Jury out on proposed criminal justice reforms
The Law Commission’s consultation paper Alternative models for prosecuting and trying criminal cases was released in mid-February 2012. Media coverage has been modest, despite the extraordinary reach of some of the proposed changes: to use a medical metaphor, the patient has been diagnosed with a life-threatening illness and radical surgery is the treatment plan.
There would be little disagreement that our criminal justice system has problems and that a degree of overhaul would be beneficial. Some reforms have already taken place including the removal of depositions hearings and the introduction of majority verdicts.
The commission refers to the public’s disenchantment with our criminal processes and its lack of support for the victim, particularly in cases of sexual offending. In fact the genesis of the commission’s recent work on reforms to criminal justice processes largely stems from high profile rape trials in 2007. The commission’s latest brief in this area is to review criminal trial processes including those in sexual offending cases.
The consultation paper makes some welcome recommendations about the establishment of a specialist sexual violence court and the provision for a range of processes and outcomes, including restorative justice, for defendants who admit their sexual offending. Such courts, incorporating therapeutic jurisprudence, are not new to New Zealand; family violence courts having been established a decade ago. They have sought to place an emphasis on holding offenders accountable for their actions and promoting the interests and safety of victims.
More controversially, the report proposes radical general reform for criminal trial processes, notably that our adversarial system be extensively retrofitted with inquisitorial characteristics. This would change the role of judges with their taking on greater investigative and administrative trial responsibility: the selection and order of witnesses, whether expert evidence is required, how evidence is to be given, and whether further investigation is required. At trial, the judge would initiate the questioning of witnesses, with counsel having the opportunity later to ask further questions. In addition, the jury trial as we know it would be jettisoned and replaced either with a judge alone trial or with a judge sitting with two semi-professional lay jurors. These proposals strike at the very heart of the criminal justice system.
As the consultation paper acknowledges, the adversarial process, just like the inquisitorial process, has its flaws. The jury trial, with its random selection of citizens as jurors, proffers the reassurance of impartiality and fairness.
Does the prospect of semi-professional jurors offer the same sense of reassurance? They are to be trained in criminal procedure; but the extent or detail of this training is not provided. The paper alludes to the prejudices, myths and stereotypes that a jury brings to a trial and which influence its decision-making, but will targeted training of short-term lay jurors eradicate prejudices, myths and stereotyping? That said, there is a real danger of a power imbalance between the adjudicators. Verdicts must be unanimous, and the pressure on lay jurors to agree may be immense, exacerbated by a natural tendency to defer to the judge’s view. Dominant personalities may be diluted in a jury of 12; unlikely in a panel of two accompanied by a judge.
The Criminal Bar must be concerned that these proposals threaten our criminal justice processes and the protections they afford.
The big picture in all of this reveals a seismic shift in our legal culture. We have taken on aspects of inquisitorial systems in other areas of our legal system, but the criminal trial and the jury system have remained sacrosanct in recognition of the imbalance of power which results when the state prosecutes an individual. While it is important that the rights of the victim and witnesses are recognised in a criminal case, those rights must be balanced with the rights of the defendant who may be facing serious penalty, including loss of liberty.
Will the ills detailed in the consultation paper be fixed simply by the grafting of civil law processes onto our common law cornerstone?
Surely the first step is acquiring more substantial empirical evidence of the apparent defects, some of which has been done by the commission. Is it not somewhat premature to propose that a foundation of our criminal trial process be abolished in order to achieve reforms that may well be possible within our existing framework? The proposals imply a legal culture shift which may well take a generation of lawyers to embed.
The consultation paper itself is confusing as there is constant differentiation between specific reforms for sexual offence cases and those of general application. While it is no doubt more efficient to run the two together, it does neither section justice. Separate discussion papers would have made consultation and debate so much easier.
Of greater concern is the very short time frame for public submissions which must be in by 27 April 2012, hardly adequate for an informed response to a paper proposing such monumental changes. All members of the legal profession are encouraged to read the paper. It is available online at www.lawcom.govt.nz/alttrials.
*Mary-Rose Russell and Marnie Prasad are senior lecturers at AUT Law School.
This article was published in LawTalk 790, 2 March 2012, page 15.
Last updated on the 19th March 2012