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Law Reform |
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The flier for today's proceedings says that over
the next 15 minutes I am to "Set the scene," by talking about the
background to this seminar, and about opportunities for reform.
After I retired from the bench I was asked by the
Ministry of Justice to conduct a number of enquiries into claims of
miscarriage, and became concerned about the difficulty of producing clear and
adequate advice. Two aspects of the current procedures in particular seemed
to me to limit a reviewer's ability to do so. Firstly, although the Ministry made additional
enquiries if I so requested, each review was essentially one on the papers,
as none of the inquiries were by way of Royal Commission, and there was no
means of compelling discovery or other amplification of the evidentiary base.
Many things are clearer in hindsight. But when it was clear that a factual
issue of importance had not been resolved, it was often difficult to obtain
the further evidence needed to do so. Secondly, those engaged in the review process were
persons selected for their legal, rather than their investigative, expertise.
The two are quite distinct, and review work calls for both. So it was natural to look around to see whether
other jurisdictions did things better. That led to the discovery that both England and
Scotland had recently moved from procedures generally similar to ours to
having their claims of miscarriage assessed by specialist Review Commissions
set up for that purpose: so I went and had a look at them. While it did not
appear to me that their procedures offered a complete answer to the
difficulties encountered here, they were in my view plainly better than ours.
Most relevantly, the English Commission was already identifying, and having corrected
by reference to the Courts, many more miscarriages than had been identified
by means of the procedures previously in place. The Ministry of Justice was sympathetic to the idea
of some reform of our procedures. Indeed a discussion paper prepared in 2002
by Mr Neville Trendle in consultation with the
Ministry supported the setting up of a three-member board to receive and
assess claims, that board to be serviced by the Ministry, but doubted that
there would be enough work in New Zealand to justify setting up a fully
separate organisation. In the hope that a closer examination and
comparison of recent claims in New Zealand and the United Kingdom might help
gauge the likely volume of business of a NZ authority, the Ministry gave me
access to its claim files for that purpose, following which I had a second
look at the operations of the UK Commissions. For a number of reasons, the most important being
the paucity of data suitable for comparison, that work did not produce a
clear answer. But it gave absolutely no reason to think that the relatively
low number of claims of miscarriage in this country was a reflection of some
peculiarly British problem, or of our criminal justice system being markedly
superior to theirs. And examination of the NZ files showed that one reason
for our low claim figures was that Maori and Pacific Island inmates, who
between them comprised over 60% of our prison population, very rarely made
claims. All of which left me with the belief that if a like
authority to those in the UK were set up here it should have a sufficient
volume of business, but with the knowledge that the data on which that belief
was based were incomplete, that I might have got it quite wrong, and should
look further. This led in turn to the discovery that most common
law countries had quite an extensive history of studies into the frequency
and causes of miscarriages of justice, and that most overseas commentators
believed - First, that the principal causes of miscarriages
were the same in all the countries studied, though occurring in different
degrees: and Secondly, that wherever a closer examination of the
topic had occurred, this had shown that previous estimates of the frequency
of miscarriages had been conservative. It may be that we are extraordinarily fortunate in
our criminal justice arrangements, even as compared with the English and the
Scots, and that overseas analyses have little relevance here. But it was
difficult to find any evidence to support that possibility, and much easier
to conclude that the overseas studies gave significant support to the views I
had provisionally reached and justified putting them forward for critical
examination. I also thought that the overseas studies, which have attracted
little attention here, deserved to be better known. Hence the paper. Although it bears the publication date December
2005, it was written in the second quarter of 2004, and has only brought into
account two later developments. The first is the note, at p. 41, of a 2005
article reporting the emergence of difficulties between the English
Commission and the English Court of Criminal Appeal, which will need to be
read by anyone asked to draw up a charter for a New Zealand authority. The
second is the reference, at p. 88, to the Justice and Electoral Committee
report of August 2005, which rejected claims for a Royal Commission into the
Ellis case, but recommended "that there be reform of the Royal
Prerogative of Mercy system by the establishment of a body similar to the
United Kingdom's Criminal Case Review Authority." When I wrote the paper and asked the Foundation to
consider publishing it, I saw it as a preliminary study, pointing the way for
further research. And having in mind the likely fate of those who officiously
point the way before they have secured the ground, I thought that a seminar
at this point might well conclude with Val Sim
bearing my head out on a charger - and it was insufficiently comforting to
reflect that her unfailing courtesy would ensure that it was a sterling
silver charger. However the Select Committee's recommendation, by
indicating an existing measure of parliamentary support for some reform along
the lines proposed in the paper, clearly made it desirable that the issues
receive as early and broad consideration as may be. And I am today delighted
that so many people with experience of relevant aspects of criminal justice
have thought it worth their while to attend to discuss the issues and give us
the advantage of their experience. The fact remains that it is a preliminary paper, in
that it raises more issues than it answers, and repeatedly acknowledges that
presently available information does not permit precise diagnosis. That part which has received by far the greatest
publicity is the statement that, if the incidence of miscarriage in this
country is at all similar to that in the UK, "up to a score of prison
inmates may be unjustly incarcerated." I recall telling Warren Young and Val Sim in 2003 where my enquiries seemed to be leading, and
making a similar statement. They both cautioned me against including it in
any final paper because, they said, it would inevitably be given prominence
over all the rest. Having carefully considered that advice, I decided to
leave the statement in. It is still not possible to estimate the frequency
of miscarriages with precision. Prior to the establishment of the Review
Commissions, estimates of the frequency of miscarriage in the UK had ranged
from 1% to 5% of felony convictions. The accumulated experience of the
Commissions now suggests quite strongly that even the lowest of those
estimates was probably on the high side. It was plain that this comfortable
discovery should be recorded. But it seemed to me equally necessary to point
out the obverse of this new upper parameter, what it would mean if it were
concluded that frequency here was in any way similar to that in the UK, and
to do so in terms of bodies rather than percentages. In short, the burden of the paper is not that our
justice system is fundamentally flawed and in need of root and branch reform,
but that being dependent on human judgment it is, and always will be, subject
to errors, and that we can and should do more to identify these and minimize
their impact.
The promotion of front end reforms is of course a
principal function of such bodies as the Law Commission and the Ministry of
justice, both far better qualified for such work than I. It was, however,
impossible to read the overseas studies without seeing reports of front end
reforms which seemed to offer possible benefits here: and I was unable to
resist mentioning half a dozen of the more interesting. Having, for example,
presided over numbers of trials in which microscopic hair comparison, or the
evidence of jailhouse informants, formed part of a successful Crown case, it
seemed to me that a failure to note the current attitude of the North
American courts to such evidence would have been excessively casual. However the paper's references to such matters stop
short of making any detailed case for reform, and were inserted to encourage
their further examination by others with appropriate expertise. Thus, another
question raised, whether present directions on circumstantial evidence fit
the typical modern large trial, will need consideration by someone with more
statistical expertise than I possess. I make a less modest claim for the paper's
proposals for the reform of our procedures for identifying and correcting
those miscarriages which do slip through. These are summarized in the final
paragraph of p.91 of the paper, and in essence call for a separate and
independent review authority. Leaving aside the weighty constitutional argument
based on separation of executive from judicial functions, I believe both that
such a reform would result in a useful reduction in the number of
miscarriages going undetected, and that that it is only through the work of
an independent authority that the data needed for a better understanding of
the significance of miscarriages will be obtained. As do both the UK
authorities, I believe the total independence of such an authority from the
justice establishment is essential to its acceptance by those who believe
they have been the victims of unjust convictions. It is true that a fully separate authority would
involve significant additional funding. As to that, I cannot improve upon the
comment by the chairman of the Scottish Commission - "Of
course, it all depends on how robust you want your criminal justice system to
be." |
