On 27 September 2018 Justice Minister Andrew Little introduced a bill to establish the Criminal Cases Review Commission (CCRC). Its purpose is to review convictions and sentences and decide whether to refer them to the appeal court.

The bill will replace the current referral power exercised by the Governor-General under section 406 of the Crimes Act 1961. At present someone who believes they have suffered a miscarriage of justice may apply to the Governor-General for exercise of the Royal prerogative of mercy (RPM). This may be exercised to grant a free pardon or to refer a conviction or sentence back to an appeal court. The Governor-General acts on the formal advice of the Minister of Justice (advised by lawyers in the ministry’s Office of Legal Counsel) when deciding to exercise this power.

The RPM will remain in force via the Letters Patent Constituting the Office of the Governor-General of New Zealand, and the bill will enable the Governor-General to transfer applications for the RPM to the commission. It also recognises the Governor-General’s residual prerogative powers, which include the grant of a full pardon.

The commission is not therefore a new function in the criminal justice system – it would be a change in who performs the function and how. The commission would not be an advocate for an applicant. Its statutory role would require it to make a considered legal judgement about whether an application has sufficient merit that an appeal court should reconsider the conviction or sentence.

The last pardon in New Zealand was given to Arthur Allan Thomas in 1979. He was pardoned by the Prime Minister after spending nine years in jail following the murder of Jeanette and Harvey Crewe. The pardon followed an application for the RPM and was granted on the basis that the police case against him was not proved beyond reasonable doubt. A Royal Commission of Inquiry found that the police planted evidence that was used to wrongly convict Mr Thomas and that he should never have been convicted of the murders.

Why the commission?

The Ministry of Justice says the establishment of the CCRC is intended to enhance the system by providing a more transparent and effective system. It will be an independent body focused on identifying and responding to possible miscarriages of justice.

In addition to specific individuals who will benefit from the establishment of the CCRC, the government and the public will indirectly benefit as it is expected that public trust in the criminal justice system will be enhanced.

The exercise of the RPM may result in a pardon, although this is rare and more frequently a case is referred back to court.

The RPM has been exercised to refer a person’s conviction or sentence back to the courts in only around 9% of applications. About 170 applications were made for the RPM between January 1995 and September 2018 – an average of seven to eight a year. The RPM has been exercised 15 times in that period to refer a person’s case back to the appeal courts.

There are a number reasons put forward for changing the current process.

• Perceived lack of independence: Officials who currently produce the advice that informs the Minister of Justice who oversees the work of the Governor-General, work within the same system. While possibly just a perception, this potentially negatively impacts public confidence in a system and perhaps may be reflected in an unwillingness to engage with the system.
• Timeliness: The officials who review applications are not solely dedicated to that job.
• Resources: The applicants must provide information and make out the case for RPM. Well-resourced applicants with access to professional assistance are advantaged in the current process. Applicants who are not well-resourced and those who do not qualify for legal aid may not be able to make out an application.
• Transparency: The reasons for the Governor-General’s exercise of RPM are provided to an applicant, but are not proactively made public. This may contribute to the low number of applications and/or lack of faith in decisions.
• Other barriers: Māori and Pacific people make up 60% of the prison population and yet their proportion of applications has been estimated at between 11-16%. This may have been caused by low visibility of the process, the proof and cost burden, lack of confidence in the criminal justice system and language and cultural problems.

Limitations and risks of the proposed CCRC

The public may not believe that the CCRC is independent, which may show in low application numbers. To mitigate this risk the structure of the CCRC should be as independent as possible, including educating the public and those in prison about it.

Applications may take as long as, or longer to be resolved through the CCRC as under the status quo as investigations are complex and time-consuming. To mitigate this risk the CCRC will need to be well resourced and appropriately empowered, for example, empowering it with powers to compel information from public and private bodies.

Commissions in other jurisdictions

Several jurisdictions have established a CCRC, including the United Kingdom (England, Wales and Northern Ireland), Scotland, and Norway. These models provide valuable experience to draw upon in considering the design of a CCRC for New Zealand.

United Kingdom

A series of cases arising during the 1980s pointing to miscarriage of justice and the efficacy of the RPM system led to the establishment of the Royal Commission on Criminal Justice (RCCJ) in 1991. The recommendation was that an independent authority be established, primarily due to the Commission’s view that the RPM was incompatible with constitutional principle, regarding separation of powers between the courts and the executive.

The RCCJ was set up as an independent body with 14 commissioners and a staff of about 70. The Commission reviews cases after the applicant has exhausted all appeal rights, except in exceptional circumstances. Since its establishment in 1997 the Commission has referred 652 cases. Of the 642 cases where appeals have been heard by the courts, 433 appeals have been allowed and 196 dismissed.

Scotland

The Scottish CCRC was set up for the same reasons. Before its establishment in 1999 the number of applications to the Secretary of State varied between 30 and 60 per year. In its first year of operation it received 127 cases.

Since its establishment the SCCRC has concluded all but two of the 2,447 applications received. Of those, 1,207 were concluded after a full review. Of the 121 cases heard by the High Court, 79 appeals have been allowed and 42 appeals dismissed.

Norway

From its establishment in 2004 until 2017, the Norwegian CCRC received 2,285 petitions and concluded 2,148 of them. Of these, 279 cases have been reopened and 422 petitions have been disallowed. There have been 1,128 petitions rejected because they could not succeed, while the remainder, 319, were rejected without the cases being reviewed on their merits.

New Zealand viewpoints

The New Zealand Law Society’s Criminal Law Committee is considering the bill. The New Zealand Bar Association supports the establishment of a CCRC. Both are likely to make a submission to the Justice Select Committee.

Two prominent criminal law commentators were asked for their views on the current system and the proposed commission. AUT Professor of Law Warren Brookbanks is a member of the Law Society’s Criminal Law Committee and co-author of Principles of Criminal Law. His comments were given in a personal capacity.

Auckland barrister Marie Dyhrberg QC is a former chair of the Criminal Law Committee of the International Bar Association and a former President of the Criminal Bar Association.

What do you think of the current Royal prerogative process?

Warren Brookbanks: The current process is based on a legal procedure that has been part of our law for many years. The current procedure gives to the Governor-General a broad discretion to refer any conviction or sentence referred to him or her for the exercise of the mercy of the Crown to either the Court of Appeal or the High Court, depending on the jurisdiction in which the appeal would normally have arisen.

In effect, the prerogative, in a modern context, provides a means of re-opening criminal cases where a person may have been wrongly convicted or sentenced. In such cases the Governor-General, acting on ministerial advice, is empowered to grant a pardon, reduce a sentence, or refer the case back to an appellate court for reconsideration. Traditionally, the Royal prerogative of mercy was a power of the monarch to grant pardons to convicted persons. In particular, it permitted the monarch to withdraw, or to provide alternatives to the death sentence. There are two aspects of this to consider.

The first is that the prerogative, at least in New Zealand, has never been exercised by the monarch directly. In New Zealand it has always been exercised indirectly by her representative, the Governor-General.

Secondly, its modern manifestation is primarily a matter of referral to the courts, even though there exists a limited power of reference to the Court of Appeal on any point arising in the case. In that scenario the Governor-General retains his or her residual discretion to determine the proper response to the application after receiving the Court of Appeal’s opinion.

My point is that there is nothing about this process that demands an extra-judicial determination by a representative of the Crown. The process is, arguably, archaic and cumbersome, and unlikely to result in speedy justice. And since its principal concern these days is dealing with possible miscarriages of justice, that is not, in my view, a task well-suited the office of the Governor- General, even if the work is done by Government lawyers.

Marie Dyhrberg: Lawyers within the ministry undertake a review of applications in relation to convictions and sentences at the point appeal rights have been exhausted, but when there is a claim there is a miscarriage of justice that requires a stay or another appeal.

The Royal prerogative of mercy is therefore not exercised by an independent body that focuses on whether there is a miscarriage of justice that justifies a pardon or a return to the Court of Appeal for reconsideration. Therefore, there is a perception of a potential conflict of interest, and that fairness in relation to the enquiries is in some way compromised by this perception or reality of lack of independence. The process in relation to the prerogative is costly, time-consuming, and unwieldy in many respects.

Do you support the establishment of a CCRC? If so why?

Marie Dyhrberg: The CCRC would have more powers and the mandate to undertake independent enquiries, call for more evidence, involve/engage experts – all this can be done on its own motion. This means there is a greater enquiry into applications and more independence in terms of acting in an inquisitorial manner.

Those who make up the CCRC would be solely focused on determining if there has been a miscarriage of justice, again enhancing the independent nature of any enquiry.

Also, the CCRC can make enquires into how the system works which brings about the miscarriages such as disclosure practices by the police and Crown, also policy considerations and then recommend changes to avoid further miscarriages. It will act more as a fair trial regulatory body as well. The power of the CCRC to investigate more widely any systemic issues within the justice system will be of major benefit to the practice of criminal law and better protect accused persons.

The CCRC will be able to deal with applications more speedily and efficiently/effectively. Its working will also be more transparent which will enhance the credibility of the justice system in the eyes of the public.

Also, decisions of the CCRC will be subject to judicial review which means any decisions will be subject to scrutiny in terms of those decisions being fair, lawful and impartial.

Warren Brookbanks: I do support the establishment of a CCRC. The main reason is that I think a new Crown agency, dedicated to resolving miscarriages of justice, with a permanent presence and function, is likely to be a more efficient body to handle these petitions. Furthermore, I think it is likely, with more defendants entering the criminal justice system as New Zealand’s population grows and more cases of possible miscarriages of justice being exposed, that the current system will struggle to meet the challenge and be able to deliver justice in a timely manner. It would also mean that New Zealand is in line with other jurisdictions which have created similar independent bodies to investigate possible miscarriages of justice. Nor would a CCRC override the exercise of Royal prerogative of mercy, which under the bill to establish the CCRC, remains unaffected.

What issues, if any, would there be in establishing a commission?

Warren Brookbanks: I don’t know if I am the best person to answer that question. But it occurs to me that, because of its radical nature, the bill will need cross-party support to get though the Parliamentary process. However, I suspect there will not be a lot of opposition to the proposal so that should not be a problem.

The next issue is likely to be the choice of persons to act as commissioners. There can be up to seven commissioners, of which at least one-third must be legally qualified and two-thirds with experience in working in the criminal justice system, or with other knowledge and expertise relevant to the commission’s functions. It will obviously be important to ensure that the commission is truly representative and equipped to address the broad legal and social complexities that may have given rise to a miscarriage of justice.

Marie Dyhrberg: No issues – many have advocated for such a commission or body to be established for many years to maximise confidence in the criminal justice system. This is due to the lack of faith in the prerogative system as being available to defendants. It is seen as rarely used due to this lack of faith, cost, delay and enormous amount of work that a defendant must do to properly advance the case where there has been a miscarriage of justice that needs to be addressed.

Do you think this is the best option, rather than perhaps applying more funding to the current system?

Marie Dyhrberg: Funding is not the only issue – it is the whole process that is not working – as above. The CCRC will be able to generally issue recommendations in a general sense and not just for a specific case before it. This must be of enormous benefit to all branches – defence counsel, prosecutors, police, Corrections and so forth.

Warren Brookbanks: I personally think this is the best option. Throwing more money at agencies that have become dated and no longer fit for purpose is a form of ‘ad hocery’ that often results in more cost than creating a new, dedicated body. Furthermore, I think a new, professionally constituted agency like the CCRC will have the capacity to be appropriately responsive to New Zealand’s obligations under international human rights conventions.

Where to next?

The Criminal Cases Review Commission Bill had its first reading on 25 October and has been referred to the Justice Committee, which is due to report by 25 April 2019.

The first reading was passed by 64 votes to 55, with the National Party voting against. National’s courts spokesperson Chris Penk says his party supports the government’s stated intention of preventing miscarriages of justice.

“That said, we’d prefer a stronger policy emphasis on preventing miscarriages of justice from occurring in the first instance and also possible reform of existing structures,” he says.

“From our perspective, the bill in its current form cannot be supported as there’s no clear case for how this new body could solve problems that the government says exist in the current system. For this reason, we voted against the bill at its first reading.”

Mr Penk says as the Regulatory Impact Statement notes, cases may take just as long to be resolved as is currently the case, or even longer. He says the exceedingly low threshold for referring a case back to court – simply that doing so would be “in the interests of justice” – will invite a litany of re-litigation.