Browsing by Author "Barber, Simon"

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Open Access
From Discretion to Deference: A Necessary Simplification of New Zealand’s Appellate Landscape
(Te Herenga Waka—Victoria University of Wellington, 2018) Barber, Simon
A consensus grows; New Zealand’s appellate landscape is in a confused state. The current appellate exercise involves placing rich, multifaceted and complex decisions into narrow, separate and distinct categories. An appellant’s prospects of success depend on these rigid categorisations. Refusal to acknowledge the flaws of this approach has lead to judicial divergence. Inconsistent judicial application perplexes lawyers, academics, and litigants alike. Reform is necessary. To achieve this reform, I propose formal judicial recognition of respectful deference. Respectful deference involves jettisoning the troublesome categories, encouraging appellate courts to apply broad, contextual reasoning. It searches for the unique circumstances of a case — not which label fits best. The merits of each case will determine an appellant’s prospects. And there is good news. New Zealand is already headed in this direction. Recent cases have implicitly departed from the congeries of categorisation and into the fertile pastures of contextual reasoning. By explicitly recognising this departure, respectful deference will ensure greater fairness and simplicity for all who encounter New Zealand’s appellate landscape.
Open Access
R v Earl Ferrers (1760): The Trial That Saved England From Revolution?
(Te Herenga Waka—Victoria University of Wellington, 2017) Barber, Simon
In 1760, Laurence Shirley, the Fourth Earl Ferrers, killed his steward in cold blood. He was found guilty of the murder before his peers in the House of Lords, and subsequently hanged. Whilst the Trial is seminal in any history of 18th century English law, discussion is predominantly confined to the infamous narrative. Instead, this paper examines the Trial and execution within the legal context of 18th century England. The findings reveal an increase of discretion in criminal procedure, a reaction to a rapidly swelling set of laws. However, the Earl was afforded little discretion, and faced atypical intransigency of criminal procedure. From this, the wider context reveals an ostensible affirmation of the rule of law by the powerful ruling class. The Bloody Code engendered a mode of criminal justice based on rhetoric and perception. His fellow lords were prepared to make a sacrificial example from their own ranks to extol the virtue of the English legal system. This sacrifice ultimately appeased the masses, whilst protecting their own position in society. It is not a coincidence that in the decades surrounding the French Revolution, the Trial was proclaimed by conservatives as incontrovertible evidence of the equality of English law.