Judges not wanted on miscarriage of justice body

Judges will be locked out of a proposed commission to review claims of miscarriage of justice if senior members of the legal profession get their way.


The Justice Select Committee has been hearing submissions to a Bill to set up the Criminal Case Review Commission (CCRC). The commission, a key plank of the government’s justice policy, will review convictions and sentences, and determine whether to refer them to an appeal court.

The select committee has been told that not only should judges not be appointed to the commission but they should be kept at arm’s length from its operations.

Christchurch barrister Nigel Hampton QC says there are significant concerns about appointing judges to the CCRC, many of them founded on the nature of New Zealand’s small, tight-knit judicial community.

Speaking on behalf of the New Zealand Public Interest Project, Hampton says it’s important the commissioners represent a diverse range of skills, knowledge and experience, which would direct its inquiries.

“I implore that when commissioners are appointed that you don’t appoint judges or former judges to it,” he says.

“It’s a very small pool in New Zealand, who all know and interact with each other and would be susceptible to the same arrows that we now fire at the section 406 process.

“I think [there should be] independence on that commission.”

AUT law professor Warren Brookbanks also raises the question of whether judges should be eligible for appointment to the commission.

In his submissions to the select committee, made on behalf of the New Zealand Law Society (NZLS), Brookbanks said the society was ambivalent about the issue but noted it could raise concerns about the commission’s independence from the judicial system.

Public perceptions of judicial influence may undermine the commission’s credibility, resulting in limited uptake of its services, he says.

Speaking later to LawNews, Brookbanks said the NZLS “pretty much endorsed the comments of other submitters like Nigel Hampton.

“It’s not a question of whether judges are competent for this role. Their competence is not in question. It is a question of whether it is appropriate for the purposes of this commission. Perception is paramount,” he says.

“In addition to the potential for conflicts of interest, if current or retired members of the judiciary were to become members there is also a perception risk in relation to the proposed ‘own motion’ powers of the commission.

“This arises because the commission would have the power to scrutinise aspects of judicial practice or court procedures involving judges who would almost certainly be known to the reviewing commissioner.

“However, a concern we noted in the submission was that because our jurisdiction is so small, excluding such a group of highly qualified and otherwise eligible people could reduce the pool of available people.

“For this reason we suggested the Bill itself should clarify as to whether current and former judges are eligible for such appointments.”

Justice Minister Andrew Little appears intent on keeping the commission at arm’s length from the judiciary.

Last year he revealed the commission won’t be based in Auckland or Wellington – a move designed to keep it away from the influence of judges.

This was in line with the model of similar bodies in Scotland and England where such commissions are based away from the main centres of political and judicial power.

Little says miscarriages are currently handled through the Ministry of Justice but the new commission will be independent of the ministry as a way of keeping it free from the perception of undue influence.

“There will be people in prison who should not be there. The benefit of the commission is that it will use a more methodical and systematic approach to dealing with claims of miscarriages of justice.”

The commission will review convictions and sentences where a miscarriage is suspected and can refer cases back to the appeal courts, but it does not determine guilt or innocence.

Hampton believes the commission should also allow appeals on behalf of people who have died.

In his submission to the select committee he said appeal rights currently die with the appellant and there was no provision in the Bill for the commission to examine whether a person who has died may have been wrongly convicted.

“Peter Ellis comes to mind, Hampton says. “If he were to die. I think [that] is an extraordinary miscarriage of justice.”

Ellis was found guilty in 1993 of sexual abusing children at the Christchurch Civic Creche where he was doing community service. He was sentenced to 10 years’ imprisonment.

Despite considerable public disquiet about the safety of his conviction, the Court of Appeal and a ministerial inquiry subsequently upheld it and Ellis eventually spent seven years behind bars, all the while protesting his innocence.

Hampton says in contrast to most miscarriage cases, where the wrong person is convicted of something, “Ellis has been convicted of crimes that never existed.”

“If he were to die, he would still die a convicted man. Surely there should be a vehicle available through this Bill to have that sort of possibility referred to a commissioner?”

Simon Mount QC, who also presented a submission to the select committee, told LawNews the Bill does not give the commission the power to access confidential or privileged information, which he believes is a deficiency.

Mount drafted the submission with Sir Thomas Thorp, a leading proponent of a Criminal Cases Review Commission, before the former High Court judge died last October.

Mount says not having the power to access confidential or privileged information would leave New Zealand’s CCRC in a weaker position than similar commissions in England, Wales and Scotland, and the Ombudsman.

“The court should have the power to make an order to require the disclosure of privileged information in New Zealand, where there are proper grounds to do so.”

Mount says there is no doubt there will be cases where information that would help to establish innocence will be contained in confidential or privileged documents.

There are frequently issues of public concern that information is being withheld on grounds of privilege, particularly by government agencies.

That information could be quite critical to uncovering a miscarriage of justice, he says.

“I have no doubt it is important for public confidence to be able to say an independent body has looked at the material otherwise held on the grounds of privilege.”

A court order would be a safeguard, he submitted.

“In correspondence with Sir Thomas, the Ministry (of Justice) raised a concern about whether such powers would be unprecedented in New Zealand.

“However, both the Evidence Act 2006 and Criminal Disclosure Act 2008 give the courts the power to order disclosure of material that would otherwise be withheld on the grounds of privilege or confidentiality.

“Indeed, the ‘innocence at stake’ exception to privilege has a long history in the common law.” 

During the first reading of the Bill in October, Andrew Little said miscarriages of justice unjustly deprived individuals of their freedom and undermined public confidence in the justice system.

“It is therefore vital that we have robust mechanisms to identify and remedy miscarriages of justice where they occur. This Bill advances those objectives by establishing a Criminal Cases Review Commission,” he told the House.

An official document from Little’s office last year reportedly showed just 11 people in eight cases have been compensated for wrongful conviction since 1998, a figure that some commentators describe as remarkably low.

The document said there was no reliable estimate or way of knowing how many people in prison were wrongfully convicted.

However, in an interview with LawNews several years ago Sir Thomas Thorp said based on the experience of England and Scotland, there were likely to be at least 20 innocent people in jail in New Zealand.

Referrals by the Scottish Criminal Cases Review 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 said one of the reasons for the low number of miscarriage of justice claims here is that Maori and Pacific Island inmates, who make up more than 50% 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.”

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