Don’t allow managerial justice to encroach upon criminal justice

New Zealand’s Chief Justice, the Right Honourable Dame Sian Elias, recently spoke at a Criminal Bar Association conference, attended by members of ADLS’ Criminal Law Committee.

Entitled “Managing Criminal Justice”, the Chief Justice’s address highlighted the importance of viewing proposed innovations to the criminal justice system, whether “judge-nudged” or enacted by Parliament, through the dual lenses of certainty and fairness.

Her Honour reiterated comments made by Sir Thaddeus McCarthy in the Court of Appeal in 1969, to the effect that criminal practice and procedure “ought always to be under the hands of the judges”. “Today,” she noted, “that responsibility is increasingly undertaken by Parliament and the executive.”

The Chief Justice considered that, while there are “benefits in terms of accessibility and democratic legitimacy” in this shift to enacted rules governing criminal procedure (and accompanying restructuring to legal aid and court administration), it may place undue weight on “more instrumental ends” such as “efficiency, cost-effectiveness, proportionality … inter-agency co-ordination and information-sharing”.

And because much of this has been done via subordinate law, “significant developments have been brought about with very little public participation in the design”. By contrast, the traditional, more incremental method of common law development is “a brake on abrupt changes of direction” and “requires change to accord with the skeleton of principle that underpins law”.

While her Honour does not “expect criminal justice to be immune” from wider objectives like cost-reduction, there is “room for some unease about the baby in the throwing out of the old bathwater”.

She cited various developments (such as the wider use of summary trial, incentivisation of early guilty pleas, changes to onuses of proof, and the application of modern civil case management measures to criminal proceedings) as having the potential to “reposition” established roles of judges and counsel, but wondered whether all of these measures have been “sufficiently tested” against fundamentals such as the rules of evidence, fair process and “safe proof of guilt”.

The Chief Justice described the operation of criminal justice as “an interconnected system … a bit like a cat’s cradle”. It may be that changes are warranted, but they need to be reconciled with the rule of law. “You cannot pull on one thread without causing movement in the whole structure,” her Honour said.

“We have to keep our eye on the system as a whole and not to be blinded by immediate pressures and self-interest. Many levers are now in the hands of those who are managing for outcomes other than correctness of decision-making and fairness in process.”

The Chief Justice noted a number of administrative changes and technological developments are affecting today’s criminal justice sector and court operations, and that criminal courts are increasingly being treated as just one part of an “integrated system” or “pipeline” where multiple agencies cooperate and share information.

“Modern technology is seen as providing opportunities to reduce costs and achieve better timeliness and better co-operation between public agencies,” she said, with the most obvious such change in criminal justice being the increased use of AVL technology. “My impression is that [these changes] have been largely administratively managed although supported by judges and practitioners.”

“Down the track are quite ambitious suggestions that where judges and counsel are located is immaterial. Cases may be queued to be dealt with by the first available judicial officer anywhere in the country, with counsel and accused attending by video link wherever they happen to be.

“There may be very good administrative sense in much of this and it may suit busy practitioners and judges and prisoners. But what it shows is that the courts in the middle of the pipeline are not seen as standing apart from the whole of government effort. They are not seen as a separate institution of government. There is risk of the blurring of the distinct role of courts.”

Another “straw in the wind” is “the submergence of courts within the wide range of operations run by the Ministry” – again, her Honour noted the “good sense in much of this”, but drew attention to the risk of an “erosion of the culture of courts” and a “diminishment of the visibility of courts in the community” if they are managed “to suit other agencies and operations”.

The Chief Justice also cautioned against a tendency to view the administration of justice as “merely a public service like any other”, as suggested by reports of pressure to advance or resolve cases within set timeframes or to meet certain goals. “[T]hat may not be appropriate to meet the evidential and other issues thrown up by the particular case,” her Honour said, and encouraged the profession to take responsibility for demonstrating “why this attitude is dangerous to the rule of law”.

In a similar vein, her Honour talked about inducements to plead guilty through sentence discounts for guilty pleas and the pressures arising from “remorseless scheduling in the courts in a system that is underresourced”. “Rush to plea is not a goal we should be pursuing,” she stressed.

The Chief Justice concluded her remarks by noting that “people care about equal treatment under law”, and that “instrumentalist aims for criminal justice may not meet community expectations and may be destructive of confidence in the system.”

“There is a need to ensure that the management of criminal justice does not neglect procedural safeguards and that innovation does not throw over basic principle such as in open justice and certainty, and the ability of impartial judges to do what is fair and just.”

“I do not expect criminal justice ever was speedy or cheap. Its careful observance is however best policy for a state that aspires to live under the rule of law. We are all implicated in the move to managerial justice in criminal law. We need to be careful.”

The Chief Justice’s full address on “Managing Criminal Justice”, dated 5 August 2017, is available under the 2017 tab here.

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