The Integrity of Criminal Process

From Theory into Practice

Jill Hunter, Paul Roberts, Simon N M Young, David Dixon, Jill Hunter, Paul Roberts, Simon N M Young, David Dixon

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782255727
• Edition: 1
• Topic: Droit
• Subtopic: Procédure pénale

Criminal proceedings, it is often now said, ought to be conducted with integrity. But what, exactly, does it mean for criminal process to have, or to lack, 'integrity'? Is integrity in this sense merely an aspirational normative ideal, with possibly diffuse influence on conceptions of professional responsibility? Or is it also a juridical concept with robust institutional purchase and enforceable practical consequences in criminal litigation? The 16 new essays contained in this collection, written by prominent legal scholars and criminologists from Australia, Hong Kong, the UK and the USA, engage systematically with - and seek to generate further debate about - the theoretical and practical significance of 'integrity' at all stages of the criminal process. Reflecting the flexibility and scope of a putative 'integrity principle', the essays range widely over many of the most hotly contested issues in contemporary criminal justice theory, policy and practice, including: the ethics of police investigations, charging practice and discretionary enforcement; prosecutorial independence, policy and operational decision-making; plea bargaining; the perils of witness coaching and accomplice testimony; expert evidence; doctrines of admissibility and abuse of process; lay participation in criminal adjudication; the role of remorse in criminal trials; the ethics of appellate judgment writing; innocence projects; and state compensation for miscarriages of justice.

1

A Public Law Conception of Integrity in the Criminal Process

SIMON NM YOUNG^*

Introduction

Integrity has become a prominent theme in current discourse on the criminal process. It is referred to in cases involving police or prosecutorial misconduct. Courts increasingly make reference to integrity as a ground for ordering relief against and for the government. Integrity lies at the heart of the entrapment and abuse of process doctrines. What more can be expected of the integrity principle will depend on a proper understanding of its scope and meaning. The principle is said to be ‘an influential but also a puzzling principle of criminal justice’.¹ What is the relationship between integrity and human rights? And what is its relationship to notions such as public confidence in the administration of justice, disrepute, accountability and legitimacy? Does it mean anything more than having minimum standards of conduct (and if so, when and in what context), and again is this anything different from a rights-based approach to criminal process? Does it refer to having coherence in the system and if so, coherent by what underlying premises?

This chapter further explores the principle of integrity with reference to the views expressed by courts and scholars. It assesses whether the principle has relevance outside the stay of proceedings and exclusion of evidence cases, as a general and defining element of criminal process. I begin the chapter by reflecting critically on existing literature and case law on integrity theory which fit schematically around six characteristics. In the second half of the chapter, I construct a new way of thinking about integrity from an institutional perspective that may help to explain what courts and public officials do in practice. The new approach brings together ideas about judicial review, abuse of process and prosecutorial discretion. I argue that public law and judicial review concepts can be used to understand the stay and exclusion cases. From this survey of the landscape comes a broadly encompassing institutional approach to integrity in criminal process that springs from the concept of overriding public interest.

1.Reflections on Integrity Theory Literature

(a)Integrity of ‘The System’, Rather than of the Individual or Office

Most writings refer to the principle of integrity in relation to the criminal justice system as a whole.² This is consistent with how common law courts have used the principle.³ However, there is a need to explain why pre-trial misconduct by police might matter for the judge in his or her conduct of the trial. If the judge and police are conceived as being part of a single system (which they no doubt are) then for the judge to ignore or appear to condone the police misconduct puts the system in a self-contradiction.⁴ Andrew Ashworth suggests that in this situation the judge excludes the evidence or stays the proceedings to achieve coherence and maintain the moral authority of the system.⁵ Antony Duff et al refer to ‘integrity as integration’ in the sense that ‘the normative validity of the trial rests on the validity of the state’s conduct pre-trial’.⁶

But it might be said that the notion of integrity ‘of the system’ was a fiction invented in response to the separation thesis (so powerfully articulated in R v Sang) prior to the rise of domestic human rights law, as we now know it.⁷ This approach is supported by the view that the abuse of process doctrine developed from reactionary judicial thinking that assumes a greater role than Sang allows for upholding the rule of law. Court-enforced ‘respect for the rule of law’ is a practical means to achieve coherence in a legal system founded on the rule of law.⁸ One wonders whether resort to the integrity principle would have been necessary had human rights law been established earlier.⁹ Once fundamental rights, both pre-trial and trial rights, can be directly invoked in the criminal trial proper, the judge must necessarily pay attention to the pre-trial conduct of other agencies, irrespective of the integrity principle.

Rarely is the integrity principle defined from the standpoint of an individual’s character or integrity, or the integrity of a particular office—which is probably more in line with the ordinary usage of the word integrity. Ashworth provides an exception. He describes two varieties of the principle, the first concerns the integrity of the system and coherence, and the second is the ‘principle of judicial integrity’, compromised where the judge acts ‘on the evidential and procedural results of a violation of a fundamental right’ and thereby becomes complicit in the violation.¹⁰ Ashworth treats the two variations of the principle as having much in common, but does not explore the second variation in greater depth or beyond the judicial office.¹¹ In contrast, a 1993 Ontario report on pre-trial criminal matters conceives the integrity of the each of the main participants in the criminal trial process as being essential to the functioning of the justice system.¹² ‘Judicial integrity’ is also described as the original reason for the US Supreme Court to adopt the exclusionary rule for federal criminal proceedings in its 1914 decision, Weeks v United States.¹³

(b)Close Association with Rights Thesis

Ashworth confines his analysis of the integrity principle to breaches of fundamental rights and does not explore whether the principle could be engaged outside of rights discourse or ever be used to justify restrictions on rights.¹⁴ Others have noted the more expansive potential of the integrity principle, as being able to explain responses to misconduct short of rights violations.¹⁵

Rarely is it contemplated that the integrity principle could be invoked to limit rights or otherwise work against the interests of a defendant or suspect. As Duff et al note ‘when it applies it frustrates, or at least tends to frustrate, conviction’, and since ‘[s]omething very significant is thus lost’, they argue to keep the application of the principle narrow.¹⁶ But it is not implausible to speak of restricting a person’s rights or opportunities in order to protect the integrity of the legal system, especially when threatened with possible abuse, for example, collateral challenges that disrupt trial proceedings.¹⁷ Another illustration, from Canadian bail law, is what is known as the tertiary ground for denying bail where ‘necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances’.¹⁸ A bare majority of the Supreme Court justices held that the power did not infringe the right ‘not to be denied reasonable bail except for just cause’ under section 11(e) of the Charter of Rights and Freedoms.¹⁹ The majority recognised the issue as being closely related to judicial integrity: ‘public confidence and the integrity of the rule of law are inextricably intertwined’.²⁰

(c)Narrow Focus on Judicial Power to Stay or Exclude

Academic discussion of the integrity principle tends to relate almost exclusively to the power of the court to exclude improperly obtained evidence or to stay proceedings for abuse of process. Thus reference is made to ‘judicial’ integrity²¹ and sometimes to prosecutorial integrity.²² But to be a defining element of the criminal process, integrity should have something to say more generally and specifically about the other actors in the criminal process. Consider, for example, the lay jury. What, if anything, does the integrity principle have to say about the role of the jury and the implications of jury misconduct?²³ Writings on the conduct of non-judicial actors tend to be from the perspective of ethics,²⁴ professional standards and even civility.²⁵

(d)No Consensus on the Significance of Public Confidence

Peter Mirfield helpfully identifies three forms of the integrity principle: (1) court-centred integrity where the judge applies ‘its own standards of propriety and decency’; (2) public conduct integrity where ‘attention is directed to the likely reaction of the general public, rather than to the court’s own standards’; and (3) public attitude integrity where ‘the court must seek to gauge how the public will respond in its attitude to the criminal legal system’.²⁶ The latter looks to the court’s assessment of public confidence in the system. Mirfield uses these three forms as descriptive tools without favouring any one over the others.²⁷ Ashworth, by contrast, is highly critical of the ‘public attitude’ of integrity, primarily because public attitude (in the form of public opinion) may favour positions contrary to fundamental rights.²⁸ It would also be antithetical to the rule of law for courts to be swayed by popular opinion in all situations.

However, Canadian Charter law has managed to apply a public confidence approach to integrity in its test for excluding unconstitutionally obtained evidence.²⁹ From its earliest case on the issue, the Supreme Court recognised that ascertaining the repute of the system from public opinion polls was objectionable.³⁰ The matter was to be assessed by the court objectively and from a long-term perspective.³¹ In its current position on exclusion, the Supreme Court has articulated a test that blends non-epistemic considerations (seriousness of Charter infringing conduct and impact on defendant’s rights) with more epistemic concerns (importance of having a trial on the merits).³² The Hong Kong Court of Final Appeal has articulated a similar balancing test that aims to ensure ‘the administration of justice is not brought into disrepute’, ‘public conscience is not affronted’ and ‘the integrity of the judicial system is not compromised’.³³ It was held that unconstitutionally obtained evidence could be admitted if ‘its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned [and] (iii) appears unlikely to encourage any future breaches of that, those or other rights’.³⁴

A growing number of scholars have noted the importance of public confidence in discussing the principle of integrity. Paul Roberts and Adrian Zuckerman argue that the moral legitimacy of a system of law requires that there be public confidence in and respect for the system.³⁵ If judges ‘routinely winked at rights violations … criminal proceedings would be tainted by the appearance of double standards, and the publi...