court of Appeal in Chin-Charles was also right to describe the offender as the primary audience. Others are also entitled to know the reasons for a sentence, and they include the general public on whose behalf justice is being administered by the courts. There are times when it is particularly important to justify a sentence to the public as well as to the offender. As noted in an earlier post on this blog, the trial judge in the Cardinal Pell case in Australia took about an hour to deliver his sentencing statement which was a very good one, covering all relevant matters quite concisely. But that was needed in Pell’s case because of the extraordinary amount of publicity (including a great deal of adverse comment) that had surrounded the prosecution and trial, not to mention the intense public interest in the outcome. There will always be cases like that.

I would, however, take issue with the Court of Appeal for criticising some sentencing statements as being “the equivalent of a judgment.” Surely, that is exactly what they are and what they should be. If the High Court in the exercise of its judicial review jurisdiction is expected to deliver a considered judgment in, say, a challenge on procedural grounds to a District Court conviction for a minor theft offence, why should a court order depriving a person of their liberty for months, years or decades call for anything less than a public, reasoned justification? In fact, it is a great pity that trial court sentencing statements are not published more often, electronically or otherwise. In this country, the judgment (effectively a sentencing statement) of Flood J. in People (DPP) v W.C. [1994] 1 I.L.R.M. 321 is a seminal statement of the principle of proportionality which has been confirmed and developed in many later appeal court judgments.

Secondly, the model judgment, if one might so describe it, suggested by the Court of Appeal in Chin-Charles leaves something to be desired. It may cover the bare essentials, but that is scarcely enough. A sentencing statement should explain, however briefly, why the offence of conviction is being treated as seriously as it, especially when, as in Chin-Charles, the offence involves the infliction of a significant personal injury. One need not subscribe to Jean Hampton’s one-time theory about moral education being the main justification for punishment to accept that sentencing provides an opportunity, indeed an obligation, to set out (again as concisely as possible) why society condemns the conduct constituting the offence. Censure is now regarded by many leading punishment theorists and philosophers as the main justification for state punishment. At the very least, censure is an obvious characteristic of judicial sentencing. One can scarcely censure another very effectively without elaborating to some degree on the nature of the offence, its impact on the victim where there is one, and the reason why such conduct is worthy of condemnation. Further, if consistency is treated as an important sentencing value, as it clearly is in any jurisdiction that has taken the trouble to adopt formal guidelines, then, contrary to what is suggested in Chin-Charles, a court should explain in some detail why it has chosen a sentence within a particular range.

This leads me to mention one reservation which I have about the adoption of detailed sentencing guidelines. Once a comprehensive set of such guidelines has been developed, there is a danger that sentence appeals may become exercises in compliance. The predominant, if not the sole, question may be if the sentence is in conformity with the applicable guideline. There may be much less emphasis, if any, on what might be termed moral reasoning, namely, an analysis of why the offender’s wrongdoing merits formal condemnation and punishment. This is not an inevitable consequence of guidelines, but it is one that both trial courts and appeal courts should strive to avoid.

Apart from all that, there is an irony surrounding Chin-Charles. As Lydon Harris points out in his comment on the case in the Criminal Law Review ([2019] Crim. L.R. 893), the English Court of Appeal has often, including in the very recent past, praised sentencing judges for their “careful and comprehensive” sentencing remarks. On other occasions, it has been critical of brief and vague remarks where the basis of a sentence was left “unexplained.” Indeed, one finds similar comments in judgments of our own Court of Appeal. I am not suggesting that Chin-Charles would be followed here, and there is no reason why it should be. However, it is still worth reading (critically) in order to prompt reflection on how trial judges should go about framing their sentencing statements. Certainly, they need not contain anything like the level of detail in the trial judge’s statement in Chin-Charles (not to mention the 76-page statement in the companion case of Cullen, complex though it may have been). But they should at a minimum identify the degree of gravity of the specific offence (taking account of harm and culpability), victim impact, aggravating and mitigating factors and, where guidelines exist, the applicable sentence range. It is now well established here in Ireland that a court should always specify a headline sentence based on the gravity of the offence before making adjustments for factors personal to the offender and any other ethically relevant considerations. Nor, pace the Court of Appeal in Chin-Charles, should a court shirk from identifying and discussing any authorities (whether legislation or case law) that have some direct bearing on the sentence the court has decided to impose. Finally, of course, a court should take care to explain to the offender the effect of the sentence and of any ancillary orders, and the consequences of non-compliance. This, as noted earlier, is required by statute in England and Wales but, even in the absence of such legislation, it is required as a matter of fundamental justice.