Top lawyers share views on Criminal Cases Review Commission

Some of New Zealand’s most senior barristers are backing the government’s decision to establish a Criminal Cases Review Commission (CCRC).

 CCRC

Among them are well known Queen’s Counsel Marie Dyhrberg and Nigel Hampton, who told LawNews such a commission is a long time overdue. Mr Hampton QC says the refusal by previous governments to look at reform led to the formation of the New Zealand Public Interest Project (NZPIP) – a group of lawyers, investigators, forensic scientists, and law students which looked at miscarriages of justice.

“It struggles along trying to look at self-referred matters of claimed miscarriages of justice, without funding and dependent on goodwill and pro bono input,” he says. “My involvement with NZPIP has served to underline the absolute immediate necessity for a CCRC in New Zealand. The introduction of the present Bill is, to me, a cause of rejoicing and relief – as I’m sure it would have been for the recently deceased Sir Thomas Thorp.”

Sir Thomas, a former High Court Judge, was interviewed by LawNews on this topic several years ago (LawNews Issue 1, 7 February 2014), saying it was inevitable that a CCRC would be established in this part of the world. His comments were influenced by a review he conducted in 2005 comparing New Zealand’s system of dealing with claimed miscarriages of justice with those in Scotland and England. Based on the experience of those countries, Sir Thomas estimated there were likely to be at least 20 innocent people in jail here, and concluded that we should establish something akin to the Scottish CCRC. Referrals by that commission had resulted in around four wrongful convictions being corrected each year, compared to New Zealand’s rate of one every two years under the royal prerogative of mercy system.

Sir Thomas told LawNews that one of the reasons for the low number of miscarriage of justice claims here is that Māori and Pacific Island inmates, who make up more than 50 per cent of the prison population, see little merit in making such claims.

“Most people who have failed in all their appeals are unimpressed with the justice system, and they don’t want to go back to the Minister of Justice with complaints because they think it’s simply a waste of time. In England and Scotland, it’s considered vital to have an independent Commission considering such complaints but, for some reason, not in this country.”

Asked to comment on Sir Thomas’ views at the time, the then-Justice Minister, Judith Collins, made it quite clear she didn’t see the need for a CCRC. She told LawNews that New Zealand’s criminal justice system had “robust safeguards” against miscarriages of justice through the appeals process and the royal prerogative of mercy provisions: “Our appeals process is working as it should,” she stated.

Today, her party – National – sticks by that view. Its spokesperson for Courts, Chris Penk, told LawNews that creating a new quasi-judicial body without sound checks and balances will invite unintended consequences.

“A clear case hasn’t yet been made for the CCRC to solve problems that the government feels may exist. Reforming current structures would be a better starting point for considering possible miscarriages of justice, along with work to prevent them from occurring in the first instance.”

Mr Penk, who practised law before entering Parliament, says it is not clear what the Commission will usefully add to the current system, given that a broad power of review already exists via the royal prerogative of mercy.

“To the extent that this isn’t an avenue currently well-utilised, surely the government could take steps to improve accessibility (for example, by advertising its existence to convicted persons). Similarly, if there is currently a resourcing issue given competing workload demands on Ministry of Justice officials advising on royal prerogative of mercy applications, there is nothing to preclude a small dedicated team being established within the Ministry.”

Mr Penk also questions the lack of accountability of a CCRC.

“The Commission is neither fish nor fowl – it’s not a court, so the presumption of open justice doesn’t apply, and it’s not a government agency that will be subject to the OIA. The net effect is a serious lack of accountability and transparency. At the same time, this quasi-judicial body will lack the protection of contempt of court rules (as enjoyed by courts proper, of course) so a lack of safeguards will exist around publication of matters that would otherwise be considered sub judice and so on.”

Mr Penk believes practical problems will arise if the Criminal Cases Review Commission Bill is passed in similar form to the current version: “As the government’s own Regulatory Impact Statement notes, matters may take just as long, or longer, to be resolved than is the case currently.” He says some other issues include:

  • having such a low threshold for the referral of historic cases – that it would be in the “interests of justice” for the matter to be re-opened – will open floodgates. Potentially meritorious cases will compete with low-level offences for which there is no real possibility of success in terms of system capacity;
  • the concept of finality is nowhere to be found in the Commission’s jurisdiction. This may be a deliberate design feature, given that the system’s rationale is to enable cases to be heard again that might not otherwise get that chance but, in reality, re-litigation will be invited ad infinitum; and
  • the composition of the Commission is troubling. It is entirely possible that a majority of its members will not be “legally qualified” (as defined), and even the one-third of members who are required to be legally qualified need not have actually practised law (as holding a practising certificate is enough), to have worked in New Zealand (as overseas experience is explicitly allowed), nor even to have practised criminal law (as there is no specification that commercial solicitors cannot perform the role, for example).

However, such arguments hold little sway with Nigel Hampton QC, who told LawNews that he wholeheartedly supports the government’s Bill.

“To now have serving judges (at the highest levels) making welcoming comments is refreshing – at last, a recognition amongst the judiciary that our system of criminal justice can only be strengthened by having a CCRC. In my mind, [the] Ellis [case] is the startlingly clear illustration – a case where it is not argued that the wrong person has been convicted for a crime which was committed, but a case where it is said that no crime was ever committed at all. Yet, despite support from politicians from both sides of the House for a one-off commission, a wide-ranging enquiry to examine Ellis has never occurred.”

Mr Hampton QC says that, in New Zealand, it’s impossible for any appellate court to broaden its focus and look in the complete round at the factual background of a particular matter where a wrong jury verdict is alleged.

“New Zealand courts, taking a traditional view, say in effect that they are constrained by both statute and convention to only look at the ‘narrow’, usually legal, issues raised by/on the appeal. And [they say] that the appellate courts are not some commission appointed to conduct some wide-ranging factual review as to the origins of the matter, whether shades of a Salem witch-hunt or not, or its overall means and manner of investigation.”

Mr Hampton QC also contends that the royal prerogative of mercy process is long out-dated and too constrained. According to him, two of its principal defects are:

  • that the “handling” of petitions for its exercise rests with “insiders” within the very system under critical scrutiny, rather than with a separate body of independent, objective observers, based and acting outside of the mainstream criminal justice system; and
  • that no proper re-investigation of the facts occurs – instead, reliance (or otherwise) will rest on the “fresh” materials put before the officials by the petitioner, rather than having a body with an uncluttered mind prepared to reinvestigate (whether fully or in discrete areas) the matter at issue.

Mr Hampton QC says the cost of establishing a permanent CCRC has been raised by some commentators as the underlying reason for political resistance to the concept.

“Well, how does one measure that as against the sort of miscarriage a wrongful conviction with its attached sentence and all its sequelae which such a Commission might well remedy? The Scottish model shows that costs are not outrageously high in any event, I think one to one and a half million pounds per annum and the Scottish experience, within a rather similar population base as our own, demonstrates the need for such a commission. Miscarriages do occur, it is all part of human frailty, but if remediable, why would a civilised state not take that course?”

Mr Hampton QC considers that, without a CCRC, the current system must rely heavily on “white knights” willing to work for little payment – with the likes of Rex Haig, David Dougherty and Teina Pora all depending on assistance from lawyers, private detectives, scientists, or journalists to help clear their names.

Mr Hampton QC’s views on the need for a CCRC are shared by Auckland QC and ADLS Vice President, Marie Dyhrberg QC, who told LawNews that many lawyers and judges have long sought such a body in order “to maximise confidence in the criminal justice system”.

“This is due to the lack of faith in the prerogative system as being available to all or many defendants. It is seen as rarely used due to this lack of faith, cost, delay and enormous amount of work that a defendant must do to properly advance the case there has been a miscarriage of justice that needs to be addressed.”

Ms Dyhrberg QC says the CCRC would have a mandate to undertake independent inquiries, call for more evidence, and involve/engage experts.

“The result is that there would be a greater enquiry into the merits of each individual case/ application, with the focus on acting with greater independence. The CCRC would carry out its functions in an inquisitorial manner, which is better suited to this kind of legal enquiry.”

She says the CCRC would also have the power to make inquiries into how miscarriages came about, and then recommend changes to avoid further miscarriages.

“It will act more as a fair trial regulatory body as well. The power of the CCRC to investigate more widely any systemic issues within the justice system will be of major benefit to the practice of criminal law and better protect accused persons. Its working will also be more transparent which will improve the integrity of the justice system in the eyes of the public.”

For his part, Justice Minister the Hon Andrew Little has said that he hopes to have the CCRC established by mid-2019, subject to the legislative process and funding decisions. 

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