Justice Minister Andrew Little intends to have the Criminal Cases Review Commission established by mid-2019.

In reponse to a written parliamentary question from National MP Christopher Finlayson QC, Mr Little has said this is subject to a number of factors including the legislative process and funding decisions.

The Labour Party said it would establish a Criminal Cases Review Commission in its coalition agreement with New Zealand First.

In 2016 New Zealand First said it wanted to establish a Commission as soon as it could do so.

A Criminal Cases Review Commission is an independent public body set up to review suspected miscarriages of justice and to refer deserving cases back to the appeal courts. Currently the Royal prerogative of mercy performs the same function in New Zealand.

Documents released under an Official Information Act request in May 2018 show that the Ministry of Justice began consulting on the proposed model for the Criminal Cases Review Commission on 10 January 2018, with external legal experts, academics, government agencies and "entities with similar functions (including the British and Scottish Commissions)". A month later the ministry had received responses from 19 submitters.

"There was universal support for the establishment of the Commission and consensus on much of the proposed design," the ministry reported, but noted that there had been areas of disagreement in relation to the proposals. These were redacted from the OIA document.

Complex issues

Further advice from the ministry to Mr Little in March 2018 stated that the design of the Commission was "complex" and there were a number of important issues, including the test for referring suspected miscarriages of justice to the courts, the Commission's powers to obtain information, and whether the Commission should have an own-motion inquiry power.

The ministry said the test for referral was arguably the most critical and complex element of the design of the Commission. While information on the actual test proposed by the ministry was redacted, it said its proposed test was informed by the core principles underlying the Royal prerogative of mercy and the referral mechanisms exercised by the UK and Scottish Commisions, including that:

• The courts should have an opportunity to reconsider a person's convictino or sentence if a miscarriage of justice may have occurred.
• Convicted persons are normally expected to exercise their rights to appeal against conviction or sentence before asking the Commission to intervene.
• The referral process is not an opportunity to simply repeat arguments or re-examine evidence that have already been considered by the courts.
• What is normally required to justify re-opening a case is "something new" - evidence or argument - that has not previously been examined by the courts.
• The referral test should be permissive, not mandatory, so a referral is not made where it would be contrary to the interests of justice.
• The Commission should be satisfied that the case to be referred is capable of supporting an appeal.

The ministry said submitters were broadly agreed with these underlying principles, but there were differing views on whether the proposed test sufficiently reflected these principles.

The ministry noted that Andrew Little had intended to have a Commission operating in early 2019, with enabling legislation passed in 2018. It now appears this has been delayed.