Care and Caution Required

Righting Judicial Wrongs

Former PM, Helen Clarke and Margaret Wilson abolished New Zealand's right of appeal to the UK Privy Council.  With a sneer of self-satisfied hubris they explained that the Privy Council was a relic of colonialism and that New Zealand was a now a grown up.  It could have a perfectly sound justice system, with our own Supreme Court as the highest court in the land.

But the smallness of the country has meant that the institutions and arms of justice can all too readily fall into group-think.  Even more likely is this to be the case when the Ministry of Justice gets too close to politicians and political parties.  Stubborn mindsets have too easily congealed around guilt and innocence.  Since every country carries risks of "unsafe judgements", and since New Zealand is small, exacerbating the risks of "group-think" influence, special care needs to be taken.

The UK Supreme Court helped provide a vital check and balance, which has now gone, courtesy of Clarke and Wilson.  Yet unsafe convictions continue to be identified or alleged.  Therefore, we are supportive of the proposal to set up a committee or commission to focus upon convictions which appear unsafe.

There are huge risks in this, of course.  But we are pleased (at least initially) that some checks and balances will apply.

A bill that will establish a commission to focus on possible miscarriages of justice will be considered by a committee of MPs after passing its first reading in Parliament today.  Justice Minister Andrew Little's bill, which passed without the support of the National Party, will establish a Criminal Cases Review Commission (CCRC).

"This bill is an important commitment by this coalition Government to provide a much-needed safety valve to our criminal justice system," Little said.  "The CCRC will focus on miscarriages of justice and is a direct response to concerns by many New Zealanders over wrongful convictions such as Teina Pora," he said in a statement.

The CCRC will be an independent body to review convictions and sentences where there is a suspected miscarriage of justice.  [NZ Herald]

The independence of the CCRC will be vitally important, as will be the qualifications, experience, and discernment of its members.  We can just see the PC brigade insisting that the CCRC have the correct careful balance of sex, trans-sex, race, gender and age.  Will the Bill and the Parliament be able to negotiate through such perilous waters?  We fear not.

Will the CCRC itself be independent of group-think?  Will it have the independence and courage to face off with a Ministry of Justice which is more than capable of defending its turf?  Will it be sufficiently independent of the media, which loves to sensationalize court cases and judgements?

The Bill now before the House provides limitations of the powers of such a Commission.

It will be able to refer cases back to the appeal courts but will not determine guilt or innocence. It will replace the referral power currently exercised by the Governor-General under section 406 of the Crimes Act 1961.  It will also be able to receive applications from any living convicted person or their representative and, where it is in the public interest, make initial inquiries on its own initiative where it has concerns.

So we will see.  Once again we can understand the need.  We believe there have been substantial injustices in a number of judgements made by the NZ Judiciary in the past.

But as a country we need to proceed with eyes wide open, and with a healthy dose of critical scepticism.