Ruth Bader Ginsburg – advocate and writer

Justice Ruth Bader Ginsburg (1933-2020) made an enormous contribution to American law, and to constitutional law in particular. She also had a strong cosmopolitan outlook and a belief in the value of foreign law as a source of ideas for addressing fundamental legal and constitutional problems. See, for example, her 2005 Sir David Williams Lecture at Cambridge “‘A Decent Respect to the Opinions of [Human]kind’: The Value of a Comparative Perspective in Constitutional Adjudication” (2005) 64 Cambridge L.J. 575. She authored the Supreme Court opinion in several important sentencing cases, the more recent, to the best of my knowledge, being Oregon v Ice 555 U.S. 160 (2009) and Timbs v Indiana 586 U.S. – (2019). The question in Ice was whether an Oregon law permitting a judge, rather than a jury, to find aggravating facts necessary to justify consecutive as opposed to concurrent sentences was compatible with Apprendi v New Jersey 530 U.S. 466 (2000) (the first in a line of cases holding that any unadmitted facts, apart from prior convictions, that may increase a sentence beyond the permitted maximum must be found by a jury applying the criminal standard of proof rather than by a judge). The majority in Ice held that Apprendi did not apply to decisions on whether prison sentences should be consecutive. As might be anticipated by anyone familiar with the area, this provoked a vigorous dissent from Justice Scalia, with whom three others joined.

Timbs was effectively a unanimous decision, although two justices filed concurring opinions arguing that the result should have been reached by a different route. The petitioner was convicted of drug offences by an Indiana court and sentenced to a year’s home detention followed by five years’ probation. Civil proceedings were later brought for the forfeiture of his Land Rover which he had bought for about $42,000 out of the proceeds of a life insurance policy received after his father’s death. This money was in no way connected with drug dealing. The lower court in Indiana and the Court of Appeal held that this attempted forfeiture was a disproportionate punishment and one that amounted to an excessive fine contrary to the Eighth Amendment. But the Indiana Supreme Court reversed, holding that the excessive fines clause of that Amendment applied only in federal law and not to the states. (In Austin v Texas 509 U.S. 602 (1993), it was held that the excessive fines clause applies to civil forfeiture, such as the seizure of the vehicle in this case, when carried out by the federal government). The question for the Supreme Court in Timbs was whether the excessive fines clause in the Eighth Amendment also applied to the states through the Fourteenth Amendment. The Court held that it did as, in fact, most of the states already accepted. Justice Ginsburg’s opinion incudes a very useful historical survey, from the Magna Carta onwards, of the prohibition on excessive fines and disproportionate punishments, although the Court would have been indebted in this regard to the really superb written brief presented on behalf of the petitioner.

Although Justices Ginsburg and Scalia often clashed on the court, they maintained a warm personal friendship off the bench. A picture published a few days ago in the New York Times showed the two of them bedecked with flower garlands and astride an elephant in India sometime in the 1990s. The same newspaper published a video tribute to Ginsburg just after her death, and it included an old video clip of Scalia saying: “What’s not to like about her? Except, of course, her opinions about the law!”

Impressive though she was as a judge, Ginsburg had an even more remarkable career as an advocate. She belongs to a very small cohort of former Supreme Court justices who would have had a transformative influence on American law even if they had never been appointed to the bench. The same might be said of Thurgood Marshall and Oliver Wendell Holmes. Throughout the 1970s, Ginsburg argued several landmark cases on gender equality before the US Supreme Court. She had the luxury of being an academic lawyer at the time, having taught at Rutgers Law School from 1963 to 1972 and at Columbia Law School, where she was the first woman professor to receive tenure, from 1972 until her appointment to the US Court of Appeals for the District of Columbia in 1980. She was appointed by President Clinton to the Supreme Court in 1993. She could therefore pick and choose her cases more freely than other lawyers although it was, of course, a tribute to her that she was briefed in leading cases to begin with.

She was then seen, and is still regarded, as a champion of women’s rights. Yet, some of the more important cases she argued during that era involved discrimination against men. According to one narrative, her plan was to begin with those cases so as to persuade (some have even said “trap” or “soften”) the all-male Supreme Court to affirm that gender discrimination was unconstitutional before she moved on to cases involving discrimination against women. However, the record contradicts that narrative. First, that is not the order in which the cases were brought. In fact most of them were heard in a fairly short time frame, running from Reed v Reed 404 U.S. 71, heard in October 1971, which involved discrimination against women and in which Ginsburg co-authored the appellant’s brief, to Craig v Boren 429 U.S. 190, heard in October 1976. She submitted an amicus brief in Craig but on this occasion she was seated at counsel’s table during argument. Secondly, even in cases where the primary victim of the discrimination was male, Ginsburg usually managed to show, quite convincingly, that the underlying problem was an unwarranted gender stereotyping of women. This was particularly striking in her argument in Kahn v Shevin 416 U.S. 351 (1974), although the case involved overt discrimination against widowers.

In between Reed and Craig were three major cases she personally argued before the Supreme Court and, thanks to the wonders of the internet, we can still listen to recordings of the proceedings, including her arguments, on sites such as Justia and Oyez. To understand the agenda she was trying to advance, one needs to know that, by about 1970, the Supreme Court had developed a two-tier test for adjudicating discrimination claims. Some claims were assessed using a “rational basis” test according to which challenged legislation would be upheld if it could reasonably be regarded as consistent with a legitimate governmental objective. However, other claims, essentially those based on race, alienage and national origin were subject to a more rigorous test. These were regarded as “suspect classifications” that called for “strict scrutiny.” In such a case, the government had to show that the discrimination was justified by reference to a compelling governmental interest, a criterion that was seldom easy to satisfy. (For an excellent account of the law as it stood at that time, see John H. Hasen, “Sex Discrimination and Equal Protection: The Question of a Suspect Classification” (1976) 5 NYU Review of Law and Social Change 1).

Ginsburg firmly believed that gender too should be treated as a suspect category attracting the higher standard of scrutiny. She almost, but not quite, succeeded in Frontiero v Richardson 411 U.S. 677 (1973). Under the law applicable to army personnel, a serviceman was entitled to certain additional benefits for his wife who was assumed to be a dependent. However, a servicewoman, Sharron Frontiero in this case, could not claim that her husband was a dependent unless he in fact depended on her for more than half his support. Ginsburg appeared as amicus in this case, but counsel for the appellant shared his time with her. She took the opportunity to make a strong argument for applying strict scrutiny to sex discrimination cases. Eventually, Fontiero won her case, but the Supreme Court was split on the reasons. A four-judge plurality, for whom Justice Brennan wrote, accepted that sex discrimination should attract strict scrutiny, but that was one short of the five votes needed to make this the law.

Listening back now to Ginsburg’s argument in Frontiero, one is struck first of all by her sheer fluency. She was ordinarily and famously a very slow speaker, given to long pauses so that one seldom knew if she had finished speaking or was just thinking about what to say next. But there was none of this when she appeared in court. She spoke with extraordinary fluency, clarity and conviction. Of course, having only 30 minutes to present one’s entire case does concentrate the mind, and in Frontiero she had only 15 minutes at most. Secondly, she was let speak without interruption. There were no questions from the bench. Thirdly, her arguments clearly influenced Justice Brennan’s plurality opinion, even in the language used. During her oral submissions, she had said:

“Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or contribute to society.” (The oral argument can be heard at: https://www.oyez.org/cases/1972/71-1694).

Justice Brennan’s plurality opinion said (411 U.S. 677 at 686):

“Sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth…. And what differentiates sex from such nonsuspect statuses of intelligence or physical ability, and aligns it with the recognised suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”

This must have given Ginsburg considerable satisfaction, because her principal and unifying ambition in the gender discrimination cases she argued and decided was to show that women, and equally men, should not be presumed incapable of doing any kind of work or fulfilling any social function solely on account of their gender. Equality was her overriding concern.

She may have failed to secure a Supreme Court majority for a strict scrutiny test in Frontiero, but she got something of a consolation prize in Craig v Boren 429 U.S. 190 (1976). This involved a challenge to an Oklahoma law that prohibited the sale of certain kinds of alcohol to males under the age of 21 and females under the age of 18. Ginsburg, as noted earlier, filed an amicus brief on behalf of the ACLU and was present at the hearing. A majority of the Supreme Court held that the Oklahoma law amounted to invidious discrimination against males. More importantly, from a longer term perspective, the Court majority held that sex discrimination was subject to “intermediate scrutiny” under the Fourteenth Amendment. Being a pragmatist, Ginsburg was probably happy with this as a significant step forward, even if it fell short of her ideal. Later in United States v Virginia 518 U.S. 515 (1996), probably the most important sex discrimination case in which she delivered the opinion of the Court, she was able to advance the cause further by stating (p. 531): “Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification for that action”” (citing earlier decisions).

She was lead counsel for petitioners in two other important cases dating from the mid-1970s: Weinberger v Wiesenfeld 420 U.S. 636 (1975) and Kahn v Shevin 416 U.S. 351 (1974). Wiesenfeld raised an issue that would have been familiar to us in this country where, for a long time, a woman whose husband died qualified for a widow’s pension whereas a widower was entitled to no such benefit even if he was caring for dependent children. The facts of Wiesenfeld were slightly different, but the legal issue was essentially the same. In 1972 Paula Wiesenfeld died in childbirth, leaving her husband to care for their newborn child. She had worked as a teacher and was the main provider of the family’s income. If it was her husband who had died she would have been entitled to social security benefits, based on his earnings, for herself and the child, but a surviving husband, as in this case, was entitled to child benefit only. An eight-judge court unanimously ruled in favour of Mr Wiesenfeld, with the majority holding that this arrangement violated the due process clause of the Fifth Amendment. Kahn was rather similar. Under Florida law, widows (as well as persons with certain disabilities) were entitled to a $500 property tax exemption, but widowers were not. On this occasion, the Court ruled by a majority of 6-3 against the widower. The majority reasoned that single women, and widows in particular, faced greater difficulties than single men in securing employment, and this justified the differential treatment. Justice Brennan dissented (joined by Justice Marshall), reiterating his belief that gender discrimination should be subject to strict scrutiny.

Men may have been the direct victims of discrimination in Wiesenfeld (where the arguments can be heard at https://www.oyez.org/cases/1974/73-1892) and Kahn (https://www.oyez.org/cases/1973/73-78), but Ginsburg approached both cases as illustrating official policies that discounted the value of women’s gainful employment. Women’s work, she said, was seen as being of no more than secondary value for the family. Those policies put women “not on a pedestal but in a cage.” She adopted the same approach in Coker v Georgia 433 U.S. 584 (1977) where the Court held that the death penalty for the rape of an adult woman was such grossly disproportionate punishment as to violate the Eighth Amendment. Ginsburg filed an amicus brief on behalf of a group women’s and civil rights organisations supporting abolition of the death penalty for rape. Her main argument was that the designation of rape as a capital offence reflected the archaic belief that a woman was the property of her father or husband. Rape was therefore seen as a crime against property rather than a crime against the person of victim. She was questioned about this brief during her Senate confirmation hearing in 1993 by a senator who wanted to probe her attitude to the death penalty more generally. She responded by urging him to read the brief which would show that it was solely about punishing rape. As commentators later noted, the brief was very carefully and narrowly crafted, and did not address any broader abolitionist arguments.

Ginsburg the advocate therefore remains quite an inspirational figure. She believed strongly in the socially transformative power of the law, and she refused to be discouraged by occasional setbacks. She had a passionate commitment to advancing gender equality and she knew that it would take much time, persistence and effort to achieve her goals. Legal change, including change designed to protect and advance individual rights, should ideally be effected by legislators. But, in a constitutional democracy courts can also be powerful engines of change. This is particularly true of the Supreme Court in the United States where the federal constitution is virtually impossible to amend. (As it happens, in Frontiero three justices refused to join the plurality opinion because, they said, they did not wish to pre-empt the Equal Rights Amendment that had recently been approved by Congress and that would probably solve the problem at hand. Of course, as we now know, that Amendment never received the support necessary under the Constitution to become law). Ginsburg therefore believed strongly in the power of litigation and in high quality written and oral advocacy to generate fundamental change, and for the most part that belief proved to be well founded.

I mention Ginsburg the writer because, since her death, some have noted, with a mixture of surprise and amusement, that she once attributed her remarkably clear and precise writing style to the influence of Vladimir Nabokov. He, rather unfortunately, is commonly associated with just one of his works, Lolita, which might nowadays be regarded as pornographic or even a work of child pornography. Leaving that aside, he was a very fine English prose stylist. Although born in Russia, he was brought up speaking and reading three languages: Russian, English and French. Some time after moving to the United States, he was recruited by Cornell University where he taught Russian and European literature. Ginsburg was a student of his while an undergraduate at Cornell in the early 1950s. When later asked in an interview if she had kept in touch with him, she said that she had not, because after the success of Lolita he had moved to Switzerland to catch butterflies. This was true. Nabokov had a strong interest in entomology and had studied zoology at Cambridge as an undergraduate. And he did apparently spend much of his retirement at Montreux in Switzerland hunting butterflies there and elsewhere.

The interview to which I am referring was one of a series conducted some years ago by Bryan A Garner with US Supreme Court justices about legal writing. Garner is, by any standards, the doyen of legal writing (and, indeed, of writing generally) whose many books include The Elements of Legal Style and Garner’s Modern English Usage. He is currently editor-in-chief of Black’s Law Dictionary. Those interviews may still be viewed on http://www.lawprose.org (click on “videos” under “Bryan Garner”). Ginsburg stressed the values of clarity, precision and brevity and said that the opening paragraph of a judgment should read like a press release so that the reader immediately knows what the case is about. This is evident in some her opinions already mentioned, such as Timbs v Indiana 586 U.S. – (2019) and United States v Virginia 518 U.S. 515 (1996). Incidentally, the extended interview with Chief Justice John Roberts is also well worth watching. He is a fine writer and had an extensive practice as Supreme Court litigator before being appointed to the bench. He has much of interest to say on legal writing and how he went about researching and preparing written submissions for the Supreme Court while he was in practice. One could say that he has good writing in the blood, in the sense that he clerked for Justice Rehnquist who, in turn, clerked for Justice Robert H. Jackson who is widely regarded as the best writer ever to sit on the Supreme Court.

Justice Ginsburg, like other members of the Supreme Court, occasionally gave lectures and addresses at universities in the United States and elsewhere. But she was often at her best when in public conversation with leading constitutional law scholars, and some of these have been posted on the internet. I particularly commend one such conversation with Professor Kenji Yoshino of NYU Law School, dating from 2018: http://www.law.nyu.edu/news/remembering-justice-ruth-bader-ginsburg. Hopefully, we will one day see Kenji himself on the Supreme Court.

The Suspended Sentence (2): A Merciful Measure

The second in a series of five posts on the suspended sentence, the first having appeared on 18 August 2020.

“Time does not run against iniquity” is a maxim often quoted to explain the absence of any general limitation period (in most common-law countries at least) for the prosecution of serious criminal offences. Prosecutions for child sexual abuse are now quite often brought many years, even decades, after the offending is alleged to have occurred. Few other offences are prosecuted after a long lapse of time unless, perhaps, the suspect or accused has evaded justice by absconding before or during trial. However, in PGA v The Queen [2012] HCA 21, a majority of the High Court of Australia refused to restrain the trial of a man accused of having raped his wife in 1963. The Court concluded that, by then, the so-called marital rape exemption had ceased to be part of the law. The complainant was about 18 years at the time of the alleged rapes, but age was not an issue in the case; the outcome would doubtless have been the same even if she had been older. War crimes and crimes against humanity constitute the other major category of offences prosecuted long after their commission, as exemplified by the occasional prosecution, right down to the present day, of Nazi war criminals.

The most recent such trial was that of Bruno Dey, a 93-year-old former SS private who, in July 2020, was convicted by a Hamburg court of 5,232 counts of being an accessory to murder at Stutthof concentration camp in 1944-1945. (See “Ex-KZ-Wachmann zu Bewahrungsstrafe verurteilt” Die Welt 23 July 2020; David Rising, “German court convicts former concentration camp guard, 93”, Washington Post 23 July 2020). One peculiar feature of the trial, from our perspective at any rate, is that it took place in a youth court, the reason being that the accused was aged 17 years and therefore a juvenile when the offending began. In fact, German law goes further and provides that when dealing with a young adult offender, court shall apply juvenile law “if the overall assessment of the perpetrator’s personality, taking account of his living environment, demonstrates that at the time of the act, he was still equivalent to a juvenile in terms of his moral and intellectual development” (Youth Courts Act, s. 105). On the other hand, because of Dey’s age (and partly also because of Covid-19 related concerns since the Spring of this year), his trial took place in two two-hour sessions a week over many months.

Having been convicted, Dey was given a two-year suspended sentence of youth detention (though, if unsuspended, the sentence would have been served in an adult prison). Dey was not actively involved in the killing or torture of detainees. His role was that of concentration camp guard. In fact, the three-year sentence sought by the prosecution seems to reflect an acknowledgement of that limited role. They described him as having been “a small wheel in the machinery of murder.” The suspended sentence actually imposed was nonetheless criticised as being unduly lenient by, for example, the Simon Weisenthal Centre in Jerusalem which said that the sentence was “in a certain sense… an insult to the survivors.” They further noted that Dey had not apologised until he was convicted and facing the prospect of imprisonment.

One can readily understand the distress of Holocaust survivors and the relatives of the millions who died when a person who had any role in the atrocities perpetrated during that era escapes capture or is sentenced leniently. Yet, this case also illustrates the value of the suspended sentence as a penalty. Dey had a role, limited though it may have been, in the greatest atrocity in recorded history. Obedience to superior orders provided no defence. That was established at Nuremberg and given expression in Principle IV of the Nuremberg Principles drawn up by the International Law Commission. It is now encapsulated in Art. 33 of the Rome Statute of the International Criminal Court. Nor, in light of the extraordinary gravity of the crimes involved, should the passage of time have provided immunity from prosecution.

Retribution or desert seems to provide the most compelling justification for punishment in this instance. Rehabilitation, incapacitation and specific deterrence were scarcely relevant in Dey’s case, though some argument might be made in favour of general deterrence. A retributive sentence, according to many modern theorists, should reflect censure for the crime committed, taking account the offender’s culpability or moral blameworthiness, and also entail a proportionate degree of “hard treatment” (in the form of the punishment imposed). In this case, a formal conviction of being an accessory to the murder of more than 5,000 people might seem a severe censure in itself. But more was clearly needed. Whether a headline sentence of two years was sufficient for this purpose may be debatable, although it may be relevant that under German law (for adult offenders at least) it is not possible to suspend a sentence in excess of two years (Strafgesetzbuch, Art. 56). Let us assume, for present purposes, that it was sufficient bearing in mind the offender’s age at the time and his level of involvement in the crime.

The role of mercy in sentencing is a contentious issue, and one that reflects a broader debate about the relationship between justice and mercy. Some, especially those who espouse a retributivist philosophy, hold that mercy should have no role in judicial sentencing. Rather, they say, it is for the Executive to exercise its powers of clemency, if it considers it appropriate to do so, during the currency of the sentence. Others argue that in any humane legal system mercy may legitimately be extended to certain offenders when sentence is being imposed. In this regard, it is always important to distinguish between sentence reductions that may properly be granted for mitigating factors such as illness, disability, infirmity and extreme old age at the time of sentence, and reductions that are purely merciful. Often, in fact, leniency is popularly attributed to mercy when it is actually owing to the presence of recognised mitigating factors. See, for example, Andrew Ashworth, “Departures from the sentencing guidelines” [2012] Crim L.R. 81, discussing cases where the English Court of Appeal used the language of mercy although, in some circumstances at least, similar results might have been achieved by relying on the governing statutory language, “contrary to the interests of justice”, to justify departure from the guidelines (Coroners and Justice Act 2009, s. 125).

Be that as it may, the formal recognition of factors such as serious illness and extreme old age as mitigating reflects a humane sentencing system. One can probably treat the practice as merciful to the extent that the offender is spared the full punishment that he or she would ordinarily deserve for the crime committed. A suspended sentence allows a court to mark the seriousness of the offence while simultaneously showing humanity or mercy by sparing the offender the experience of imprisonment, as the German court did for Bruno Dey who, at the time of sentence, was 93 years old and wheelchair-bound. The same has occasionally been done in Ireland for elderly offenders, especially when they they are suffering from serious illness, disability or infirmity. Granted, it is done very rarely when the offence was a grave one such as rape. Yet, in People (DPP) v JJK (Central Criminal Court, 22 October 2018), an 86-year-old man who pleaded guilty to the serious sexual abuse of two young children between 1958 and 1963 was given an eight-year suspended sentence. The trial judge emphasised that, were it not for the offender’s age and ill-health, a severe custodial sentence would have been in order. The offender had previously been imprisoned for similar offences.

Under Irish law (Criminal Justice Act 2006, s. 99(1)), a determinate prison sentence of any length may be suspended and for any period. Some may question the wisdom of this, but it has the advantage that, in a case like JJK, a court can mark the gravity of the offence by specifying a lengthy custodial term (the censure element) while suspending it in light of the exceptional personal circumstances of the offender. Of course, even in such a case, the sentence is liable to be activated if a condition of suspension is breached.

By way of update, it seems that the decision of German court in Dey is currently under appeal by the Nebenklager (effectively the victims) and the defendant.

I am most grateful to my friend, Dr Alexander Heinze of the Law Faculty of Georg-August University, Gottingen, for very helpfully answering several questions about the German juvenile law system.

House parties, Covid-19 and the inviolability of the dwelling

One of the luxuries of writing a blog like this is that one can raise questions without even claiming to have the right answers, in so far as there are any. Today’s questions relate to Government-imposed restrictions on house parties as part of the effort to control the spread of the Corona virus. Admittedly, the term “house party” is misleading because we are talking about any gathering in a private dwelling involving more than six visitors from not more than three different households. According to what we are told, the Gardai will be given quite extensive powers to deal with breaches of the restrictions by public houses, restaurants and the like. But it has been decided not to give them any similar powers to deal with gatherings in private dwellings. There have been suggestions from politicians and others that the grant of such powers might conflict with the constitutional guarantee to privacy of the dwelling. But would it?

Article 40.5 of the Constitution provides:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

This is another situation where, today, “citizen” can safely be read as “person.” The inviolability of the dwelling is not absolute. Forcible entry is permissible provided it is in accordance with law. There is a whole host of laws permitting such entry, notably the many statutory provisions, such as s. 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001, that permit a District Court judge to issue a search warrant which, in turn, authorises members of the Gardai to enter a specified place (including a dwelling), using reasonable force if necessary, in connection with the investigation of a suspected offence.

Forcible entry of a dwelling may therefore be permissible when authorised by law but the big question is: will any law do? Suppose a law were enacted to the effect that “a member of the Gardai may forcibly enter a dwelling whenever he or she considers it necessary or expedient to do so”. Would that law be compatible with Art. 40.5? In all probability it would not, especially in light of the well-known statement by Henchy J. in King v Attorney General [1981] I.R. 233 at 257 that the phrase “in accordance with law” in Art. 40.4.1 of the Constitution must imply “without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution.” The same must surely apply to the identical phrase in Art. 40.5. Of course, this leaves many questions unanswered, including what precisely those fundamental norms are and how they might be violated. However, constitutional norms presumably include principles of non-discrimination and legal certainty (the main issue in King itself). The hypothetical law mentioned at the beginning of this paragraph would scarcely pass muster because of the arbitrary, uncontrolled and ill-defined police power it seems to confer.

Suppose, on the other hand, a law were made (and it would have to be by way of primary legislation) which provided that, whenever a member of the Gardai, acting in the course of his or her duties, formed a reasonable suspicion that a gathering was taking place in a private dwelling that was in breach of the relevant regulations, he or she could enter that dwelling, using reasonable force if necessary. What might happen after the Garda entered is another matter. But the law might, for example, provide that anyone present who refused to leave when asked to do so would be guilty of an offence, rather like to a refusal to “move on” under s. 8 of the Criminal Justice (Public Order) Act 1994, as would anyone who failed to give their true name and address. A law of this nature would probably fulfil the requirements of legal certainty, provided the underlying regulations were clear, the formation of a reasonable suspicion would not be difficult in many cases (where, for example, the party was going full blast) and, in policy terms, the law would probably be justifiable because of the compelling social interest in controlling the spread of the Corona virus.

In saying all this, I am conscious of the practical difficulties that the enforcement of such a law might create. For one thing, it could sour relations between the Gardai and members of the community, especially at a time when maintaining good relations is so crucial. Secondly, it could take a substantial contingent of Gardai to break up a large party and there is a strong possibility that arrests would have to be made in the process. Here, however, I am merely posing the question as to whether, purely as a matter of constitutional law, a statutory provision of this kind would be permissible. I am inclined to think it would be, but others may have a different view.

That would be a civil matter

According to media reports, the Government is planning to make gatherings in private homes that are in breach of the regulations a “civil offence.” What that means is far from clear though the same reports provide a clue by quoting ministers as saying that the Gardai would have no role in policing such domestic gatherings. Instead, “the Minister for Health, for example, could take somebody to court but it wouldn’t be a Garda prosecution” (according to a statement attributed to Tanaiste, Leo Varadkar). So the Government is effectively saying, to paraphrase Father Jack, “that would be a civil matter.” I suspect, however, that it will be, and can only be, a criminal matter, save that the power to investigate and prosecute will be vested in one or more public authorities other than the Gardai. There is nothing at all unusual about that. Numerous public bodies, including planning authorities, the Health and Safety Authority, the Competition and Consumer Protection Commission, the Food Safety Authority of Ireland and many others, are empowered to initiate summary proceedings in respect of certain statutory offences. (A decision to prosecute on indictment must be taken by the DPP). However, these are unambiguously criminal prosecutions that can result in the imposition of criminal penalties. How the Department of Health or other non-police body would go about detecting and investigating house parties and the like is, of course, an entirely different question.

Private prosecution

It will be interesting to see if the legislation permits or excludes private prosecutions. At present, a private prosecutions is possible for any offence, unless specifically prohibited or restricted by statute. Admittedly, in the case of indictable offences, the private prosecutor nowadays is effectively confined to initiating proceedings. Any further steps require the consent or authorisation of the DPP. See Kelly and Buckley v Judge Ryan [2013] IEHC 321 (High Court) and [2015] 1 I.R. 360 (Supreme Court) for a detailed discussion of private prosecutions, though specifically with reference to indictable offences. Leading earlier authorities include State (Ennis) v Farrell [1966] I.R. 107 and People v Roddy [1977] I.R. 177. However, it seems that a summary offence may be fully prosecuted by a private individual, again in the absence of a statutory restriction. The Constitution appears to be neutral on the matter. It does not prohibit private prosecutions, but neither does it confer a right to prosecute privately. In Ennis (at p. 121), O Dalaigh C.J. said that it would require “very clear language to abolish the valuable right of private prosecution.” This suggests that private prosecution could constitutionally be abolished and nothing has been said by the courts in the meantime to suggest otherwise.

Like many others, I have mixed feelings about private prosecutions. The essence of a crime, by most accounts at least, is that it amounts to a wrong against society, as well as against a particular victim, where there is one. Further, a prosecution may lead to a conviction and the imposition of some punishment, severe or otherwise. A prosecution, one might therefore argue, should always be taken in the public interest, and never to advance a purely private interest, let alone a private grievance or grudge. Yet, properly used, a private prosecution may serve a useful purpose where, for example, a person has clearly been victimised as a result of criminal conduct and no public authority is willing to act. As already mentioned, the most a private prosecutor can do in the case of an indictable offence is to initiate proceedings. Even then, as Hogan J. noted in Kelly and Buckley v Judge Ryan [2013] IEHC 321 at [20], a private prosecution can serve the purpose of “[drawing] the public prosecutor’s attention to the case with the implicit request that the prosecution be taken over.”

Further, a private individual seeking to initiate a prosecution must apply to a District Court judge for a summons under s. 10 of the Petty Sessions (Ireland) Act 1851. The administrative procedure for issuing summonses under the Courts (No.3) Act 1986 applies only to applications by members of the Gardai (who, under the Garda Siochana Act 2005 (s. 8), may nowadays initiate and conduct summary prosecutions only in the name of the DPP), the DPP herself, the AG or “any person authorised by or under statute to prosecute the offence.” (This does not include private prosecutors). Judicial scrutiny should go a long way towards weeding out patently unfounded summons applications from private individuals.

According to recent reports, a Cork landlord was the subject of a complaint by residents living close to some of his rented properties where “Covid parties” were being held. Some of the reports stated that this was a private prosecution. However, it seems to have been an application under s. 108 of the Environmental Protection Agency Act 1992, because the District Court judge made an order under that section. This Act, incidentally, affords a good example of the expansion of regulatory crime. Section 8(1) provides that any contravention of the Act itself (which has 113 sections and three schedules) or of any regulation or order made under it or of any notice served under it constitutes an offence. Those with an interest in the currently hot topic of criminalisation and overcriminalisation may wish to take note. It also provides (s. 11) that the Agency may prosecute summarily any offence under the Act. However, s. 108(1), which deals with “noise as a nuisance”, provides:

“Where any noise which is so loud , so continuous, so repeated, of such duration or pitch or occurring at such times as to give reasonable cause for annoyance to a person in any premises in the neighbourhood or to a person lawfully using any public place, a local authority, the Agency or any such person may complain to the District Court and the Court may order the person or body making, causing or responsible for the noise to take the measures necessary to reduce the noise to a specified level or to take specified measures for the prevention or limitation of the noise and the person or body concerned shall comply with such order.”

Failure to comply with a s. 108 order, which was made in the Cork case, is an offence which, following summary conviction, is punishable with a fine, a maximum of 12 months’ imprisonment or both.

This is a useful remedy but really only applicable where noise is being generated on a grand scale, such that it is a reasonable cause of annoyance to nearby residents or occupiers. What we are more concerned about at present is much smaller gatherings, perhaps with no more than a dozen people, that are not causing annoyance to anybody. But they can still provide an environment in which the Corona virus may quite easily spread. That is why we wait with interest to see what form the new “civil offence” will take.

Golfgate: A Plea for Rationality and Proportionality

The back story to what has become known as Golfgate is now well known. The Oireachtas Golf Society held a two-day outing on 18 and 19 August at Ballyconnely, near Clifden in County Galway. The participants included several current and former members of the Oireachtas as well as some others including a retired broadcaster and a Supreme Court judge. On the evening of the second day, there was a dinner in a Clifden hotel that was apparently attended by about 80 of the participants though, by all accounts, they were divided into two groups in different dining rooms. It seems to be accepted that this arrangement violated the restrictions on indoor social gatherings then in force because of the Covid-19 pandemic. The public outcry in response to this event has been strong and unrelenting, with calls for any attendee who holds public office to resign from it. This post is not intended as a criticism of those who have strongly condemned the event and the participants. Rather I am approaching the matter as someone with a longstanding interest in punishment policy and practice. My argument in a nutshell is that any penalty, formal or otherwise, imposed on those who attended the event must, as in any other case involving the infliction of punishment, be rational and proportionate.

Let me stress at the outset that nothing I say here is intended to deny or downplay the extent and seriousness of the Covid-19 pandemic. The numbers of confirmed cases and deaths, here at home and worldwide, speak for themselves. Each of those deaths was a human tragedy and, for countless family members and relatives, the experience of loss and bereavement was intensified by restrictions that prevented funerals being held in the normal way. Secondly, I accept fully the need for the social restrictions to which we have all been subject since the pandemic began and to which we will probably remain subject for some time to come. Everyone has suffered to some degree from those restrictions and many suffered very badly indeed in mental, emotional and material terms. Thirdly, I accept fully the need for the restrictions to be properly enforced and for those found guilty of violating any relevant criminal law to be punished appropriately and that, of course, includes being punished proportionately to the gravity of the offence.

Social punishment is often far more severe than any judicially-imposed penalty. In recent years, there has been a great deal of academic research on the collateral consequences of criminal offending. The primary punishment imposed for certain offences, which will typically be a term of imprisonment, a fine or a suspended sentence, is often only part (and sometimes a very small part) of the overall punishment which a convicted person will endure. Further life-changing consequences flowing from the conviction may include loss of employment, loss of home, social ostracization and stigma which, in turn, combine to make it extremely difficult, if not impossible, for the person to rebuild his or her life.

The response to the Clifden golf outing is a good example of social punishment, save that it has been imposed and called for without there being a criminal charge against anyone involved, let alone a conviction. This, of course, is unobjectionable in itself. Disciplinary sanctions and measures are often imposed on employees and others in the public and private sectors, and are also quite common in sporting organisations. However, they cannot be imposed arbitrarily or at the whim of a person in authority. People should not be subject to such sanctions unless they have had a fair opportunity to defend themselves, and any sanction imposed must be both reasonable and proportionate to the gravity of the wrongdoing. There is an extensive body of constitutional and administrative law confirming those basic principles. Proportionality is not just the overarching principle of sentencing in this country. It has also been described by the Supreme Court as a “well-established tenet of Irish constitutional law” (Rock v Ireland [1997] 3 I.R. 484 at 500).

For the purpose of what follows, I shall assume that the dinner held in Clifden was in breach of the rules then applicable to indoor social gatherings. It would therefore follow that all those who voluntarily attended did some wrong. The question is what the response to that wrong should be. The first point to note is that, for many of the attendees, there can be no social punishment because they are no longer actively involved in public life. The only ones being punished are those who can be punished, and that is a very small minority. I am far from saying that it is unjust to impose some sanction on those who held public office at the time of the event. But what I am saying, emphatically, is that the sanction should be proportionate to the wrong.

As matters now stand, one attendee, Dara Calleary TD, has resigned as Minister for Agriculture and another, Senator Jerry Buttimer, has resigned as Leas-Cathaoirleach of the Seanad. EU Commissioner Phil Hogan is under intense pressure, and there have been calls for his resignation. Then there is the case of Judge Seamus Woulfe who has recently been appointed to the Supreme Court, having previously served for three years as Attorney General. Should he be pressured to resign or else face removal from office in accordance with Article 35.4 of the Constitution (whereby a judge may be removed for “stated misbehaviour or incapacity” following a resolution by both Houses of the Oireachtas)? I believe that he should not, because such a punishment would be disproportionate.

Article 35.4 of the Constitution provides the only means now available for dealing with a judge accused of misbehaviour of any kind, and it is a very blunt instrument indeed. Either a judge is removed from office or nothing is done (formally at least). The Judicial Council Act 2019 was introduced, after a long gestation period, to address this anomaly. It has a very detailed set of provisions for dealing with complaints made against judges. The possibility of referring the matter to the Minister for Justice and Equality with a recommendation that steps be taken under Article 35.4 to remove the judge from office remains, but there are other options such as admonishment that will be adequate in most cases. Removal from office should be reserved for cases of grave misbehaviour. This is clear from s. 80(3) of the Judicial Council Act 2019. Incidentally, it is not the case that the Bill leading to this Act was “filibustered within an inch of its life in the Seanad”, as Professor David Gwynn Morgan claims in the Irish Times (August 25, 2020). He may have been thinking of the Judicial Appointments Commission Bill. The Judicial Council Bill, although initiated in 2017, went through the Seanad quite quickly and, if I recall correctly, completed all stages in the Dail in less than two hours in July 2019.

Unfortunately, those provisions of the Judicial Council Act 2019 dealing with complaints against judges are not yet in force, although some of the Act’s provisions entered into force as long ago as September 2019, and many others in December 2019. It would surely be unjust and, indeed, irrational if a judge were now to be removed from office or effectively forced to resign when, in a few months time or sooner, there will be a system in place to deal with complaints and allegations of varying degrees of gravity and the possibility of imposing a commensurate sanction where there is an adverse finding against the judge in question. In the case of Judge Woulfe, an apology (which he has already made) or an admonishment would surely be the appropriate response, assuming he is found to have been at fault in connection with his attendance at the dinner in question.

Judges, no less than anyone else accused of wrongdoing, be it serious or otherwise, are entitled to due process and to be dealt with in a rational and principled manner. That includes being given a proportionate sanction where some kind of misbehaviour is adequately proved. In the case of Judge Woulfe, removal from office would, in my respectful opinion, be entirely disproportionate. Bear in mind that this would entail, not only loss of employment and income, but many collateral consequences including the general opprobrium connected with the removal or forced resignation, and the serious impact on himself and his family. All of these matters should be considered when devising a proportionate sanction.

As former Court of Appeal Judge Garrett Sheehan is quoted as saying in the Irish Times (25 August 2020), we must be wary of hounding good people out of office for one serious mistake, and especially where they have relied on the judgment of others for the purpose of abiding by prevailing regulations. Judge Woulfe has already served this country well during his years as Attorney General, possibly the most demanding job, in terms of time, expertise and commitment, that anyone could hold in the public sector. I am convinced that he will be an equally effective and dedicated member of the Supreme Court for many years to come and that it would be a great loss to the country if he were now prevented from serving in that role.

Finally, to mention yet another contribution to the Irish Times (25 August 2020). A letter writer says that it is unthinkable that Judge Woulfe would hear a case involving a challenge to the constitutionality of a law enacted in response to the pandemic. The letter writer is correct. Judge Woulfe would not be a member of the Supreme Court bench hearing such a case. The same routinely applies when any Judge of the Court has had any prior involvement in a case or in circumstances where his or her presence on the Court hearing a case might risk giving the appearance of bias.

The Suspended Sentence (1): An Adaptable Measure

This, the first of five posts on the suspended sentence, will consider R v Manning [2020] EWCA Crim. 592 in which the English Court of Appeal upheld a suspended sentence, partly because of the impact of Covid-19 on the experience of imprisonment. The decision illustrates the suitability of the suspended sentence, especially when combined with other measures, as a response to medium-level offending when there are personal or circumstantial factors strongly militating against the imposition of immediate imprisonment.

Manning (M) pleaded guilty to four counts of sexual activity with a child contrary to s. 9(1) of the Sexual Offences Act 2003 and one count of inciting a child to engage in sexual activity contrary to s. 10(1) of the same Act. He was a 47-year-old man who met the victim, then a 14-year-old girl, through their shared interest in darts. She happened to be a talented darts player. They arranged to meet alone on a few occasions when he engaged in some sexual activity with her. The incitement charge arose partly from those acts and partly from text messages he sent her during the same period. The physical conduct involved was not particularly serious, though clearly exploitative, but M’s level of culpability was accepted as being high because of the age difference and other factors. There was evidence that the offending had a significant adverse impact on the victim. The trial judge imposed a sentence of 12 months’ imprisonment, suspended for 24 months, together with a range of other orders described below.

The Attorney-General referred the case to the Court of Appeal, arguing that the sentence was unduly lenient. The Court agreed that the headline sentence was unduly lenient and should have been 30 months. Once a discount for the guilty plea was applied, the final sentence would be two years’ imprisonment. This immediately left open the possibility of suspension because under s. 189 of the Criminal Justice Act 2003, a prison sentence of not more than two years may be suspended. (See Archbold 2020, Para.5A-609). The Court of Appeal did not consider it was wrong in principle to impose a suspended sentence in this case. First, there was a realistic prospect of rehabilitation, and M had been engaging well with the Probation Service since sentence. Secondly, there were other mitigating factors, e.g. the absence of previous convictions. Thirdly, there quite onerous ancillary orders attached to the suspended sentence, a point to which we shall return. Fourthly, and significantly for present purposes, the Court said (at [41]-[42]):

“We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lockdown as a result of the Covid-19 emergency. The impact of that emergency on prisons is well known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the present emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.

Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. Moreover, sentencers can and should bear in mind the Reduction in Sentence Guideline. That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates’ Court to remain jurisdiction, rather than committing for sentence.”

It is indeed an established principle that, when deciding on sentence, a court may and, arguably, should consider the impact of a custodial sentence on the individual offender and, where relevant, on others such as family members who are dependent on the offender in one way or another (see, for example, R v Petherick [2013] 1 Cr. App. R. (S.) 116; People (DPP) v Durcan [2017] IECA 3). A foreign offender who will find imprisonment particularly onerous because of language difficulties or some other factor is usually granted some mitigation on that account. Manning, however, illustrates the deeper underlying principle that the pain of imprisonment should be measured, not only by its duration, but also by its intensity. As argued by Adam Kolber in his well-known article, “The Subjective Experience of Punishment” (2009) 109 Columbia L.R. 182, two people sentenced to identical terms of imprisonment may have radically different experiences of custody. One may find it reasonably tolerable while the other may find it unbearable. A fair sentencing system requires more than temporal equivalence as far as custody is concerned. Regard must also had to the subjective experience of individual offenders. The circumstances in Manning were analogous to this. It was not so much that M himself might have found imprisonment particularly difficult (though from information contained in the judgment, this might also have been true). Rather it was the case that anyone sentenced to imprisonment at that particular time, while the lockdown regime was in force, would find incarceration much more onerous than it normally is.

Manning might be compared with the decision of the Ontario Superior Court of Justice in R v Hearns 2020 ONSC 2365 where the court took judicial notice of the pandemic and the high risk of infection in custodial institutions. H pleaded guilty to an aggravated assault that had left the victim seriously injured. There were several aggravating factors. By the time of sentence, H had served the equivalent of 1001 days in prison. (In Canada, credit is usually given for 1.5 days for every one day spent in pre-trial custody). The court drew a distinction, as Canadian courts have previously done, between proportionality and fitness of sentence. A proportionate sentence is one that is no more severe than merited by the gravity of the offence and the moral blameworthiness of the offender. Fitness is a broader concept that permits consideration of other factors such as the conditions in which the sentence will be served. In this instance, fitness called for a sentence that was probably more lenient than a strictly proportionate sentence might be, bearing in mind all the circumstances of the case. The court therefore sentenced H to one additional day in prison, followed by three years’ probation with conditions attached.

At first sight, the suspended sentence ultimately imposed in Manning may seem unduly lenient. However, as the Court pointed out (at [3]), there were several ancillary orders and conditions attached to it:

“[The trial judge also imposed] a tagged curfew for nine months between the hours of 9 pm and 6 am, with the purpose significantly to restrict the offender’s liberty. In addition, he imposed a Rehabilitation Activity Order for 30 days, which included one-to-one work with an offender manager, and a requirement that the offender undertake the MAP for Change Treatment Programme. A number of ancillary orders were made, some of which we mention. A restraining order was imposed for five years which prevents the offender contacting his victim or her family. A strict Sexual Harm Prevention Order was also imposed for seven years which, amongst much else, provides comprehensive protection for young people and also inhibits the freedom of the offender to use his computer or other devices in the ordinary way. He was ordered to pay £7,500 in compensation, together with £1,200 towards the costs of the prosecution. Both sums were paid within a fortnight.”

The overall sentence, therefore, was quite severe, bearing in mind that a breach of any of the conditions or orders (such as the seven-year restriction on the use of a computer) will undoubtedly lead to further punishment. A suspended sentence, depending on the conditions attached to or accompanying it, may be very punitive indeed (as will be discussed further in the third of this series of posts).

However, what Manning primarily illustrates, I suggest, is the adaptability of the suspended sentence as a penalty option. It permits a court to identify a headline sentence that reflects the gravity of the offence and, thereby, to express the degree of censure which the offender deserves for his or her conduct. In this connection, it should be recalled that the Court of Appeal in Manning increased the headline sentence. Yet, once the ultimate sentence falls to two years or less, as conveniently happened in Manning, a court may take account of many different matters when deciding if a sentence should be suspended including factors, such as the impact of Covid-19, that would not apply in normal times. The suspended sentence, especially when accompanied by reasonably demanding conditions, can therefore be highly adaptable in responding to both novel and commonly recurring circumstances. Complete suspension of sentence will not be appropriate in every such case. Where, because of the gravity of the offence, custody cannot be avoided, a reduction in the otherwise deserved sentence will usually be the most appropriate response. In Ireland, there is the further option of a partly suspended sentence.

Another feature of Manning is worth noting for comparative purposes, especially now that Ireland is about to become a guidelines jurisdiction. In connection with the sentence imposed on M for the incitement offence (which is covered by the Sentencing Council’s Definitive Guideline on Sexual Offences), the Court of Appeal found it regrettable that earlier authorities on the application of the guideline had not been drawn to the trial judge’s attention. In fact, the Court of Appeal had furnished them to counsel in advance of the hearing. The significance of this is that in R v Thelwall [2016] EWCA Crim. 1755 a differently constituted Court of Appeal had said that where an offence is subject to a definitive guideline, citation of earlier decisions of the Court on the application of that guideline will generally be of no assistance. All that matters is the guideline itself. This was a strange decision especially because, as Lyndon Harris pointed out at the time ([2017] Crim. L.R. 240), failure to consider earlier decisions could lead to a lack of consistency, the very value the guidelines are intended to promote. However, the better view, which has clearly prevailed in the meantime, is that earlier decisions on the application of a guideline can be highly relevant and helpful, and Manning is yet another illustration of this.

Postscript on Covid-19 in prisons

By all accounts, there has not been a single case of Covid-19 in an Irish prison and this is a great tribute to the Prison Service. The situation is much different elsewhere, and especially in the United States. According to a report from the Centre for Infectious Diseases Research and Policy at the University of Minnesota, Covid-19 cases in state and federal prisons were 6.5 times higher and the death rate three times higher than in the general population from 31 March to 6 June. A total of 42.107 of 1.3 million prisoners were inflected and of those 510 died. The figure of 1.3 million refers only to those in state and federal prisons. A further 630,000 are held in local jails and another 100,000 in youth, immigration and various other detention facilities. A more recent survey from ACLU claims that since the pandemic began, more than 50,000 people have tested positive and over 600 have died.

English prisons have also been quite badly affected. According to information on the Nuffield Turst website, up to 15th June, there were 502 confirmed cases of Covid-19 among prisoners while 971 prison staff also tested positive. By that date, 23 prisoners and 9 staff members were reported to have died from the virus. The prison estate implemented a lockdown which resulted in the majority of prisoners remaining locked in their cells for at least 23 hours a day. This, as we have seen, was an important consideration in Manning.

Aaron Brady found guilty of capital murder, according to The Irish Times. No, he wasn’t.

As soon as the verdict in the Aaron Brady case was announced the day before yesterday, The Irish Times (on its website) reported that he had been found guilty of capital murder. Other media had similar reports. It is hard to blame them for this mistake, because I have also heard some lawyers describe the case as one of capital murder. A capital crime is one that carries the death penalty, either as the mandatory sentence or as one of several available punishments. It is rather ironic that the error should occur in this jurisdiction where we have abolished capital murder not once, not twice, but three times. The Criminal Justice Act 1964 (s. 1) provided that a person should not be liable to suffer death for any offence other than treason, “capital murder” and certain offences contrary to military law. “Capital murder” in turn was defined to include the murder of a member of the Gardaí acting in the course of his her duty. These capital murders, as the term implies, continued to carry the death penalty which was imposed in a number of cases between 1964 and 1990 but never implemented. All other murders ceased to be capital at that point and were instead punishable with life imprisonment. The Criminal Justice Act 1990 repealed the 1964 Act in its entirety, apart from ss. 4 and 11. Section 1 of the 1990 Act provides: “No person shall suffer death for any offence” while s. 2 provides: “A person convicted of treason or murder shall be sentenced to imprisonment for life.” Capital punishment was therefore completely abolished.

Sections 3 and 4 of the 1990 Act go on to provide that a person convicted of certain murders, including the murder of a member of the Gardaí acting in the course of his or her duty, shall be subject to a special sentencing regime. Where a person is convicted of a s. 3 murder or treason, a life sentence shall be imposed but the court must, additionally, “specify as the minimum period of imprisonment to be served by that person a period of not less than forty years”. A court may therefore specify a minimum term in excess of 40 years and could, in theory at least, specify a term of such length as to constitute, in effect, a whole-life sentence, even allowing for the one-quarter remission to which such persons remain entitled. Whether this would pass muster with the European Court of Human Rights in light of Vinter v United Kingdom (2016) 63 EHRR 1 and Hutchinson v United Kingdom (2015) 61 EHRR 13 is a different matter. Where the offence is an attempt at a murder covered by s. 3, the court “shall pass a sentence of imprisonment of not less than twenty years and specify a period of not less than twenty years as the minimum period of imprisonment to be served by that person.”

Finally, in 2001, we amended the Constitution by way of referendum to delete all references to the death penalty. The main effect of the amendment is now found in Art. 15.5.2: “The Oireachtas shall not enact any law providing for the imposition of the death penalty.” The referendum was held on 7 June 2001 on which date we also adopted an amendment allowing the State to ratify the Rome Statute of the International Criminal Court. It was probably fortunate the referendum was held in June 2001, because the number in favour of abolishing the death penalty so conclusively might well have declined, and perhaps become a minority, if the vote had taken place in, say, October 2001, bearing in mind what happened on 11 September in the United States.

Of course, the point I am making here about the use of the term “capital murder” is of no importance in the overall scheme of things. Perhaps the most significant aspect of the Aaron Brady trial is that an event that, by all accounts, lasted 58 seconds (with shockingly tragic consequences) led to a trial lasting 122 days in the Central Criminal Court. In the past, criminal trials for serious offences were certainly too short, as illustrated by the trial of Felix McMullen (which bore some factual similarities to the Brady case) in 1924.

McMullen and a co-accused Peter Jordan, both former army officers, were charged with the murder of a member of the civic guard during a bank raid at Baltinglass on 28 January 1924. The first trial, which lasted two days, ended with a jury disagreement. The retrial, which followed immediately, lasted less than a day. The evidence given at the previous trial was repeated and none of the witnesses for the prosecution was cross-examined. Following brief addresses by defence counsel and the judge, the jury deliberated for 40 minutes. They acquitted Jordan but found McMullen guilty of murder (though with a recommendation for mercy). The judge thereupon donned the black cap and sentenced McMullen to be hanged on 1 August 1924. (See The Irish Times, 11 July 1924). A few days later, counsel for McMullen went to the Supreme Court and asked the Chief Justice to convene a Court of Criminal Appeal to hear an appeal against conviction. This was granted and the appeal was very quickly heard over two days in late July 1924. However, the Court dismissed the appeal and affirmed the death sentence. Leave to take a further appeal to the Supreme Court was refused. McMullen (26) was hanged by Mr Pierpoint on 8 August 1924 at Mountjoy Prison. (See The Irish Times, 22, 23 and 26 July and 9 August 1924). By the way, it was not all good news for Peter Jordan. The day after his acquittal on the murder charge, he pleaded guilty to assaulting the bank manager with intent to steal while armed with a revolver. He was sentenced to 10 years’ penal servitude and 20 strokes the lash to be administered before he entered prison. McMullen’s appeal may have been the first to be heard by the newly-established Court of Criminal Appeal, but I am not entirely sure about that.

If trials for serious offences, including “capital” offences, in those days were too short, are they nowadays too long? To what extent, for example, is the volume of disclosure that must now typically be made contributing to the length of trials? Having recently chaired a working group on the investigation and prosecution of sexual offences, I am more than familiar with the problems associated with the voluminous amount of material, including digital records, that must nowadays be disclosed in many criminal cases. Perhaps it would be useful at this point to have a retrospective empirical study of a number of lengthy criminal trials to see if there are any viable means of abbreviating them.

Long trials are particularly difficult for juries. The Brady trial lased 28 weeks which is more than half a year (and, because of the pandemic, probably the most difficult half-year in living memory). Jury trial, as noted in previous posts, is both a right and an imperative under the Constitution but it is a right that the State cannot, on its own, deliver. Instead, it must rely on its citizens to come forward, serve as jurors and thereby provide the kind of trial to which accused persons are constitutionally entitled. This raises the question of whether jurors should be paid. As the law now stands, jurors are not entitled to payment but, under s. 29 of the Juries Act 1976, their employers must continue to pay them. (The Committee on Court Practice and Procedure had recommended in 1965 that jurors should be remunerated on a reasonable basis, but this was not accepted by the drafters of the 1976 Act). In its Report on Jury Service (2013), the Law Reform Commission recommended (Para. 12.51) that there should be a modest flat rate daily payment to cover the cost of transport and other incidentals involved in jury service. Perhaps, however, we should now go further and consider paying jurors who are required to serve in long criminal trials. Many small and medium sized businesses probably find it hard to keep paying employees who are absent on jury service, and this problem will undoubtedly intensify in the difficult years ahead. Devising such a system might, of course, be a complicated exercise but, as the last few months have taught us, many things hitherto assumed to be impossible are now, after all, possible.

Tribute to a great sentencing conference – 21 years on

Writing in a very recent post about Professor Cyrus Tata’s fantastic new book, Sentencing: A Social Process reminded me of a great sentencing conference he and his colleague Professor Neil Hutton organised exactly 21 years ago at Strathclyde University in Glasgow. It was, to the best of my knowledge, the first major international conference on sentencing, in recent history at least. How many attendees they initially hoped to attract I don’t know, but they must have been gratified when more than 120 turned up from all over the world. People came from several continental European countries, the United States, Australia, Canada, China and, of course, from many parts of Britain itself.

During that three-day conference in June 1999, we had an extraordinary array of lectures, presentations, seminars and discussions on all aspects of sentencing, many of them given or led by top international scholars in the field. A selection of the papers delivered was later published in book form: Tata and Hutton (eds), Sentencing and Society: International Perspectives (Ashgate, 2002). It is still available from Amazon in kindle, hardback and paperback forms, and well worth having because it has so many contributions of enduring value. Of course, there was a social side as well. I recall one particularly enjoyable evening at Babbity Bowster, a great Glasgow institution I would never fail to revisit when given the opportunity. Throughout the conference, we were treated with great hospitality, and the general atmosphere made it a tremendously enjoyable as well as a highly instructive event.

The conference had far-reaching results in some important ways. Before that, most of us had probably heard of one another and, as already mentioned, the attendees included some leading scholars with whose work we would all have been familiar. But the conference gave us an opportunity to get to know one another. Many of us have remained in contact ever since. There was a second such conference in 2002, also in Strathclyde, and that, if I recall correctly, was even better attended. However, as a result of the 1999 conference, what started as a small group of us began to meet for informal seminars once or twice a year in different locations throughout Europe. We now meet mainly as a specialised group of the European Society of Criminology, and our number has grown to more than 100. Over the years, we have had great meetings at Strathclyde itself, Leiden, Oxford, Dublin, Barcelona, Como, Reims and elsewhere.

Let me just mention two further aspects of the 1999 conference, one with an Irish dimension, the other of more universal application.

On the first afternoon of the conference we had a presentation on the Scottish Sentencing Information System which had just then been established. Neil and Cyrus, working in close collaboration with senior members of the Scottish judiciary, had played a leading role in its development. The idea was to provide judges, by means of an easily searchable computerised data base, with reliable information on existing sentencing practice for the more commonly prosecuted offences. It occurred to me that something similar might be useful in Ireland and so, on my return, I began to canvass the views of judges, government officials and others. It took a long time to get anywhere with it, but eventually, thanks largely to the energy and enthusiasm of Judge Susan Denham, later Chief Justice, a steering committee was put together. We managed to get some funds, very limited it must be said, but better than nothing and, to cut a long story short, the Irish Sentencing Information System was established. I was rather chuffed at being able to suggest that it should be called ISIS. She, after all, was the ancient goddess of life and magic but, for reasons readers will understand, that abbreviation had to be quietly dropped in later years. Cyrus Tata gave us great help in establishing the system and came to Dublin for meetings on a few occasions. For an excellent account of the system while it was operating, see Brian Conroy and Paul G Gunning, “The Irish Sentencing Information System (ISIS): A Practical Guide to a Practical Tool” [2009] Judicial Studies Institute Journal 37-53. The Judicial Council Act 2019 now provides for the establishment of a Sentencing Guidelines and Information Committee. So, it took 20 years, but when God made time he made lots of it.

Something else I took away from the 1999 conference was a renewed appreciation and understanding of the value of comparative law. Most of the attendees had already published on sentencing in their own jurisdictions. Reading some of that work, especially from faraway countries, one might be inclined to conclude that it had little relevance to one’s own system. However, when a group of people from different parts of the world are gathered together in a seminar room or a pub, or huddled together during a coffee beak, it quickly becomes apparent that, despite structural, procedural, linguistic and terminological differences, we are all grappling with the same fundamental questions: Why punish offenders? What range of sentencing options should be available to the courts? How much discretion should judges have? What are the most essential distributive principles of sentencing? Is there a role for formal guidelines? Issues like these may not be common to all mankind (in the words of Justinian’s Digest), but they are of central importance in most countries. This, of course, is the key insight of the functional theory of comparative law which eschews comparison of formal legal texts in favour of examining how similar practical problems are addressed in different countries.

This brings me to what was meant to have been a retirement project, except that retirement did not happen quite as planned (I am still around NUI Galway like a bad penny). However, the project remains live and it is a book to be entitled A Common Law of Sentencing. Courts throughout the common-law world, and often beyond it, apply the same general sentencing principles, although they may differ in emphasis and scope of application. What I aim to do in the book is bring together key extracts from 30 to 40 leading cases from different jurisdictions illustrating those principles, with a commentary on each. The criteria for selection are that the case should provide a clear and authoritative statement of the relevant principle, preferably accompanied by a critical analysis, and that it should crystallise the law rather than merely provide a litany of earlier precedents. The project is at an early stage of development. Right now, Canada is leading the field in terms of selected cases. There is one sure Irish candidate, Deaton v Attorney General [1963] I.R. 170, but there will certainly be others. Once my old hunting ground, the IALS on Russell Square in London, re-opens I will be back prowling among its superb collection of printed law reports looking for inspiration. However, it would be great to have some material (which can be translated) from continental European countries as well, or even from further afield. Suggestions about cases that might be included, from common-law jurisdictions and elsewhere, will always be welcome.

So, if big, if belated, thank you to Neil and Cyrus for having organised such a wonderful conference that had such enduring results, and to all who attended back in those days before we ever heard of social distancing.

Finally, you might ask if we could have a similar conference in Ireland. Well, on that score, there is bad news and good news. The bad news is that I had been planning a conference, admittedly on a much smaller scale, in Galway in spring of this year. It was to have concentrated on sentencing guidelines, because of the aforementioned Judicial Council Act, and would have had some superb contributors who had kindly agreed to partcipate. However, it had to be cancelled for obvious reasons. The good news is that it will take place, hopefully in the not-too-distant future, once life is back to normal, or something close to it. In my undergraduate days (roughly around the time of the Beatles’ last LP), the Dean of the Arts Faculty used to comfort us before examinations with the advice that “there is no such thing as failure, only success deferred.” So, roll on a vaccine!

More on jury trial during pandemic

There have been a few earlier posts here on jury trial and how it might function during the present pandemic. However, readers will be interested to know that Mark Coen (our leading expert on all matters connected with juries and jury trial) has a great blog post “Trial by Jury in a Pandemic” which deals with several legal and practical aspects of the matter. It can be accessed at https://tcdlaw.blogspot.com/2020/07/trial-by-jury-in-pandemic.html. Incidentally, the blog on which he published it is part of a TCD initiative entitled “Covid-19 Law and Human Rights Observatory” which is always worth consulting from time to time because it has many very good and interesting contributions.

A new book on sentencing by Cyrus Tata

David Downes once described criminology as a rendezvous subject, meaning that it is a crossroads at which several different disciplines meet. The same holds true of sentencing – which some might see as a sub-discipline of criminology. Sentencing scholarship, viewed in its totality, consists of contributions by sociologists, philosophers, lawyers, psychologists, political scientists, economists, historians and, of course, criminologists (though many of them will have started life in one of the other disciplines). I have often been inclined to think of sentencing as an estuary into which many different rivers – law, sociology and other disciplines – flow. On reflection, however, this fluvial metaphor is not entirely apt because, while all these disciplines make great contributions to sentencing scholarship, they seldom mingle very well, and sometimes not at all. The sheer volume of research being produced within the various disciplines makes it almost inevitable that each of us must, reluctantly or otherwise, stay largely within the confines of our own. Yet, if we are serious about what we do, we must at times be willing to cross boundaries and explore other disciplinary and intellectual perspectives. After all, every once in a while, a work appears that mounts a robust challenge to some of our most fundamental assumptions about sentencing. Cyrus Tata’s new book, Sentencing: A Social Process. Re-thinking Research and Policy (Palgrave Macmillan, 2020) is one such work.

At one level, this book may be situated within a body of scholarship that treats sentencing primarily as a process or a social practice. John Hogarth’s Sentencing as a Human Process (University of Toronto Press, 1971) was a major, pioneering work that investigated the sentencing behaviour of magistrates, largely through a series of in-depth interviews with a selection of them. It devoted several chapters to the manner in which judges (magistrates) interpret information furnished to them as part of the sentencing process. More recently, a much-cited book chapter by Neil Hutton (a colleague of Cyrus at Strathclyde Law School) adopted Pierre Bourdieu’s notion of habitus as a conceptual framework for the purpose of “understanding the sociological distinctiveness of sentencing as a form of legal decision making” (Hutton, “Sentencing as a Social Practice” in Armstrong and McAra (eds), Perspectives on Punishment: The Contours of Control (Oxford University Press, 2006), chap. 9). Viewed in the context of more conventional legal theory, Cyrus’s book may be interpreted as offering an “external” critique (of sentencing decision-making in this instance) in contradistinction to the “internal” point of view championed by H.L.A. Hart in The Concept of Law which is essentially about trying to understand the law from the perspective of those who participate in the practice of it, and who accept the practice. See, for example, Grant Lamond’s essay “Methodology” in the even more recently published Cambridge Companion to the Philosophy of Law (2020), p. 21. Having said this, Cyrus is also, to a significant degree, offering an internal perspective, something he is admirably qualified to do because of the considerable amount of empirical research he has conducted during the past 25 years on several aspects of the criminal justice system including sentencing (in particular), legal aid and judicial support systems.

Sentencing: A Social Process is a fairly short book (about 170 pages) but it is a rich and intricately argued piece of work. All I can do here (and this is not intended as a review, just a description) is to dwell on a few of its more salient features. The book does not set out to provide a detailed blueprint for an ideal sentencing system. Rather its purpose is to offer a sustained critical analysis of how sentencing decision making is conceived and represented. Cyrus starts by identifying two major trends in modern sentencing scholarship – what he calls the legal-rational tradition and the judicial defensive tradition. The main concern of the legal-rational approach is to promote a sentencing system imbued with values such as fairness, equality and consistency. This, in turn, calls for judicial sentencing powers to be limited and structured through, for example, the adoption of guidelines. The judicial defensive tradition treats sentencing as an exercise in practical wisdom which judges, by virtue of their training, experience and expertise, bring to bear on the facts of each specific case. Proponents of this view typically believe that sentencing judges should be conferred with fairly extensive discretion and allowed to get on with the job. Cyrus argues, quite convincingly, that both of these traditions share a common premise or assumption which he calls autonomous individualism.

This notion of autonomous individualism and its deficiencies as an explanatory tool form a connecting theme throughout the book. As used in the book, the term applies in at least three different contexts. First there is the idea of the sentencing judge as an autonomous individual, and we shall return to that. Secondly, other professionals, such as lawyers and probation officers, who deal with defendants at various stages of the process usually work in isolation from one another and, to this extent, see themselves as autonomous individuals. Thirdly, the facts of a case tend to be atomised (although he does not use that term) in the sense of being presented as discrete autonomous factors to which rules and principles can be applied in order to arrive at an appropriate sentence. Instead, Cyrus argues (p. 4) that sentencing is “interpretive, processual, relational and performative.” He is certainly right to stress that it is “processual” because all too often it is imagined as solely a judicial task, something that begins and ends with the judge, again an autonomous agent. Yet, as he writes (p. 59):

“The sentencing agenda is to a considerable degree pre-determined and shaped by non-judicial actors. If it is the case that since sentencing (rather than the determination of guilt) is the key decision of the court which all actors build towards, then it means that we should see the reality of sentencing work as a multi-professional, multi-disciplinay collaborative process.”

This is an argument that some of us have long been making, but Cyrus presses it further than anyone has done before. To phrase the matter in simple terms, sentencing is one point along a continuum (the criminal process) that is punctuated by key decisional moments or episodes most of which are discretionary in nature, and the outcomes of which will strongly influence, if not determine, what sentence, if any, is ultimately imposed. Earlier decisions on, for example, prosecution, charge and mode of trial will shape the task and the decision of the sentencing judge. Further, in performing that task, the judge will often be provided with information or advice, which may (or may not) prove influential, in the form of professional reports from probation officers, psychologists and others. And then, of course, there is the input of counsel, and especially defence counsel who will make a plea in mitigation. Nor is sentencing always, or even commonly, the end point of the continuum. Others must take responsibility for implementing the sentence and they, too, are often empowered to exercise discretion. Thus understood, sentencing is, as Cyrus reiterates throughout this book, a truly collaborative exercise.

The various decisions that influence or determine the sentence ultimately imposed (and perhaps the implementation of that sentence) are made by a range of professionals including lawyers, judges, probation officers and expert witnesses. Those of us who describe ourselves as professionals seldom pause to reflect on what exactly a “profession” is. In fact, there is an extensive academic literature on the topic and Cyrus has mastered it very thoroughly, as reflected in Chaps 4 and 5 of the book. (These chapters will be of great interest to any lawyer, irrespective of their specialism, wanting to reflect on the social and ethical dimensions of their calling). Two conceptions of “profession” are identified, the trait model and the proprietorial control model. The trait model focuses on the characteristics of professionalism such as educational and training requirements, competitive entry, being subject to regulation, and expertise in applying abstract or specialised knowledge to concrete cases or factual matrices. The proprietorial control model, as the name suggests, is more concerned with “owning” an occupation or area of work. Viewed from this perspective, professionalism also involves controlling the relationship between facts and rules. Chapter 5 of this book, entitled “The Humanising Work of the Sentencing Professions: Individualising and Normalising” has many important insights into how the various professions work to present, as far as they can, an ideal defendant for sentencing. I found particularly interesting what Cyrus had to say about remorse. As he notes, much of the academic literature on this topic concentrates on how to identify true remorse. Yet the presence, or even the expression, of remorse can also operate to validate or legitimate the imposition of punishment. The sentencer can take comfort, as it were, from the defendant’s remorse as a justification for inflicting the suffering or deprivation that the sentence entails.

This book, for the most part, is written in a very condensed style that demands concentration, but the effort is always well worthwhile because of the paradoxes exposed and the insights offered. However, Chap. 6 is written in an entirely different register and that, I suspect, is because it was written with some passion. The chapter is entitled “The Rise of Technology and the Demise of the Sentencing Professions?”. Two pieces of background information are necessary to understand the argument made in this chapter. First, back in 2005, the sentencing world was taken by storm with a book by Norwegian criminologist, Katja Franko Aas, entitled Sentencing in the Age of Information: From Faust to Macintosh (London, 2005). Her argument was broadly within the new penology and actuarial justice schools of thought. Essentially, she was lamenting the decline of individualised justice and judicial discretion and their replacement with various technology-based strategies that were preoccupied with segmented data. Jacqueline Tombs took up this theme is another important contribution (“Telling sentencing stories” in Carlen (ed), Imaginary Penalties (Willan Publishing, 2008). The second background issue relates to the development of the Scottish Sentencing Information System (SIS) which was undertaken on the initiative of senior members of the Scottish judiciary in the early 1990s (and described by Cyrus, who had a key role in it, in this book and elsewhere). The SIS rightly attracted wide international attention and admiration and was, indeed, the model for the Irish Sentencing Information System while it lasted. Its value lay, first, in the large number (many thousands) of previous sentencing decisions that were analysed in depth and, secondly, in the various levels at which the system could be interrogated by judges. Rather than merely providing raw data on, for example, the number of sentences of a specified level of severity previously imposed for a given offence (though it did that too), it allowed users to dig deeper and get a full account of each case. This was vitally important. Knowing the ultimate sentence imposed in any case is of little value unless one also knows, for example, if the offender was being sentenced simultaneously for several offences, if he or she had a criminal record and, if so, for what, and other relevant matters.

The arguments made by Franko Aas, Tombs and others were, of course, very good ones as far as they went. Indeed, they are probably even more relevant today with the growing use of algorithm-based decision making within the criminal justice system, about which there is now a voluminous academic literature. However, both Franko Aas and Tombs had pointed to the SIS as an instance of the phenomenon they were describing and criticising. In a powerfully written chapter (6) of this book, Cyrus rebuts this argument with tremendous clarity and persuasiveness. First, the SIS was intended to be descriptive rather than normative in nature. Secondly, and most importantly for the purpose of his argument, the SIS presented “whole case” accounts rather than a set of fragmented, decontextualized data. This chapter should be required reading for anyone engaged in the development of sentencing guidelines in this jurisdiction.

I will just pick out a few other important points made throughout in this book, including in the final chapter which recommends new directions in policy and research. It observes that the neat distinctions we tend to draw between discretion and rules, and rules and facts, are often illusory. Rules often phrased in an open-ended way that invites the exercise of discretion by including terms such as “reasonable” or “dangerous”. As to the distinction between rules and facts, Cyrus writes (p. 76):

“The rule depends on the context in which it is implemented: the specific case facts. So naturally one turns to the case “facts”, only to find that what count as “the relevant facts” depend on “the legal rule“. Thus, the scholar of decision-making is required continually to shuttle between the two (the rules and the facts), unable to apprehend what determines the decision.”

The many valuable recommendations made in the final chapter include a plea for much greater concentration on “typified whole case stories”; the need to rethink the concept of “efficiency” given that the output of the justice system is, by definition, justice and this should take precedence over case processing and management; the need for a deeper empirical understanding of decision-making; taking the concept of imprisonment as a last resort seriously which means that the seriousness of the current offence should be the sole criterion; rethinking legal aid in a way that would reward defence lawyers for helping offenders to exit the criminal justice system, mainly by referring them to agencies that can assist with the social and personal problems that have contributed to the offending behaviour.

Meanwhile, those of us who are “old and grey and full of sleep, and nodding by the fire” will probably continue to pursue the legal analytical approach, concentrating on sentencing law and practice, and the policies underpinning it. But the good news is that there is a growing cohort of young scholars, in Britain in particular, who are now doing and will continue to do fantastic work in bringing sentencing research to a new level. Then there are initiatives such as the Sentencing Academy (https://sentencingacademy.org.uk) which is dedicated to informing public debate about sentencing and creating a bridge between sentencing experts, policy makers and the public in England and Wales. Back in those halcyon days before Covid-19, I attended a great seminar hosted one evening by the Academy at University College London on “Sentencing Reform in the New Parliament.” Actually, it was only last January, but as Louis MacNeice might say, if he were still around, it now seems “so unimaginably different and all so long ago.”

These younger scholars will find much to inspire them in Cyrus’s book. But so will everyone working in the field. All too often, in our enthusiasm to suggest how the sentencing system should be “fixed”, we neglect to consider the true inner nature and collaborative quality of the decision-making process we are aiming to improve. Sentencing: A Social Process is a great book which should, and doubtless will, encourage all of us to reflect more deeply on this fundamental issue.

UK Supreme Court dismisses appeal in “paedophile hunter” case

In Sutherland v Her Majesty’s Advocate (Scotland) [2020] UKSC 32, the UK Supreme Court dismissed an appeal by a convicted sex offender who claimed that the manner in which evidence of his conduct had been obtained by a paedophile hunter group and then used by the public prosecutor violated his rights under Article 8 of the European Convention on Human Rights (ECHR). The judgment is important for what it has to say about the scope of Article 8 and the relevance of Article 17 of the ECHR. The issue in the case is neatly summarised in Para. (1) of the judgment:

“This case concerns the use in a criminal trial of evidence obtained by members of the public acting as so-called “paedophile hunter(“PH”) groups, and whether this is compatible with the accused person’s rights under article 8 of the [ECHR]. PH groups impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police.”

The sequence of events forming the background to the case followed a very familiar, indeed now almost universal, pattern. The appellant (S) went on to an internet site (Grindr in this instance) and made contact with a person who claimed to be a 13-year-old boy although, in fact, the person was an adult decoy. S sent a sexually explicit photograph of himself to this person, and eventually arranged to meet. When he arrived at the appointed place (believing he was to meet a 13-year-old), he was confronted and detained by members of the PH group, and handed over to the police. The confrontation between members of the PH group and S was broadcast live on Facebook and later posted on other social media.

The offences of which S was convicted included “meeting a child following certain preliminary contact” contrary to s. 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 which is very similar to the offence created by s. 7 of our Criminal Law (Sexual Offences) Act 2017. In respect of each offence in S’s case, the charge was one of attempt because he believed, wrongly as it transpired, that the person with whom he was in contact was a child. As noted in a previous post on this blog “Meeting a child for the purpose of sexual exploitation” (May 5, 2020), the same would probably apply here. I watched most of the Supreme Court hearing of this appeal on the internet and one interesting point to emerge was that in Scotland there has been an extraordinary high number of prosecutions resulting from detection by PH groups.

Counsel for S, if I remember rightly, had accepted that there was no entrapment in this case (presumably because the detection had not resulted from police action) but he did claim that it amounted to impermissible “virtue testing.” The Supreme Court held categorically (at [16]) that entrapment was not an issue in this case. It made no reference whatever to virtue testing (a topic that was analysed by the Canadian Supreme Court in R v Barnes [1991] 1 S.C.R. 449).

The appeal to the Supreme Court in this case was based on two compatibility issues as certified by the Scottish High Court. These were:

1. Whether, in respect of the type of communications used by the appellant and the PH group, article 8 [of the ECHR] rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and

2. the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime.”

Article 8(1) of the ECHR states:

Everyone has the right to respect for his private and family life, his home and his correspondence.

Article 8(2) then provides that “[t]here shall be no interference by a public authority with the exercise of this right” unless the interference is in accordance with law and necessary in the interests of national security, the prevention of crime, “the protection of the rights and freedoms of others” and so forth,

Was Art. 8(1) of the ECHR engaged by the facts of this case?

Whenever a person claims to have suffered a violation of Art. 8 (or, for that matter, of Art. 9, 10 or 11 each which has the same structure as Art. 8), a court, whether a national court or the European Court of Human Rights (ECtHR), will begin by asking if the matter complained of comes within the purview of Art. 8. If satisfied that there appears to have been a breach of the Article, the court then proceeds to consider if the impugned act or omission was nonetheless justified, or at least permitted, by virtue of Art. 8(2). It is not uncommon for the answer to both questions to be “yes”, in which case no violation will be found. Sutherland, however, was one of those cases where the Supreme Court did not accept that there was any interference with S’s rights under Art. 8(1) at any stage of the criminal proceedings or, indeed, before they began. The Court stressed that what Art. 8 guarantees is the right to respect for private and family life, etc. S’s conduct did not merit such respect. Lord Sales, with whose judgment all other members of the Court agreed, said (at [31]):

“In my judgment, there are two reasons why the appellant’s rights under article 8(1) in relation to respect for private life and respect for his correspondence were not interfered with in the circumstances of this case: (i) the nature of the communications from the appellant to the decoy, whom he believed to be a child, was not such as was capable of making them worthy of respect for the purposes of the application of the ECHR; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications, with the result that he enjoyed no relevant protection under article 8(1) as regards their disclosure to and use by the [prosecutor] and the other public authorities referred to above.”

The Court then dwelt on the positive obligation imposed by the ECHR on states parties to have effective measures in place for the prevention and criminalisation of sexual violence, abuse and exploitation. This is reflected in leading ECtHR judgments such as X and Y v The Netherlands (1986) 8 EHRR 235. In fact, it is the rights of victims and potential victims under Art. 8 (and also perhaps Art. 3) that mandate such positive measures. In this case, S’s conduct amounted to a clear violation of a Convention right of an intended victim and, as such, it did not merit protection. In this connection, the Court referred to Art. 17 of the ECHR, an article we seldom hear very much about, but which provides:

” Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

In Lawless v Ireland (No.3) (1979-1980) 1 EHRR 15, the ECtHR had said:

“… the purpose of Article 17, in so far as it refers to groups or individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity, or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention .”

(See Emmerson, Ashworth and Macdonald, Human Rights and Criminal Justice, 3rd ed. (London, 2012), pp 147-148 et passim, which has a good discussion of Art. 17).

Art. 17 seems designed to deal with precisely the kind of situation that arose in Sutherland where a person claims Convention protection in respect of conduct that clearly violated, or had the potential to violate, the rights of others.

In Sutherland, Lord Sales concluded (at [40]) that “the reprehensible nature of the communications [between S and the decoy] is such that they do not attract protection under article 8(1). They do not involve the expression of an aspect of private life or an aspect of correspondence which is capable of respect within the scheme of values inherent in the ECHR.”

In light of this conclusion, there was obviously no need to consider Art. 8(2) which deals with permissible limitations on the right to respect for private life where a prima facie violation of Art. 8 has been found.

Although the Supreme Court did not draw this comparison, the idea that certain communications are inherently unworthy of respect or protection under Art. 8 of the ECHR bears some similarity to decisions of the US Supreme Court to the effect that certain kinds of expression, by virtue of their content, do not merit protection under the First Amendment which provides, in unqualified terms, that no law shall be enacted abridging freedom of speech or of the press. The US Supreme Court has so held in relation to child pornography, among other things. See, for example, New York v Ferber 458 U.S. 747 (1982).

Did S have a reasonable expectation of privacy?

Both the UK Supreme Court and the ECtHR have accepted that in interpreting the concept of private life in specific contexts, it is often relevant to ask if the applicant had a reasonable expectation of privacy. See, for example, Benedik v Slovenia (Application No. 62357/14. ECtHR 24 April 2018). In Sutherland, the Supreme Court had no hesitation in finding that S had no such expectation: “He could not reasonably expect that, where his messages constituted evidence of criminal conduct on his part, the recipient would not pass them on to the police.” [58].

Use by public prosecutor of material supplied by PH group

The second certified question related to the extent to which the use by a public prosecutor of material furnished by a PH was compatible with Article 8. The Supreme Court said that it could deal briefly with this issue, as indeed it did. Essentially, it held that since S’s Art. 8 rights were not violated in the first place, he could scarcely complain about the use of the material in the investigation and prosecution of the offences with which he was charged. The Court’s reasoning is encapsulated in these two passages:

“Clearly, therefore, in this case the state had no supervening positive obligation arising from article 8 to protect the appellant’s interests which would impede the [prosecutor] in any way in making use of the evidence about his communications with the decoy to investigate or prosecute in respect of the crimes he was alleged to have committed. On the contrary, in so far as positive obligations under art. 8 were engaged, the relevant positive obligation on the [prosecutor], as a public authority, was to ensure that the criminal law could be applied effectively so as to deter sexual offences against children. Contrary to the appellant’s argument, article 8 has the effect that the [prosecutor] should be entitled to, and indeed might be obliged to, make use of the evidence of the communications with the decoy in bringing a prosecution against him.” [64].

“Further, even where article 8 is applicable, a contracting state has a margin of appreciation as to how to strike a fair balance between the competing interests which are in issue. Since, in the present context, the state has a positive obligation to operate an effective criminal law regime to deter and punish persons who threaten to harm young children, there is no doubt that the use by the [prosecutor] of the evidence provided by the decoy for the purposes of the prosecution of the appellant under that regime involved no breach of any positive obligation owed to the appellant” [67].

Other issues that arose in the Scottish High Court

The Supreme Court agreed with two other findings by the Scottish High Court, even though they did not fall be determined in this appeal. First, even if there had been a breach of Art. 8, the use of the evidence provided by the decoy would have been justified under Art. 8(2). Secondly, even if a violation of Art. 8 had been found, it would not follow that the conviction should be quashed. Evidence obtained in breach of Art. 8 may still be used in criminal proceedings without any consequent breach of Art. 6 which guarantees the right to a fair trial. As the ECtHR has repeated held, when a breach of Art. 6 is alleged, the question is whether the proceedings, viewed in their totality, were fair. This is something we are apt to forget. It is not a question of holding, as might be true under a domestic constitutional regime such as our own, that once evidence is obtained in a certain way it should be excluded, and failure to exclude may justify quashing a conviction. Under the ECHR, the use of evidence obtained through torture, contrary to Art. 3, would render a trial unfair, but that would not necessarily (or even predominantly) be true of evidence obtained in breach of Art. 8. The convicted person might be entitled to a remedy, typically monetary compensation, for the breach of Art. 8, but that would not imply a breach of Art. 6.

Comment

The outcome of this appeal was scarcely surprising. What is, however, remarkable is the absence of any reservations on the part of the Supreme Court about the activities of PH groups, despite their prevalence throughout the United Kingdom (as the Court noted) and elsewhere. At no point did the Court expressly validate or endorse their activities but, on the other hand, it left no reason to doubt the entitlement of police and prosecutors to avail themselves of evidence collected by PH groups in investigating and prosecuting sexual offences and attempted sexual offences against children. One need only read the final sentence of Para. 67 (quoted above) where the Court unambiguously held that the use by prosecutors of materials provided by decoys involved no breach of any positive obligation owed by the State to accused persons. In fact, Para. 64, also quoted above, suggests that they might be obliged to use the evidence once it was furnished to them.