New Zealand Law Society - A defence lawyer at the Criminal Justice Summit

A defence lawyer at the Criminal Justice Summit

A defence lawyer at the Criminal Justice Summit

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Auckland barrister Nicola Manning is an experienced criminal defence lawyer. She was an attendee at the Criminal Justice Summit, Hāpaitia Te Oranga Tangata which was hosted by Justice Minister Andrew Little in Porirua from 21 to 22 August. The summit brought together a wide range of perspectives from over 600 people, all of whom had come together with a commitment and focus on developing a plan on justice reform. Ms Manning shares her impressions as a defence lawyer.

What were the most important messages you took from the summit?

That “the revolution will not be televised!” It will happen within us and among us. In homes and prisons, on the streets and at the coalface.

The call for change is urgent and demands we examine the fallacies enshrined at the core of our justice system – the metaphor connecting blindness with fair impartial legal treatment should be first on the list.

This symbol of justice and the notion attached is deeply flawed and it’s time now to step back and address it. Judging is a distinctly human faculty not a robotic function. Justice is not blind. It’s not true for police, for victims, offenders, defence counsel, prosecutors or judges. We all make instinctive decisions and assessments affected by bias, based on our experiences and beliefs.

The push to include better representation on the bench acknowledges that the concept of judicial impartiality is complex and flawed. We each bring our culture, race, gender, sexuality to this work. Judicial decision-making is also conditioned by the institutional structure of the court system. We cannot deny this but must rather work out ways to have a productive conversation about it.

The summit highlighted for me how strong the call is for us collectively to become more conscious; we need to talk honestly about white privilege and the structural racism that is at the foundation of the justice system. White New Zealanders need to demonstrate willingness to listen, learn and let go. We need to confront and acknowledge that rather than a “broken system” we have a system that originates in, and was constructed on, privilege and power. A system that comes from a time when we knew much less about ourselves.

Science now provides us with unprecedented insight into human development and behaviour. It also challenges beliefs at the core of the justice system around personal responsibilty, punishment and deterrence. We know the critical importance of subjective experience on brain development in the first years of life. We recognise that our brains are influenced and regulated by those closest to us or effectively “built” in the interface between genetics and experience. The relationship between deprivation, trauma and neurocognitive impairment is well established. The vast majority of prisoners are impacted by poor mental health, addiction and/or traumatic brain injury. Incarceration does not mitigate cognitive impairment – its appropriateness and effectiveness must be questioned in this context.

Those that seek to quiet the discourse, or dismiss the relevance of “talk” underestimate the power of stories being told by people traditionally silenced and the transformational energy of these speakers. At the summit we heard profound accounts from former inmates of the fear, dehumanisation and degradation of the prison experience, and the isolation and ongoing societal rejection confronting them on release. We heard the stories of abuse, economic deprivation and loss that preceded the drift to crime for many. Gang leaders spoke, children spoke, partners spoke, mothers spoke, mental health and addiction service providers spoke. It was clear that a highly conscious cross section of the community supports a move beyond the current retributive paradigm.

A stark message for me was that even as a defence lawyer working closely with accused and their families, I had been detached by the mechanics and processes of the justice system (which I’m a part of) from what’s happening in reality and how people are being impacted. I thought that I knew more than I actually did, and that I had a more unique perspective than what was going to be represented at the summit.

The realities of incarceration were rightly brought to the forefront of the dialogue. Hearing stories of historical oppression was both overwhelming and illuminating. One thing that particularly affected me was talk of the urbanisation of prisons: how they have become another marae; people are being connected to prisons from childhood where visiting whānau in prison is part of life.

Everyone was on the same level at the summit. The hierarchies of the system were – for a brief time – removed. This created a powerful dynamic with judges, ex-offenders, advocates and victims all together. It made everything that was presented more jarring and affecting. It also made anything feel possible.

The weight of convention and the traditions of the court often create the feeling of being “out on a limb” when providing clients’ perspectives on their behalf. Now, I feel more empowered to confront the fallacies that are preserved by the court’s formality – an environment in which you can’t speak certain truths easily and without a sense of transgression. This demonstrates what a powerful silencer the court system is for all of us. That includes those who are disempowered, incarcerated and those of us who have a legitimate role within it. The hierarchies and norms are woven in and deeply oppressive.

A key message for me is that no one really feels heard because the truth is fundamentally eroded by this pantomime. When you remove the hierarchy, as the summit did, we clearly saw the abject suffering, pain and humiliation that’s experienced by the victims, the families, the perpetrators. The system itself was cited again and again, across the board, as a major factor in that trauma.

Was the summit a success for you?

Absolutely. Although the summit had a conventional format, the sheer power of the participants’ voices broke through and disrupted the space profoundly and unequivocally. It was a call to action. The format was repeatedly rejected and many of the people who needed to speak, spoke.

The summit was a success because the participants were highly conscious and could disrupt the narrative. There are many perspectives that still need to be canvassed and deeper conversations to be had but there was a great sense of power and energy within the space. I believe this was a unique and much needed opportunity to come together across the sector as equals; that what occurred was positive, transformational and will create a movement.

What was then reported about the summit was a powerful example of the dominant media thread. In particular, the weight given to the familiar narrative of just one of many stories of victimisation that was shared. The pre-written story that is easy to consume was a dishonest representation of events; it didn’t reflect the many narratives and eschewed a critical understanding of the situation. We have media and media consumers who lack insight and cynically conceptualise the debate as a simple polarity.

The individual tragedies that are perpetuated in much of the media disguise the true tragedy, which is mass inter-generational incarceration. This is what we as a society need to come together and solve.

What would you like to see happen now?

A good start would be the deconstruction of old narratives and familiar tropes. We need to embrace a meaningful “talk-fest”. I would like to do more listening and see more listening from colleagues in power across the sector. I encourage more talk and sharing of stories, more examination, truth, authenticity, bravery and a willingness to open up and let go of existing power structures.

We all need to be brave enough to truly grapple with the current system and try to change it. Part of the challenge for us as lawyers is to set aside our own personal interests and ambitions to meaningfully connect and contribute to the discourse. So many practitioners at all levels aspire to ascend the hierarchy, because we are such a hierarchical institution. The issues confronting the justice sector should give us all pause to consider a more altruistic approach that will see us relinquish power and try something new.

Criminal defence barrister Nicola Manning is based at Auckland’s Blackstone Chambers. She has worked privately and at the Auckland Public Defence Service, and has also appeared internationally.

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