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The
Christchurch Civic Creche Case |
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In the last few years
there have been a number of criminal cases in which the conviction of the
accused has not been the end of the matter. Even when the
conviction has been upheld on appeal and occasionally even after some sort of
post-appeal inquiry, unease about the justice of the case has lingered. Probably the most
famous case to fall into this category was the murder conviction of Arthur
Allan Thomas, who was eventually cleared only after a protracted commission
of inquiry. A more recent instance is the conviction of Peter Ellis for
offences against children. A trial, two appeals and two inquiries have all
failed to lay to rest misgivings about aspects of the case. Such doubts, when they
are reasonably based and widely shared, are corrosive of confidence in the
justice system. Recognising that, a retired High Court judge, Sir Thomas
Thorp, after a two-year study of the nature and incidence of miscarriages of
justice, has advocated the establishment of an independent authority to look
into cases that the system may not have dealt with adequately. It is not a new idea.
The Ministry of Justice has considered it and in its report rejecting a
petition on the Ellis case, the parliamentary Justice and Law Reform
Committee recommended such a body. It is an idea that has much to recommend
it. Many other
jurisdictions with legal systems like New Zealand's have such bodies, England
and Scotland being notable examples. In England, disquiet about the capacity
of the legal system to deal with miscarriages of justice became widespread
after a series of high profile convictions, often involving alleged IRA
bombers, were overturned in the early 1990s. As in New Zealand,
there had been provision in England for a ministerial review of suspect
cases, but it tended to be slow and unresponsive and because it occurred
within a government department was thought to be biased in favour of the
Crown. The solution was the establishment in 1997 of a Criminal Cases Review
Commission, with the task of undertaking a review as independent as it was
possible to be from the Crown justice apparatus. The English body
consists of at least 11 commissioners, nominated by the Prime Minister and
supported by a staff of independent investigators. At least one-third of the
commissioners must be legally qualified, but the rest do not, and at the
moment their professions include taxation expert, television investigative
reporter and social worker. Unless there are exceptional circumstances, the
English commission takes cases only when the normal avenues of appeal have
been exhausted. To qualify for reconsideration an applicant must establish
that there is a new argument or fresh evidence that was not raised at the trial
or on any appeal. The process involves an investigation by the body's
independent investigators, after which the commissioners turn the application
down or refer it to the Court of Appeal with a recommendation that the case
be reconsidered. As might be expected,
many applications are found to be without merit. As has often been observed,
if you believe the prisoners' own protestations, the jails are full of
innocent people. In the first eight years of its existence the English
commission found that fewer than 4 per cent of the 8300 cases it received
deserved to be referred to the Court of Appeal. Of them, however, nearly
two-thirds of the convictions were quashed. They included at least two murder
cases from the 1950s in which the convicted person had been hanged. There is no reason to
believe that the number of miscarriages of justice in New Zealand is
abnormally high but the system can sometimes appear inadequately responsive
to legitimate misgivings. How to cater for them is not an easy question. Cases cannot be
endlessly argued, and the rights of victims to some finality must also be
respected. All the same, unsafe convictions do the legal system no good, and
some sort of backstop organisation that can make an independent assessment of
the hard cases is worth serious consideration. |
