"It’s not that there is anything fundamentally wrong with the judicial system, but mistakes do happen and you need a process to correct those mistakes."
— Colin Carruthers QC
Three weeks after its launch, the new Criminal Cases Review Commission (CCRC) had already received 30 applications for cases to be reviewed.
Speaking to LawTalk, the Chief Commissioner Colin Carruthers QC tells us that he had expected a high number of applications after the launch on 1 July, although based on overseas experience he thinks these will drop after an initial spike.
Lundy referral expected
Some cases are to be expected, says Mr Carruthers. But while it was too early to say which cases the commission would consider, there are high-profile ones that he knows the commission will be dealing with.
“I’ve had correspondence with some of those I knew were likely to be applying. We’ve had correspondence with the [Mark] Lundy representatives and I know we’ll get an application there,” he says.
“It remains to be seen what our referral rate will be. But it is part of our reputation that we do get accepted by the courts as a reliable body.
“On the other hand we have to be careful in terms of the people that we are serving that we ensure we don’t adopt a too conservative view in not referring cases that should be reviewed. So, there is a balance to be struck and that will be an essential part of our work.”
Anyone can apply to have their conviction or sentence referred to an appeal court, if they believe that a miscarriage of justice has occurred.
The CCRC will not make a decision on any case but will determine whether it can be referred to the appeal courts.
The commission’s website notes that the tests to refer a case to an appeal court include factors such as whether the convicted person has exhausted all appeal rights, whether there is fresh evidence and the prospects of a referral succeeding.
“We’ve got a number of powers,” Mr Carruthers says.
“The routine ones will be applications by convicted or sentenced people but if the commission sees, say, an investigative article about a particular crime, we have got the power to investigate on our own initiative. But we must get the consent of the person who has been convicted or sentenced. And if they don’t give consent then we cannot go any further,” he says.
Mr Carruthers says a person must be alive at the time of the application and if the person applying for a review does die during the process then they have a discretion to stop investigating the application.
“We may have to revisit that with the Peter Ellis case because the upshot of that case may well be that the Supreme Court says there is a reputational issue that the law ought to look at even though Mr Ellis is dead.
“That also raises one of the powers that we have: if we see something that is systemic that is leading to cases in a repeated way or some other issue of that kind we have the power to conduct an inquiry and report to the Minister of Justice on that and that then has to be tabled by the minister in Parliament.”
The commission’s referral power requires the body to state the reasons for the referral. After making a decision, the CCRC provides a summary of reasons for its decision and it has to publish that decision.
While there is an over-arching consensus on righting wrongs, the CCRC is also committed to tackling long-standing issues on ethnic and cultural aspects.
Its website states that: “We have procedures that ensure the investigation process is responsive to Māori and Pacific cultures, so that we are reflecting our country’s diversity.”
If we see something that is systemic that is leading to cases in a repeated way... we have the power to conduct an inquiry and report to the Minister of Justice on that and that then has to be tabled by the minister in Parliament
The CCRC has a formal relationship with the Department of Corrections whereby they can display posters and brochures in all the country’s prisons, Mr Carruthers says.
They also have an 0800 number which can be accessed from the exercise yard as well as from a private room which provides direct access to the commission.
“We have really developed a good relationship with Corrections to ensure that we get access to prisoners because the Royal prerogative system just hasn’t attracted the applications by Māori or Pasifika as a general rule and I suppose there’s more a fundamental reason why we’re looking at Māori and Pacific. Māori make up only 15% of the population but more than 50% of the prison population, so it’s really skewed.”
Research also shows that those communities are over-represented in the number of cases of innocent people convicted for crimes they haven’t committed, Mr Carruthers says.
The commission’s website notes that the proportion of applications for the Royal prerogative of mercy from Māori and Pacific peoples is between 11 and 16%, despite them making up more than 60% of the prison population combined.
“The reason that they are not coming forward is that it’s an attitude towards the system, either a respect or a wariness of the system.
“What is clear is that in order to encourage Māori and Pasifika to apply, we have to actively go out and let them know that we are available, to explain that the form is not a complicated process, and that there will be assistance available to get the form completed. And you don’t need a lawyer to do that.”
The commissioners bring a mix of skills, experience and backgrounds with Nigel Hampton QC, Manukau-based criminal defence lawyer and youth advocate Kingi Snelgar, Professor of Indigenous Studies Tracey McIntosh, health scientist Dr Virginia Hope, the former National Manager Road Policing Paula Rose, and Tangi Utikere, the Deputy Mayor of Palmerston North making up the board.
The New Zealand body is similar to commissions in Scotland, England and Wales, and Norway, and Mr Carruthers says there have been strong relationships formed with those bodies in the establishment of the New Zealand body.
“In particular, we have close contact with the Scottish commission. I have spoken to both its chief executive and chair. They’ve got a slightly different jurisdiction and approach, but there’s also a lot of overlap.
The most famous case the Scottish CCRC has dealt with is that of the so-called Lockerbie bomber Abdelbaset Ali al-Megrahi, whose 2001 conviction for the 1988 terror attack over southern Scotland was referred to an appeal court several years later.
At its launch on 1 July, the Minister of Justice Andrew Little said the commission would “address concerns – expressed over a number of years – about the independence, timeliness, quality and fairness of investigations into claimed miscarriages of justice”.
The independent body has been needed for many years and will try to correct the mistakes that do occur in the legal system, Mr Carruthers says.
“I thought for a long time that the Royal prerogative system functioned well within its boundaries, but it really didn’t have the outreach that was needed for a proper review and investigation of miscarriages of justices.
“It had limited powers, whereas the commission has wide powers and can make a thorough investigation of cases.
“I think the commission is a necessary part of our judicial system. It’s not that there is anything fundamentally wrong with the judicial system, but mistakes do happen and you need a process to correct those mistakes.”
Mr Carruthers says there is a lot of support for the organisation from the judiciary and an acknowledgement that it can do things that the Court of Appeal can’t.