LawNews- Issue 39

Contents

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Do we need juries?

Before throwing out the institution of trial by jury, we should keep in mind that trial by professional judges is not necessarily a better alternative. A legal education does not give a person the wisdom of Solomon

very different from that of a jury in a criminal or civil trial and in many ways even more challenging.

Juries are often thought of as a quintessential institution of English law, just as the investigating magistrate is a quintessential institution of French law.

Most members of the public, even those who have never come into contact with the legal system, have a basic idea of what a jury is.

And the institution of the jury has often been romanticised as part of our national mythos. The right to trial by a “jury of one’s peers”, “twelve good men and true”, has historically been held up as a safeguard of the Englishman’s liberty. Many defenders of jury trial quote the famous words of clause 39 of Magna Carta: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

In fact, however, the use of jury trials in England and Wales today is rather limited. They are principally used in criminal cases, but juries decide only a small proportion of these. Many indictable offences are not in fact dealt with by a jury, for example, because the defendant pleads guilty prior to trial. In short, thousands of people every year are arrested, charged and convicted without ever seeing a jury.

Although juries were historically used in civil trials in England, the use of civil juries today is extremely limited. Many English civil lawyers go their entire careers without ever appearing before a jury. However, as a large proportion of my practice has involved actions against the police, I have more experience of civil jury trials than most lawyers do.

Coroners in England and Wales can also summon juries for inquests. Most inquests take place without a jury, but a jury is required in certain cases, such as deaths in custody and deaths caused by the police. The task of a coroner’s jury is of course

When we look beyond the UK to other parts of the Commonwealth, we see that the use of jury trials is inconsistent. Some Commonwealth jurisdictions, such as India, Singapore and South Africa, have abolished juries altogether. However, in the Commonwealth Caribbean, where I practise, trial by jury continues to be used for serious criminal cases.

The country most associated with jury trials today is the United States, where jury trials are used for both criminal and civil cases, and in both federal and state courts.

Prejudice and bias

Many people are deeply attached to juries as a safeguard of liberty and a bulwark against state power. However, others are sceptical. In recent decades, much of the criticism of juries has concerned questions of bias.

Many people are understandably concerned that when guilt or innocence is decided by 12 members of the public who bring their own prejudices to the table, they will treat some defendants less favourably than others. For example, you might reasonably assume an all-white jury might harbour some biases against a black defendant.

In fact, however, the evidence paints a mixed picture as to whether jury verdicts are racially biased or not. There is some evidence that they are not, and this was a key point in David Lammy’s review of ethnic minorities in the criminal justice system. But the point is debated.

However, bias is not the whole story. We don’t just want to know whether juries are biased against particular groups. We also want to know whether they’re getting it right. After all, a legal system that decided guilt or innocence by tossing a coin

When faced with a jury verdict, we don’t know whether they understood the law or the evidence properly, or whether their reasons made sense, or whether they based their decision on false assumptions

Professor Leslie Thomas KC

Continued from page 03

would also show no racial bias, but that doesn’t mean it would be getting the right answers.

And this is a much more difficult question to answer. We can measure empirically whether juries are more likely to convict members of particular groups. But we can’t measure empirically whether juries are making the right decisions. To state the obvious, we don’t have any objective measure of whether the people they are convicting are actually guilty or whether the people they are acquitting are actually innocent. And unlike judges, juries don’t give reasons for their decisions so we can’t assess the quality of their reasoning.

In deciding whether we need juries, we also have to look at the alternatives to jury trials. Even if juries are getting it wrong, it doesn’t necessarily follow that professional judges or lay magistrates who also have their own biases, prejudices and failings, would be more likely to get it right.

Jury selection

The first thing we want to look at is racial bias in jury selection. It’s interesting to contrast the systems in England and Wales with the very different systems in the United States.

The practice of allowing peremptory challenges to jurors, where either party can reject a certain number of jurors without providing cause, was abolished in England and Wales by the Criminal Justice Act 1988. This contrasts with the United States, where peremptory challenges to jurors are still allowed in the federal courts and in the courts of most states.

Although the Crown retains a traditional right to “stand by” a juror, the Attorney-General’s guidelines on the use of the standby power make clear that it is to be used only exceptionally, and only in national security or terrorism cases.

So, the parties in an English or Welsh jury trial have less ability to influence the composition of the jury than those in an American jury trial. However, both the prosecution and the defendant do have the ability to challenge jurors for cause, and the judge does have discretion to stand down a juror (for example, because there is an appearance of bias or because they are not competent to serve).

Up until the late 1980s, English judges did occasionally use their discretion to discharge jurors in such a way as to ensure that juries were multi-racial. However, the Court of Appeal held in 1989 that a judge has no power to do this (R v Ford [1989] QB 868). So, a defendant of colour has no right to be tried by a racially representative jury.

Let’s look at bias in jury selection. In the United States this is a familiar subject. In its 2021 report Race and the Jury: Illegal Discrimination in Jury Selection, the Equal Justice Initiative highlights data from a range of American federal and state courts showing evidence of racial disparities at all stages of jury selection.

Many American jury pools under-represent people of colour. And both peremptory challenges and challenges for cause

are often used disproportionately to exclude black jurors and jurors of colour. Although racial discrimination in jury selection is theoretically illegal, the Equal Justice Initiative argues that the legal tests laid down by the appellate courts have made it difficult to prove racial bias, and there continues to be a massive race disparity at every stage of the process.

It also reviews evidence from American studies suggesting that all-white juries are biased against black defendants.

But as we have seen, we can’t just read those findings across to England and Wales and assume that they apply here, because our juries are very different.

Diversity study

So, let’s turn to the English data. We’re going to start with Cheryl Thomas’ 2007 study Diversity and Fairness in the Jury System

For the purposes of discussing this study, I’m going to adopt Thomas’ own terminology when discussing race, including the use of the umbrella term “black and minority ethnic”, to accurately represent what the study shows. This is not necessarily the language that I would have chosen myself.

This study approached jury diversity and fairness in several ways. I’m just going to highlight a few headline points that are important for our purposes.

Thomas studied all stages of the jury selection process. In her survey of 84 Crown Courts, in all but two there was no statistically significant difference between the proportion of black and minority ethnic jurors summoned and the black and minority ethnic population in the court catchment area. There was also no evidence of disparity when broken down by ethnic group.

However, she did highlight that for the majority of Crown Courts in the country, the black and minority ethnic population in the court catchment area is below 10%, which means in practice there is little likelihood of black or minority ethnic jurors serving on a jury at these courts. In other words, all-white juries tend to happen at these courts not because the selection process is biased, but simply because of the demographics of the local population.

She also highlighted, however, that some courts with an overall low population of black and minority ethnic people did have high concentrations of ethnic minorities in some parts of their catchment area. So, in these areas a person of colour might well end up being tried by an all-white jury, not because the summoning process was biased but because of the overall demographics of the court catchment area.

Consistent findings

Thomas also looked at those who were actually selected to serve on a jury, as opposed to being disqualified or excused. She found in most of the 84 Crown Courts, the proportion of black and minority ethnic people serving on juries was generally consistent with the proportion of black and minority ethnic

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An AI trained to analyse a person’s body language might well misidentify a person with autism or PTSD as a liar because their body language might not match the programmers’ expectation of how a truthful witness behaves

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people in the court catchment area. There were only three Crown Courts where black and minority ethnic people were significantly under-represented on juries.

In addition to analysing the jury selection process, she also carried out a case simulation study using real jurors summoned to Blackfriars Crown Court, selected in the same manner that a real jury would be selected.

The case, which was based on a real case, involved a male defendant accused of punching a male victim in the face after a confrontation outside a bar. In real life, the case had resulted in a hung jury. The facts of the case were kept the same in each simulation, but the race of the defendant and the victim was varied to black, white or Asian. In some simulations the defendant was charged simply with assault occasioning actual bodily harm, while in others he was charged with racially aggravated actual bodily harm.

Thomas found that in the 54 separate jury decisions in the study, outcomes for the defendants were remarkably similar regardless of race. Whether Asian, black or white, the defendants were almost always either found not guilty by a majority verdict, or the outcome was a hung jury. Some racial disparities emerged in relation to how individual jurors voted, but these did not result

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in any racial disparities in the overall jury verdict.

Thomas carried out a second study in 2010, Are juries fair? In this study, she ran the same case simulation, but this time at two courts with a mostly white catchment area, Nottingham and Winchester. She found that the all-white juries in this study were not more likely to convict a black or minority ethnic defendant than a white defendant. This held true for both black and Asian defendants.

This methodology has two obvious limitations. First, it’s possible that jurors who know they are participating in a study might be less inclined to display racial bias than jurors in a real case, whose deliberations are secret. Second, Thomas’ case simulation concerned a case that resulted in a hung jury in real life, meaning it may not be representative of most cases that come before the courts.

That said, Thomas’ 2010 study also carried out a large-scale analysis of jury verdicts. She looked at all cases in all Crown Courts in England and Wales from 1 October 2006 to 31 March 2008, including over half a million charges. This data showed white and Asian defendants both had a 63% jury conviction rate, while black defendants had a 67% jury conviction rate. Thomas described this as a small difference, although it is notable that

Continued on page 06

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While we don’t know to what extent juries are racially biased, there is good evidence that judges are

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black defendants were slightly more likely to be convicted.

For the Lammy Review, Thomas’ research was updated, with analysis of over 390,000 jury decisions between 2006 and 2014. Again, this found very similar conviction rates across ethnic groups. White, black, Asian and mixed-race defendants were all convicted at rates of between 66% and 68%. Lammy was very enthusiastic about this. His report called juries a “success story of our justice system”.

Judges and magistrates

The Lammy review contrasted juries with judges and magistrates. Lammy cited a 2016 study by Hopkins et al which looked at racial disparities in Crown Court judges’ sentencing decisions.

Hopkins found that under similar criminal circumstances the odds of imprisonment for black, Asian, and Chinese or other offenders were higher than for white offenders. The disparity varied a lot between different offence types. It was particularly high for drugs offences, where black and minority ethnic offenders were 240% more likely to be sent to prison than white offenders.

Although the data was limited, the Lammy Review also found some racial disparities in magistrates’ courts verdicts. In particular, black and minority ethnic women were more likely to be found guilty than white women.

So, Lammy’s conclusions about jury trial were overwhelmingly positive. However, his approach to this issue has been criticised.

One powerful criticism is this. We know that there is massive racial disproportionality in terms of who ends up in the criminal justice system to start with. Black people are therefore more likely to end up before a jury than white people.

As Thomas herself highlighted in her 2007 study, black people from 2006-08 made up 14% of all jury verdicts, compared with 3% of the population. We could reasonably infer from this that black people are more likely to be falsely accused of crimes than white people, and therefore we might expect a genuinely fair trial process to have a lower-than-average conviction rate for black defendants, rather than a slightly higher one.

Lee Bridges argues that the Lammy Review’s approach “carries an implication that those making decisions at later stages in the process have no role or responsibility for seeking to redress unfair treatment of particular groups at earlier stages.”

There is also evidence that black and minority ethnic defendants are more likely to plead not guilty than white defendants, and are also more likely to be committed to the

Other bias

So, more research is needed on this subject. At this stage, we can’t be certain to what extent racial bias affects jury verdicts. However, we can probably at least say that there is more evidence of racial bias on the part of judges and magistrates than on the part of juries.

And it’s also important to note that racial bias isn’t the only kind of bias. For example, it’s often been alleged that juries’ gender biases affect the outcomes of rape trials.

In her 2010 study, Thomas argued that there were misconceptions in this area, pointing to the fact that other serious offences have lower jury conviction rates than rape.

But her study certainly isn’t conclusive on this question. Nor do we know to what extent juries are biased against LGBT people: for instance, we don’t know how the current wave of hostility towards transgender people in the UK might affect jury behaviour in cases with transgender defendants or victims. But again, we shouldn’t assume without evidence that professional judges are any less biased than juries.

The right answers?

Whether a tribunal is biased on the basis of race is not the same question as whether it is getting the answers right. The law reports reveal an instance in 1995 where a jury attempted to communicate with one of the victims of the offence by means of

on page 07

Crown Court for trial if charged with an offence triable either way. This, again, complicates the picture, because arguably Thomas and Lammy are not comparing like with like.

We don’t just want to know whether juries are biased against particular groups. We also want to know whether they’re getting it right

Photo: Comstock Getty Images

a Ouija board, and another in 1736 where the jury decided their verdict by “hustling half-pence in a hat”.

To state the obvious, neither of these methods is racist, but both of them are unreliable.

As explained earlier, there is no straightforward way to measure empirically whether juries are getting the right answers. We have data on how many people are acquitted and convicted. But, again to state the obvious, we don’t have data on how many people are actually guilty or actually innocent.

And unlike judges, juries don’t give reasons for their decisions. They don’t explain what they made of the evidence, or how they reached their conclusions. So, when faced with a jury verdict, we don’t know whether they understood the law or the evidence properly, or whether their reasons made sense, or whether they based their decision on false assumptions.

Understanding instructions

Nor do we know whether they fully understood the judge’s legal directions.

Thomas’ 2010 study, which we have looked at earlier, also investigated whether the jurors in her case simulations understood the legal directions they were given. She found that while most jurors thought the judge’s legal instructions were easy to understand, a majority in fact did not completely understand them in the terms used by the judge in his instructions.

For that matter, we don’t know whether jurors based their decision on whose counsel they found more attractive, or whether they just wanted to get the deliberations over with and go to the pub.

In her 2017 Blackstone lecture, Lady Justice Hallett recounted a 2003 fraud case at Southwark Crown Court where “a female juror sent to prosecuting counsel a bottle of champagne and an invitation to a dinner date with the question ‘what does a lady need to do to attract your attention?’”

Another concern is whether juries are influenced by the unattractive facts of a particular case.

For example, a jury might be thought to be more likely than a judge to be influenced by adverse publicity in a case involving a high-profile case or defendant.

In a case involving graphic sexual abuse, the jurors’ feelings of disgust may influence their decision-making. Or a jury might be unimpressed by a defendant who is relying on a technical defence to escape liability for acts of which the jury disapproves. All these arguments are raised by Penny Darbyshire, who in a

2014 article makes a powerful argument that defendants ought to be able to opt for a bench trial instead of a jury trial, as they can in some other common law jurisdictions.

Assessing credibility

In many trials, the trier of fact, whether it’s a jury, a judge or a bench of magistrates, has to assess the credibility of witnesses and decide between competing versions of events.

Where witnesses give different accounts, the trier of fact has to decide who is mistaken or who is lying. This is an inherently very difficult task. And the way that juries are currently expected to perform this task is not particularly effective.

For example, lawyers are trained to look for inconsistencies between a person’s evidence in court and their previous statements, and to use those inconsistencies in crossexamination to show that the person is lying. The assumption is that an inconsistent account is more likely to be a lie.

But in fact, we know that this is not true. There is an excellent article by Hilary Evans Cameron, Refugee Status Determinations and the Limits of Memory, which summarises a large amount of empirical research on this topic.

She shows that human memory for temporal information, such as the exact date something happened, how often it happened, the order it happened or how long it took, is extremely poor. For the most part, we reconstruct that kind of information by inference, estimation and guesswork, rather than actually remembering it.

These issues are exacerbated in the case of mental health conditions. Many people who come before the courts have experienced traumatic events in their lives and have conditions such as post-traumatic stress disorder (PTSD) and depression, which significantly affect memory and concentration.

Likewise, there is evidence that autistic people may be more likely to be wrongly judged as deceptive or lacking in credibility.

A person’s demeanour may also be affected by their cultural background. So, it’s very risky to assume that you can tell whether someone is lying by the way they behave when being questioned.

Professional judges are certainly not immune to making false assumptions about memory and demeanour. Judges are not trained in psychology or psychiatry, but in law and a legal education by itself does not give you any special insight into human nature.

So, we shouldn’t assume that judges are any better at getting the right answers than juries.

It may well be that the key to reducing bias and improving rigour in the justice system lies in changes to the trial process and the rules of evidence, rather than in replacing trial by jury

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Robot jurors

Finally, we should consider one of the more outlandish ideas that has been floated: replacing jurors with artificial intelligence.

I’m not an AI expert, but I would have very grave concerns about whether such a system could ever be genuinely fair or just. An AI system is only as good as the data we human beings feed into it. And the datasets on which AI systems are trained can often inadvertently impart biases which have profound effects on decision-making.

For example, a 2021 New York Times article highlighted an incident where Google Photos automatically sorted photographs of a black man into a folder marked “gorillas”.

Similarly, the article quotes a black computer expert, Deborah Raji, who was working on a content moderation system designed to remove pornography from social networks.

She noticed the system was being trained to distinguish pornography from non-pornography by comparing anodyne stock photos with images from online pornography sites. Because the people in the stock photos were mainly white and the people in the pornographic images were not, the system was unconsciously being trained to identify images of black people as pornography.

And another black computer expert, Joy Buolamwini, found that the facial recognition system at her workplace would not recognise her face – but when she wore a white mask, it did.

None of this is to say that AI isn’t useful. But it doesn’t always remove human biases from decision-making. Sometimes it replicates and exacerbates them. And given what we have already learned about how people may make false assumptions about a witness’s credibility, we can see that the same false assumptions could well affect an AI-based courtroom.

For instance, an AI trained to analyse a person’s body language might well misidentify a person with autism or PTSD as a liar because their body language might not match the programmers’ expectation of how a truthful witness behaves. In this scenario we wouldn’t have eliminated our human biases. We’d simply have automated them.

Conclusion

I want to wrap up by saying this: to an extent, the jury’s still out on juries. We don’t really know with any certainty whether racial bias is a significant factor in jury decision-making. Although Thomas’ research is often held up as proving that juries are race-blind, there are good reasons to question this conclusion.

Nor do we know with any certainty whether juries are getting the answers right, a question which is very difficult to test empirically. But before throwing out the institution of trial by jury, we should keep in mind that trial by professional judges is not necessarily a better alternative. A legal education does not give a person the wisdom of Solomon.

And while we don’t know to what extent juries are racially biased, there is good evidence that judges are. Nor should we subscribe to gimmicks such as replacing juries with artificial intelligence. It may well be that the key to reducing bias and improving rigour in the justice system lies in changes to the trial process and the rules of evidence, rather than in replacing trial by jury. ■

Professor Leslie Thomas KC is a lecturer at Gresham College in central London. The above is an extract from a recent public lecture ■

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Not government policy – yet

This proposal identifies the ultimate purpose of the panel’s review of local government: to commence the slow, necessarily piecemeal and intentionally opaque process of fundamentally rewriting the New Zealand constitution in ways intended to give effect to a particular, but far from uncontested, reading of te Tiriti o Waitangi

Chris Trotter

When the release of a government-commissioned report causes citizens to recoil in dismay, something is very wrong. The whole point of living under a democracy is that governments elected under its rules should find it very difficult to dismay the electors.

Democratically-elected politicians should always be close enough to their voters that surprising them –or being surprised by them – becomes both rare and difficult. Government by consent doesn’t leave a lot of room for shock and awe.

The dismay occasioned by the release of the proposals of the government-appointed panel set up to review the future of local government in New Zealand confirms two things.

The first is that it could not have been authored by persons accountable in any meaningful sense to the voters. The second, closely related to the first, is that many of the proposals are profoundly and dangerously undemocratic.

Appointed by Cabinet from a list supplied by Local Government Minister Nanaia Mahuta, the panel is made up of Jim Palmer (chairman), Penny Hulse, Antoine Coffin, Gael Surgenor and Brendan Boyle.

Judging from their brief CVs posted on the review’s website, the group’s political praxis veers more in the direction of top-down bureaucratic governance than towards the norms of bottom-up democratic government.

Certainly, no democrat could endorse the panel’s most controversial proposal: that persons appointed by ethnically-defined, non-elected entities should be afforded all the rights and privileges – including full voting rights – historically reserved for the democratically elected members of local authorities,

such appointees to be immune from all the usual democratic sanctions.

It is this proposal – traducing, as it does, the core values of New Zealand’s democratic electoral system – that identifies the ultimate purpose of the panel’s review of local government: to commence the slow, necessarily piecemeal and intentionally opaque process of fundamentally rewriting the New Zealand constitution in ways intended to give effect to a particular, but far from uncontested, reading of te Tiriti o Waitangi.

Responsibilities redefined

This is how the panel expresses its mission:

“Local government is responsible for facilitating democracy – ensuring that it reflects our increasing diversity, embodies Tiriti-based partnerships, and seeks out innovative ways of ensuring the voices of the whole community are heard and reflected in local decisions. Internationally, citizens’ participation in local government decision-making has evolved considerably and practices should be improved and updated.”

Note the stunning reversal and redefinition of political responsibility contained in that first sentence. Not that local government is the product of democratic engagement by local citizens but that among local government’s many pressing responsibilities is “facilitating” democracy.

Not, it is important to note, upholding, protecting, or (God forbid!) practising democracy, but for making democracy “easy, or easier”, presumably by steadily relieving citizens of the awful burden of having to elect their local representatives.

The other thing our local authorities are there for, according to the panel, is to “ensure” that democracy

reflects “our” increasing diversity – except that reflecting diversity forms no part of the democratic rules of engagement.

Citizens elect representatives – not reflections. Democratically elected politicians are there to actively articulate, implement and answer to the public will, as expressed through the electoral process. They succeed or fail according to the effectiveness of their actions, not on account of their race, religion, gender, sexuality or class.

Notwithstanding this generally accepted understanding of democracy, we are left with that worrying word “ensuring”.

To “ensure” that something happens implies the elimination of choice, as in “to make certain that (something) will occur or be the case.”

Or, to put it in practical political terms, if the electors fail to produce a “diverse” council, then one will be imposed upon them. By whom? Central government? The Local Government Commission? The courts? All of the above?

Democracy’s next responsibility is to ensure that the councils’ decision-making architecture “embodies te Tiriti-based partnerships”.

Was so much ever assumed in so few words? Most obviously, the massive assumption that the Treaty of Waitangi is, indeed, a partnership and that the character of that partnership is precisely defined in, and attainable by, law.

In the absence of such legal precision, it is impossible to envisage how “democracy” might give te Tiriti corporeal form, not least because “democracy” itself  is not a body to be commanded but a principle and a process to be honoured.

Nevertheless, the panel is clearly of the view that if democracy is not up to embodying the treaty, then its principles and processes should be set aside.

More equal than others

Enough? No, the panel has still more to ask of the democracy it facilitates. On top of generating diversity and embodying the treaty, democracy must also seek out “innovative ways of ensuring the voices of the whole community are heard and reflected in

local decisions”.

Clearly, the opportunity for every citizen aged 18 years and over who meets the legal residency requirements to cast a vote for the councillors charged with making local decisions, is not enough for the panel.

Neither is the ability of every citizen to make submissions on the desirability, or otherwise, of proposed council projects. More is required of democracy – but what? Surely the panel is not suggesting that the voices of some citizens should be amplified artificially? (as happens every day in relation to the business community and its paid lobbyists.)

Surely the panel is not laying itself open to the charge that it considers some voices, some reflections, to be more equal than others?

As for all these additional opportunities for citizen participation which have “evolved considerably” internationally, what does the panel have in mind?

The term it uses is “participatory democracy”. Well, that’s an oldie but a goodie that goes all the way back to the US-based Students for Democratic Society and their “Port Huron Statement” of the mid-1960s. Then

again, the SDS were revolutionaries, so maybe not.

Perhaps the panel is thinking of faux-democratic novelties like “citizens assemblies” and/or “citizen juries”. These are the sort of easily manipulated “participatory” practices put forward by local government bureaucrats when democratically elected bodies refuse to relinquish government in favour of governance.

What the panel would really like to see, however, and explicitly recommends, is:

“That central government provides a statutory obligation for councils to give due consideration to an agreed, local expression of tikanga whakahaere in their standing orders and engagement practices, and for chief executives to be required to promote the incorporation of tikanga in organisational systems.”

That sounds like constitutional transformation from above, embodying te Tiriti o Waitangi partnerships, by way of statutory obligations imposed by central government with no provision for the electorate to vote the proposed changes up or down in a referendum and culminating in the comprehensive hollowing-out of New Zealand’s democratic principles and practices.

Doesn’t all this have a rather familiar ring? Haven’t New Zealanders heard such proposals before? In

another report? What was its name? Ah, yes, that’s right: He Puapua

Older New Zealanders will also recognise in the panel’s “review” of local government strong echoes of the political style perfected by the fourth Labour government as it set about changing the character of New Zealand’s economy and society.

That, too, was a quiet, top-down revolution. Indeed, it was during the imposition of the unheralded and unmandated transformations dubbed Rogernomics that New Zealanders first learned to fear the release of specially commissioned government reports. Picot anyone? Gibbs?

Ironically, it was that fervent neoliberal David Farrar, speaking for the Taxpayers’ Union, who best summed up the dismay of the millions of voters as yet unpersuaded by the panel’s transformational proposals:

“Just like with the He Puapua report, the government is saying that the panel’s draft recommendations are ‘not necessarily government policy’.  We’ve seen this trick before and we all know it’s code for ‘not yet government policy’.” ■ Chris Trotter has been a political writer and commentator for more than 30 years. He is the author of the Bowalley Road blog site ■

How and when to appoint a receiver to a trust

Sacha Jugum

Trusts Act 2019 s 38 – application for appointment of receiver of trust – applicable principles –procedure – inherent jurisdiction versus statutory jurisdiction – weighing of evidence – “reasonably necessary” – “just and equitable” – extent of receiver powers – priority of claims – duration of receivership – precedent – appointment of receiver made, with conditions

Re Cameron and Robertson-Brown [2022] NZHC 2495 (Cooke J)

Please note: practitioners working in commercial, equity, private client and trust law may find this decision of interest due to its discussion of the scope of inherent jurisdiction against the statutory provisions of the Trusts Act 2019 and the advice about evidential requirements for these types of applications.

The trustees of a trust were attempting to develop trust-owned land in the Wairarapa region.

However, the vagaries of life, the changing economic climate and related covid-19 impacts all contributed to an assessment by the trustees that the appointment of a receiver to the trust was a responsible course to ensure the land and all affected parties were dealt with correctly and in a way that would maximise the value of the land.

The trustees therefore applied to the High Court pursuant to s 138 of the Trusts Act, leading the judge to observe that s 138 has not been considered in many cases.

Applicable principles – detailed discussion of procedure and jurisdiction – extensive analysis of the differing legal thresholds required through the use of s 138 of the Act, as in this present application, compared to the invocation of the court’s inherent jurisdiction, where s 138 refers to such an appointment being “reasonably necessary”, contrasted with the

traditional view that the use of the court’s inherent jurisdiction in these types of situations is traditionally seen as a last resort, where there is “peril” to trust property – judicial advice and observation about the scope and subject of evidence required for these types of applications pursuant to s 138, including evidence of circumstances, financial position, necessity and basis for the proposed appointment, extent of required powers, likely costs of the proposed receiver and duration of the appointment – discussion of how the proposed receiver will most appropriately assess the priority of different claims, including mention of the Companies Act 1993 and the Receiverships Act 1993 – reference to precedent and to the Law Commission commentary.

Held: the trustees’ application for the appointment of a receiver to the trust is granted, with conditions. ■

ADLS Annual Breakfast with the Attorney-General Hon David Parker

WHEN Friday, 2 December 2022, 7:15 8:30AM WHERE Rydges Hotel, 59 Federal Street, Auckland CBD DRESS CODE Business attire

INFORMATION

TO REGISTER,

CLICK HERE OR EMAIL EVENTS@ADLS.ORG.NZ

Sacha Jugum is a senior solicitor at Brookfields and the editor of The Bulletin ■

Briefs

Legal awards

Professor Philip Joseph (University of Canterbury) has received the JF Northey Memorial Book Award for his text, ‘Joseph on Constitutional and Administrative Law’ (5th ed). It is the second time Joseph has won this award, which was announced at the New Zealand Legal Foundation’s annual general meeting earlier this week. He also won the award for the first edition of his text, published in 1993.

Professor Karen Scott received the Sir Ian Barker Award for her published article ‘Does Aotearoa New Zealand Need an Oceans Policy for Modern Ocean Governance?’ 35 (2021) Ocean Yearbook 273 – 339

Musk completes Twitter purchase

Elon Musk is consolidating his control of Twitter after completing the controversial on-again-off-again US$44 billion purchase of the company last week. One of his first acts was to fire the CEO, CFO and other key executives, and earlier this week the entire Twitter board was sacked. Musk wants to introduce a monthly US$8 subscription to reduce Twitter’s reliance on digital advertising which currently comprises 90% of its revenue. Some advertisers are concerned that Musk’s stated commitment to free speech will lead to a surge in offensive content. ■

MERGER OPPORTUNITY

PARTNERSHIP OPPORTUNITIES

We are seeking potential merger opportunities for our well-established medium-sized firm.

We also seek senior property and relationship property lawyers looking for a fast track to partnership.

If this is of interest, please apply in confidence to: advertiser@adls.org.nz quoting reference MAT10

Ben Snedden

Family Law Barrister

Ben has returned to Hobson Chambers after a year in England. During his time away Ben qualified as a solicitor advocate in England and completed the Advanced International Advocacy Course at Keble College, Oxford. Ben is available for instruction on all family law matters including on a fixed fee basis. Please contact Hobson Chambers on (09) 379 7658 for any bookings.

Legal Executive or Solicitor – Trusts

We are a long established and well-respected Hawke’s Bay firm based in Napier. Our partners set the standards for excellence and professionalism in the Bay. We have a thriving practice servicing a vibrant urban, business and rural community.

We seek an experienced Registered Legal Executive or Solicitor with strong interpersonal skills and great attention to detail who is able to work independently but also in a team environment. The successful applicant will need excellent technical skills covering:

• Trusts database management (Infinity Law)

• Preparation of new trusts and the associated documentation

• Preparation of minutes, resolutions and documentation

• Annual review of existing trusts

You will work with our partners and solicitors in the property and commercial teams and will have direct client contact.

If you are contemplating moving to a region with a fantastic lifestyle contact us.

Please make initial contact in full confidence to: Howard Bott Practice Manger

Sainsbury Logan & Williams

Email: hjb@slw.co.nz Direct dial: (06) 833 7845 www.slw.co.nz

Making the most of restorative justice

Reweti Kohere

The August sun was starting to set as Edward Smith drove home on State Highway 16.

Earlier that day, back in 2018, he had returned to New Zealand from the Philippines. Sleep had eluded him on the flight though. The tired traveller, in his 70s, had made his way from the airport to his brother’s house in the west Auckland suburb of Te Atatu. He thought he could drive home.

But as his eyes closed, his car crossed the centre line. A Māori mother and grandmother were driving on the other side of the road. Smith’s lapse in concentration ultimately proved fatal.

Barrister and youth advocate Helen Bowen defended Smith in the ensuing proceeding and knows first-hand how powerful an outcome restorative justice can bring about.

Nine months after the tragic car crash, Smith was disqualified from driving for six months. Instinctively, Waitakere District Court Judge Noel Sainsbury’s sentence might seem an insufficient response to the death of two family members; people understandably look to the law for retribution, to bring their loved ones back or to assuage their grief, the judge said.

But through restorative justice, the victims’ whanau and Smith had reconciled on the family’s local marae. The defendant had their support at his sentencing.

As a result, Judge Sainsbury struggled to see how he could meaningfully punish Smith or denounce his actions any more than what the parties had already achieved between themselves. To their credit, they “have sorted matters out better than I could ever hope to”, the judge said, impressed. “You are an utter credit to our community. I thank you for that.”

Rare outcome

Bowen, a restorative justice facilitator and trainer herself, acknowledges the outcome in Smith’s case is rare. But she remains optimistic it’s achievable elsewhere.

“When you experience that level of reconciliation – and I suppose I’m a glass-half-full person – you know that you want to keep trying this, no matter what,” she says.

Now, in an upcoming ADLS CPD seminar chaired by District Court Judge Phil Recordon, criminal defence lawyers will be reminded they too can effect a different outcome. With presentations from Bowen and other practitioners, attendees at

Making the most of restorative justice will learn how restorative justice works, its benefits and efficacy, how lawyers can best prepare their clients and the role of accredited and professional facilitators.

Restorative justice has been a part of New Zealand’s sentencing laws for more than two decades, and the country is often seen by other countries as a trailblazer for incorporating indigenous ways of resolving conflict into an inherited, colonial criminal justice system.

But with the disruption covid-19 has wrought during the past two years, including exacerbating the courts’ existing backlog of cases, restorative justice is at risk of not playing its intended role.

Under the Sentencing Act, District Courts must adjourn cases to enable restorative justice to occur if offenders appear before sentencing, have pleaded guilty and there’s at least one victim affected.

Bowen says sometimes referrals aren’t made, either because they have fallen through the cracks or lawyers haven’t completed the documents. But consequently, offenders and victims miss out on “the potential for healing” and sentencing judges are deprived of additional helpful information in formulating their sentences.

Fundamentally, restorative justice is about “the people rather than the charge”, Bowen says.

A burglary victim might want nothing to do with their offender, while another victim may be curious about the process. A different burglary victim might not be forgiving and yet still want to participate.

Sometimes victims are told to avoid restorative justice as offenders may receive discounted sentences by participating. On the other hand, the opportunity for victims to confront their offenders and share how the offending had an impact on them and their family outweighs any thought of a reduced sentence.

Some offenders and victims know each other and some are strangers. Whomever the process is happening for, “it just means these people get in a room and talk about what the actual harm was”, Bowen says. “Then there’s the capacity, the potential, to do something about that, which you don’t necessarily get in a courtroom other than [through] some reparation or some guidance for the offender to go to some program. But these are the actual parties, the incident has occurred around them.

“There is a benefit by allowing it to happen, rather than not.”

Fundamentally, restorative justice is about the people rather than the charge

Sometimes victims are told to avoid restorative justice as offenders may receive discounted sentences by participating

New Landonline dealings application goes live

Andrea Watson

The first phase of the new Landonline dealings application will be available to all Landonline users this month.

The application will enable registered Landonline users to complete most sale and purchase and re-financing transactions on the new web-based application, which is a major milestone in the Modernising Landonline programme, which began in 2019.

Registered users will be able to access the application here and selecting “dealings login”.

Features

The application will have all the features needed to process most transactions involving simple discharge of mortgage (DM), transfer (T) and mortgage instruments (M).

The aim is to incrementally release functionality so customers can become familiar with how the new application works and provide feedback to inform further improvements.

In addition to transacting DM, T and M dealings end-to-end, users can complete various dealing actions, such as certify and sign, release and submit in almost all dealings.

Until we’ve developed and released all functions, both Landonline systems will run in parallel.

The two systems are fully compatible and integrated, enabling customers to work interchangeably in new Landonline and legacy on the same dealing.

More instruments and functionality will continue to be developed based on volume, complexity and what our customers need.

Dealings process

Importantly, the dealing process hasn’t changed.

Our focus has always been on improving the customer experience. While we’ve made the new application easy to use and more intuitive, by keeping the same process we’ve made it easy for customers to switch between the two Landonline systems, when required.

There’s a fresh, modern look that web-search customers will be familiar with.

Access and use

The following list highlights some of the improvements in the new application:

■ The new application can be accessed on any device. The only time users need to be on the device with their digital certificate is

when they certify and sign.

■ More opportunities to check on aspects of your dealing, such as whether the notice of change of ownership (NoC) has been marked “ready to send”.

■ A one-page version of the tax statement has been created for clients who are familiar with the material.

■ A new filter on your landing page helps users quickly locate a dealing.

■ Inputting dealing details is faster and easier. For example, you can quickly select common bank names and their associated memoranda of mortgage and it is easier to search for primary contacts and conveyancing professionals.

■ You can provide feedback directly from within the new application.

Our pilot

Since our pilot started in July 2021, more than 400 customers have used and tested the new application. Not only did they provide fantastic feedback and identify bugs but they also said the new application was a big improvement. I’d like to give a shout-out to everyone involved in the pilot. They’ve thoroughly tested the application to ensure it was ready to be released and constantly gave us the feedback, encouragement and reassurance to know that what we’re delivering works for them.

They also provided great ideas for future enhancements we can consider after legacy Landonline is switched off.

Certify and sign

To certify and sign in the new application, customers will need to upgrade to the new two-year digital certificate.

If you certify and sign but haven’t yet upgraded, find out more about the new two-year Digital Certificates. There’s no cost to upgrade before your renewal date.

Landonline support

You’ll be able to link directly to Landonline support self-service tools from within the new application. While we encourage a self-servicefirst approach to customer support, our contact centre is just a phone call away.

If you’d like more information, or have a question, please email: modernisinglandonline@linz.govt.nz ■

Andrea Watson is consulting solicitor at Toitū Te Whenua Land Information New Zealand (LINZ) ■

Until we’ve developed and released all functions, both Landonline systems will run in parallel

FMA review into wholesale market reveals dodgy investor certificates

A lawyer, accountant or financial adviser must sign a written confirmation of the investor’s certificate on the grounds they are satisfied the investor has been sufficiently advised of the consequences of certification and have no reason to believe the certification is incorrect or that further information or investigation is required.

A breach of this obligation can lead to contravention of a civil liability provision in the FMC Act.

Some of the deficient grounds cited for qualifying their clients as wholesale investors included the sale of a farm, owning a term deposit or KiwiSaver, having a rental property portfolio, making substantial profits from selling houses and ‘experience in investment’

Gregory said the wholesale investor exclusion is intended to allow wholesale property investment firms to make offers to expert investors without having to provide the disclosure designed to inform and protect non-expert investors.

“However, our review found practices in the market which have allowed this exclusion to extend to people with little or no investment experience, some citing KiwiSaver or term deposits as ground for supporting their expertise. “

Sally Lindsay

Lawyers and other professionals are likely to be in the gun with their regulators over deficient wholesale investor certificates for property development projects.

The Financial Markets Authority (FMA) is making referrals to the regulators and professional bodies for lawyers, accountants and financial advisers after wholesale investor certificates were used to enable people with little or no investment experience to put their money into property funds available by law only to more experienced wholesale investors.

The definition of a wholesale investor is laid out in s 36 of the Financial Markets Conduct Act 2013.

In a review into 23 wholesale property funds, the FMA found on multiple occasions lawyers, accountants and financial advisers signed written confirmation for wholesale investor certificates where the applicant did not meet the s 36 criteria.

Some of the deficient grounds cited for qualifying their clients as wholesale investors included the sale of a farm, owning a term deposit or KiwiSaver, having a rental property portfolio, making substantial profits from selling houses and “experience in investment”.

Seven funds were formally warned by the FMA.

The regulator launched the review after an increase in complaints and concerns about how wholesale offers were being promoted and whether the appropriate investors were being targeted and accepted.

The most significant review findings related to the use, confirmation and acceptance of eligible investor certificates.

During its investigation the FMA found three instances of a lawyer, accountant or professional adviser confirming their own eligible investor certificates, one wholesale fund supplying a preferred lawyer, accountant or professional adviser so investors could get their eligible investor certificates confirmed and multiple instances of lawyers, accountants or professional advisers confirming certificates where no grounds of wholesale investment expertise were stated.

Concerning conduct

FMA capital markets acting director Paul Gregory said he was concerned about the conduct of the lawyers, accountants and financial advisers confirming eligible investor certificates.

“Some investor certificates were not confirmed by lawyers, accountants and financial advisers as required, while other certificates were confirmed – and accepted by wholesale property investment firms –with no grounds or grounds that did not relate to the matters certified.”

For people to qualify as an eligible wholesale investor they must certify in writing they have, in relation to an offer of financial products, previous experience in acquiring or disposing of financial products and can assess the risk of the transaction to which the certificate relates.

Warnings were issued to Black Robin Equity and Westwood Terraces BRE: Du Val Capital Partners and Du Val BTR GP; E+O Property Syndication; Jasper NZ Investments; Provincia Property Fund; Williams Corporation Capital Partnership GP and Wolfbrook Capital for using non-compliant eligible investor certificates.

The FMA had asked the property funds for information on advertising, offer documents and process information across the industry.

It found seven market practices which may increase the risk of an investor being misled, including:

■ offers promoted through a broad range of advertising channels, including through social media, rather than targeting experienced investors;

■ promotional material promoting high returns and low risks or ignoring risk;

■ offerors using digital advertising strategies, such as search optimisation that may target non-expert investors (for example, promotions for wholesale property development projects targeting advertising at people using search terms such as “Sharesies” and “term deposit”);

■ promotional materials that were not clear the offer was only available to wholesale investors; and

■ some instances of aggressive hard-sell techniques, although this did not appear to extend to investors being pressured to self-certify as eligible investors.

Gregory said the FMA will continue to scrutinise the wholesale property investment sector, especially given the volatile market environment affected by rising interest rates and falling property prices. ■

Why was the Lehrmann trial aborted and what happens next?

One of the more extraordinary cases of jury misconduct occurred in 1994 when a number of jurors in Britain deployed a ouija board to contact the victim of a murder

of a murder. A new trial was ordered

Interestingly, misconduct often comes to light when one juror approaches the judge about a fellow juror’s behaviour. It’s more difficult to know how common it is for extraneous research by a juror to go undetected, particularly given the veil of secrecy that surrounds jury deliberations.

In today’s hyper-connected world, it’s easy for a juror to access information, in this case an academic paper about the incidence of false complaints of rape

Own research

Ben Livings & Rick Sarre

The trial of Bruce Lehrmann, accused of raping former Liberal Party staffer Brittany Higgins, has been aborted after a juror was found in possession of material that had not been presented as evidence, against the judge’s specific directions.

This was not the first drama in the jury’s deliberations. After more than four days of deliberating, the 12 jurors passed a note to ACT Chief Justice Lucy McCallum saying they could not agree on a unanimous verdict. The judge called the jurors back into the courtroom and encouraged them to keep working on a decision.

Last week, however, she announced she had no choice but to discharge the jury due to a juror’s “misconduct”, which was apparently discovered when a member of the court staff noticed an academic research paper in one of the juror’s document holders that had been knocked to the floor.

It’s not uncommon for juries to be discharged in circumstances where a juror decides to do his or her own unauthorised research, such as by photographing a crime scene, making their own enquiries, or planning to visit a place mentioned in evidence.

One of the more extraordinary cases of jury misconduct occurred in 1994 when a number of jurors in Britain deployed a ouija board to contact the victim

The role of the jury is to come to a decision based on the evidence before it. Juries are community representatives within the courtroom, whose job it is to determine questions of fact and apply the law to those facts to reach a verdict.

One might think that, in so doing, it’s inevitable individual jurors bring with them their own life experiences and moral values, and there is nothing wrong with that. Indeed, Justice McCallum told the jury in this case: “You are expected to use your common sense […] your understanding of human nature and your ability to judge people […] You are entitled to have regard to your understanding and experience of the nature of memory.”

However, the jurors in the Lehrmann trial sat through days of evidence, carefully presented and argued over by prosecution and defence counsel, and deemed admissible according to the rules of evidence.

The most important rule of admissibility is that the evidence is relevant to the case. Beyond relevance, evidence is subject to complex rules of admissibility, designed primarily to screen out material that’s unfairly prejudicial to the defence, and to protect vulnerable witnesses.

Examples include rules against the admission of hearsay, prior sexual experience of a complainant or the “character” of a defendant. These rules are all the more important when it comes to emotive crimes like rape

Given the complex nature of some of the evidence with which they are presented, and the “holes” in the trial narrative that might appear from the exclusion of potentially relevant evidence, jury members may be tempted to turn to outside sources in an attempt to increase their understanding of issues raised during the course of a trial.

The dangers of allowing such extraneous “research” are twofold. First, such evidence is not subject to the rules of admissibility alluded to above. Second, it is not subject to the rigours of crossexamination.

For these reasons, jurors are reminded again and again to come to a decision based solely on the evidence presented. It’s for this reason the jury in this case will have been instructed to disregard anything they may have read, heard or seen in the media about the case before they had been empanelled, and certainly not to undertake their own research.

What happens next?

The trial has been aborted and the jury has been dismissed. The judge granted Lehrmann bail until February 20 and set that as a provisional retrial date. The Director of Public Prosecutions, Shane Drumgold, has confirmed that Lehrmann will face a retrial next year.

A retrial comes at considerable economic cost. What’s more, all of the witnesses will now be put through the same ordeal once again.

Despite the disruption caused by the errant juror’s behaviour, however well-meaning, the juror has committed no offence in the ACT. But other jurisdictions deem juror contempt a serious criminal offence ■

Ben Livings is an Associate Professor of Criminal Law and Evidence at the University of South Australia and Rick Sarre is an Emeritus Professor of Law and Criminal Justice at the University of South Australia ■

The above first appeared in The Conversation and is reprinted with permission

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The recent judgment of the UK Supreme Court in BTI 2014 LLC v Sequana and others [2022] UKSC 25 creates a change in directors’ obligations to the company’s creditors and shareholders. Join us to learn how this decision may impact our own Supreme Court’s rulings.

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Using declaratory judgments

Presenters Samira Taghavi; Helen Bowen; Colin Rose; Jean Staples and Jon Everest Webinar 1.5 CPD hrs

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Contract law update

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Many years’ experience, both as a sole practitioner and as a partner in a small law firm, in general practice, with particular expertise in trusts, estate administration, and business law. Contact me by email: anthonycharleshorrocks@gmail.com or on mobile: 021 754312.

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Do you want to take your legal career in an exciting new direction?

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A little bit about me: I’m a trust account partner and Landonline conveyancing professional. During the past 50 years I have operated my own practice as a sole practitioner and managing director in three-partner firms. I’ve employed up to 18 staff and built up a solid reputation for client service, practice development and technology

Even if you do not have any particular plans, a discussion might help you

figure out what might be possible. Contact me by mobile 021 610 980 or

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