By Alper Ali Riza
There is no reason in logic, precedent or principle why a decision of a final court of appeal should not be rescinded if it is necessary to correct an injustice caused by the court itself.
Provided an unfair decision is not the fault of the parties to an appeal, a final court of appeal can rescind its own decision if allowing it to stand would ‘shake public confidence in the integrity of the administration of justice.’
The supreme court’s inherent jurisdiction to rescind its own decisions is necessary since otherwise there would be no remedy in the event of injustice.
In the administration of criminal justice the focus of attention is normally on the plethora of rights enjoyed by those charged with criminal offences but unfairness to the prosecution is just as likely to engage the court’s inherent jurisdiction to rescind as unfairness to defendants.
That said once the court re-opens a case it will be slow to reverse an acquittal unless it is obviously wrong.
In the Pinochet case, the UK House of Lords sitting in its capacity as a final court of appeal held that the court’s power to rescind its own decisions was to be used exceptionally if a decision was made improperly and that there was no question of rescinding a decision by a later order in the same case ‘just because it is thought the first order is wrong.’ Basically two questions fall for consideration: whether to rescind the court’s own decision; if so whether to reverse the previous decision.
In terms of the current controversy afflicting the Cyprus supreme court over an eccentric decision in a recent case in which the court decided by a majority of 2 to 1 that false statements about the financial status of the Bank of Cyprus at a shareholders’ meeting did not constitute market manipulation, the first question is whether the president of the court should have recused himself. As I do not know the facts first hand it would be wrong to say anything more than it is for the supreme court to decide of its own motion, or at the instance of the attorney-general on behalf of the people of the republic, whether it accepts it has an inherent jurisdiction to reopen an appeal it allowed and whether it is in the interests of public confidence in the judiciary to exercise it.
The approach of the House of Lords in the Pinochet case is instructive for the meticulous care with which the judges considered Lord Hoffman’s role in Amnesty International before deciding that his participation as one of the appeal judges had been improper for procedural unfairness. After the original decision was rescinded, a differently constituted House of Lords reconsidered the case but reached the same conclusion – that former heads of state are not immune from extradition from Britain though, as frequently happens in such cases, he was released on medical grounds and returned to Chile where he died in 2006 aged 91.
There are probably insuperable obstacles in revisiting a supreme court decision in Cyprus purely under Cypriot law. A way out of the highly damaging spectacle of having the president of the supreme court investigated by his peers for alleged bias is to revisit the case under EU law bypassing Cyprus law altogether under the amendment to the constitution of Cyprus that enables acts to be done to ensure compliance with EU law.
Given that this was an appeal concerning conduct identified in the EU Market Abuse Directives that criminalised market manipulation, including intentionally disseminating information with false or misleading signals about the financial condition of a bank, a question of interpretation of EU law was up for decision by the court on the interpretation of the word ‘intentionally’ from which there was no further judicial remedy.
The law is that where a case turning on a question of interpretation of an autonomous concept of EU law is before a final court of appeal in a member state, it is mandatory for the court to refer the question to the Court of Justice of the European Union for a preliminary ruling unless the interpretation is act clair – the interpretation is obvious.
The rationale behind this important requirement of EU law is to avoid multiple interpretations of EU Directives that are designed to be applied uniformly across the union.
If I understood the judgement of the court – which I read in Greek – correctly, the majority view was that the penal law made by RoC giving effect the EU’s Market Abuse Directives was that a defendant was not guilty of intentionally disseminating information that gives false or misleading signals if his reason for making the false statement was or may have been to reassure investors.
But that flies in the face of the ordinary and natural meaning of the word ‘intentionally’ as a mental element in crime. A person intends to cause a result if he acts in order to bring it about and as every first year student of criminal law knows is conceptually distinct from motive. A defendant may be motivated to reassure investors but he intends to manipulate the market if he acts to bring it about.
Motive is highly relevant in the investigation and detection of crime but it is not a mental element in crime. A doctor who kills a long suffering patient to save him from further suffering is as guilty of murder as the man who shoots another dead during an armed robbery to steal his money.
So it is difficult to disagree with the dissentient minority judgement of justice Psara-Miltiadou that on the facts as found by the court of trial there could be no conclusion other than that the defendant had knowingly and intentionally manipulated the market with the misleading statement he made even if his motive was to reassure the market. The requirement of intentionality excludes from criminal sanctions those who disseminate false information negligently for example but not those who act with deliberation.
It is not easy to fathom what is inside someone’s head. So what criminal courts do in cases requiring proof of intent is look at all the surrounding circumstances: what a defendant said and what he did before during and after an alleged offence. This was exactly what the three judges of the criminal court at first instance did and their judgement should not have been disturbed by the supreme court.
Alper Ali Riza is a queen’s counsel in the UK and a part-time judge