http://www.justice.govt.nz/pubs/newsletter/justice_matter/issue-12/chapter-8.html

Ministry of Justice
Justice Matters
December 2001
Issue 12

Process for Royal prerogative to be reviewed

The process for dealing with applications for the Royal prerogative of mercy, a safeguard of New Zealand's criminal justice system, is to be reviewed.

Applications for the prerogative are made to the Governor-General, who refers them to the Minister of Justice. He in turn seeks advice from the Ministry of Justice.

Warren Young, Deputy Secretary of the Crime Prevention and Criminal Justice Group, says consideration of applications currently has to be balanced with other programmed work and it is crucial that the value placed on the prerogative is maintained. He says the quashing of the conviction of David Dougherty for rape highlighted the value of the availability of the Royal prerogative.

Applications referred to the Minister are usually considered by the Ministry's Criminal and International Law Team, whose advice is often then reviewed by the Ministry's Office of Legal Counsel, headed by Val Sim, before being passed to the Minister.

"This creates a reasonably robust two-tier phase for considering the application," she says.

Applications may also reviewed by a Queen's Counsel (QC) or former judge. Sometimes the Ministry will refer the application as a whole to a QC or a former judge for investigation.

Val says that if there is a substantial risk that a miscarriage of justice has occurred, the case can be referred to the Court of Appeal, which can quash a conviction (as happened in the Dougherty case) and, if appropriate, order a retrial.

While fresh evidence is the usual requirement for the exercise of the prerogative, Val says it is not unknown for other issues to be raised, such as the competence of defence counsel.

While successful applications for the exercise of the prerogative are usually finally decided by the Court of Appeal, the Governor-General also has the power to issue a pardon. This has only happened in a handful of cases.

In England this year Warren visited the Criminal Cases Review Commission, an independent body that investigates applications there for the exercise of the prerogative. It comprises about 15 commissioners appointed for five years, and has a staff of about 80, mostly case review managers and support staff.

He says the Commission receives about 800 applications each year, as well as dealing with a large backlog of cases from prior to its establishment in 1997. In New Zealand there have been about 55 applications since 1995.

Warren says the Commission's investigation process is very structured.

"Firstly they check that the person's case is eligible to be considered for review and, if so, they do an initial investigation to determine whether there is a real possibility that a miscarriage of justice may have occurred," he says.

"If substantive issues are raised, the case is allocated to a case review manager and the issues for investigation are identified. After investigation, a decision is made by one or more commissioners on whether to refer the case to the Court of Appeal."

The Commission does not have the power to pardon a person, but can refer a case to the Home Office for consideration for the exercise of the Royal prerogative. This has not happened to date.

Warren says while the Commission may not necessarily be a suitable model for a country of New Zealand's size, its achievements and methods of operation will receive close scrutiny during the review of New Zealand's processes.