Today’s special issue of Salient – Victoria University’s student magazine – critiques the criminal justice system

You’ll have heard of JJ Wood – Mt Albert aspirant, Salient editor, culprit of the “Lundy 500” and, of course, a Pundit reader.

Wood and his fellow journalists are students; satire is Wood’s metier. But today, in “The Justice Issue” of their magazine, they are plainly in earnest. In response, I offer a post that is rather longer than usual, with no apologies. When I saw Wood on Friday he looked exhausted, and a tad apprehensive, as a young man fresh from a public brawl with Palmerston North might well be. “We worked hard on this,” he said.

Embedded, as I am, somewhere in the vicinity of the bowels of the justice system – although not an apologist for it – I expected and dreaded having to lay out the case for the defence. One gets so used to hearing how it is all going down the toilet. The scales have tipped too far in one or the other direction; key planks are being whipped out from beneath Justice’s dainty feet.

The point I would want to make, I thought, is that things evolve, including criminal justice. Court systems, groaning under the weight of their load, have evolved too slowly. Reform is an imperfect, iterative process – but by and large, a balanced one. I know this, because prosecutors are as ready and as frequent with their complaints about defence-oriented initiatives as defence counsel are about prosecution-oriented ones.

It’s as if Wood read my mind:

“Our conceptions of justice, like our understanding of science, should be constantly being refined. … Justice is evolution in motion.” (Salient editorial, p.4)

I dreaded having to lay out the case for the defence because, like all other law-making, criminal law-making is politicised. Aspects of it – sentencing and parole, for example – are among the most highly politicised. Sometimes, things happen or fail to happen for the wrong reasons.

“Something is going wrong somewhere. The evidence shows this. We as a country just don’t seem to have the courage to engage in rational debate about the entire system, nudging it in the right direction.” (Salient editorial, p.4)

Take a reasonably innocuous example, that has been and probably will continue to be raised, until people get used to it. From June 29 this year, 11:1 majority verdicts may now be entered in New Zealand. The arguments for and against were finely balanced; if it had been a criminal trial, one might have taken the view that the burden of proof had not been discharged.

But nonetheless, the arguments in favour were sufficiently robust that around half of what policy-makers are pleased to call “like minded” jurisdictions (such as England and Wales and Australian states) provide for majority verdicts. In those jurisdictions, the majority is typically 10:2.

A unanimous verdict of twelve jurors is supposed to be a manifestation of “beyond reasonable doubt”. Implicit in that is the assumption that the dissenter is a proxy for reasonableness – that dissent equals reasonable doubt – which is not always true. Sometimes jurors are unreasonable. The number reflects historical convention, and remains the typical pattern, but New Zealand juries are from time to time smaller if jurors have been discharged. If 11 or even 10 suffices to prove guilt in such a case, why should it not suffice as the basis for a majority verdict?

Whatever the merits of that, few seem to know about, or acknowledge, the simultaneous reforms to try to address a far more insidious problem: the unrepresentativeness of juries, which affects their capacity to achieve “trial by peers” and stand in as a valid proxy for community standards.

More than half of those summoned for jury service are excused, pleading the special nature of their occupation, family circumstances, and so on. A disproportionate number of criminal defendants are Maori, yet Maori are notoriously under-represented on juries, for reasons that are not entirely clear. Perhaps it's because they are under-represented on the electoral roll.

The conversation continues. Jury trial threshold changes have been publicly signalled by Simon Power. A defendant may currently elect jury trial if charged with an offence punishable by more than three months’ imprisonment. The Minister is mooting three years. Three months is low by international standards, but it is the threshold guaranteed by the Bill of Rights. Parliament can of course choose to breach the Bill of Rights. Or, by simple majority, it may amend it, like any other piece of legislation.

Trickily, the Minister’s motivation stems from the Bill of Rights too – the right to be tried without undue delay. Nineteen criminal cases were stayed in 2007/08 because delay had become “undue”. A stay means that the case will not proceed, and is deemed to be an acquittal.

The Salient feature article focuses on miscarriages of justice. Both front-end and back-end reforms affect the incidence of justice miscarriage; in other words, criminal trial processes, and appeal and review processes post-conviction, are both relevant. The feature explores the calls for a new independent body, analogous to the Criminal Cases Review Commissions (CCRC) established in England and Scotland.

If I might express just a whiff – the merest zephyr – of personal frustration, a recurring phenomenon has been evident in the so-called “debate” for years. That is, both sides talking past each other; standing one on each end of the scales, as it were, yelling at each other. “How attractive-looking that CCRC is,” say the protagonists. “How robust Ministry of Justice processes are,” responds the establishment. Neither ever seems to understand the other any better.

There are two pertinent questions. Would a CCRC offer benefits that cannot be achieved by the current model? And are those benefits worth the likely several million dollar cost?

Putting “cost” and “criminal justice” in the same sentence is anathema to idealists. However, the discrepancy alluded to in the following two Salient quotes troubles me more than debating cost per se. Chief Justice Sian Elias on sentencing policy: “risk cannot be eliminated, and… the costs we are absorbing to try to do so, are disproportionately expensive” (Blameless wisdom, p 43). Auckland University associate law professor Scott Optican, on miscarriages of justice: “if there’s been even one person, then that’s enough. It’s not a numbers argument.” (For great justice!, p.40).

It looks as if we are not throwing the money around even-handedly here.

Vote: Justice competes with all of the other lines in a finite budget. It may be right to argue that it should have an open cheque book. Taking that argument to its natural conclusion may also have some very serious and unjust consequences for education, healthcare, super, and so on. Ask the Garth McVicars of this world, “how much extra tax will you personally pay, to lock up X category of offenders for Y extra years?” You might start to get some different answers.

The same is true of the criminal case review processes. We don’t know how often the system, either the criminal trial system, or the royal prerogative review process, is failing. Various “best guess” methods indicate that the current 10-12 royal prerogative of mercy applications per annum in New Zealand is too low, relative to the incidence of miscarriage in other jurisdictions; the number of applications is in any event a meaningless method of ascertaining how many miscarriages have actually occurred.

We know that there are numerous opportunities for fallibility, at every point in the system. From the lowliest police crime scene investigator to the highest appellate court judge, it is a human system and, therefore, error-prone.

Not knowing the size of the problem, how much will we invest in it in these straitened times? Given the systemic fallibility, is any amount of investment, no matter how infinite, capable of reducing to zero the risk of error?

The present post-appellate system of reviewing criminal convictions (the royal prerogative system) is criticised on two grounds. There are alleged process problems – for example, a dispute about whether the Ministry of Justice’s review and advisory role should be more investigative. The criticisms may or may not be valid; even if all of them were, they could be addressed within the Ministry by procedural, structural and, perhaps, legislative change. To a policy analyst’s way of thinking – a Treasury analyst’s, let’s say – the establishment of a new body is not justified, if the existing one can do the job.

Secondly, decision-making criteria and approach are criticised, essentially on the basis that both are unduly cautious. A cautious approach is legitimate. The ex post facto substitution of one view for another will not necessarily be a better-qualified view. There has to be an objectively verifiable way to test that the system is not simply reacting to flag-wavers for particular causes; those who shout loudest and longest, in other words. A CCRC would face the same dilemmas.

That caution is embodied in threshold tests such as the requirement for fresh evidence that is credible and cogent, or more than trifling procedural error. Procedural requirements are the criminal justice system’s buffer against fallibility. By extension, there is at least some logic in saying that, if due process has been followed at every step, there should be no basis for challenging the veracity of the resulting conviction.

But equally, if the criminal justice system is first and foremost a search for truth – which even an adversarial system is – we shouldn’t be bound by reference to due process when there are any grounds at all for thinking error has occurred.

It remains to be seen what difference the Supreme Court’s decision in R v Matenga will make. As I noted last month here on Pundit, it has, perhaps, the potential to transform a culture of formalistic deferral to prior jury verdicts and judicial decisions. If a “large and liberal” interpretation was taken of Matenga – if the Court of Appeal and the Ministry of Justice both embraced the opportunity – it would make the case for a CCRC more difficult, or less necessary.

It is not going too far out on a limb to say that royal prerogative matters have not always been well-handled. If, either now or in the future, the criminal case review process was having the backhanded effect of undermining public confidence and protecting the system it is meant to police, you might as well not have it at all. That is the principal leg the case for a CCRC has to stand on.

Finally, I can’t improve on the description of the justice system Wood himself obtained and used in closing; I hope he doesn’t mind if I co-opt it.

“You just gotta live with it - it’s a broken car, but it’ll get you there. You have to accept it is an imperfect thing, but it is the least imperfect thing we’ve got going.” (Senior Lecturer in Media Studies Dr Douglas Van Belle, quoted in An imperfect thing: The media’s influence on justice, p.35)