Criminal cases review commission could strengthen legal system

Whangarei High and District Court. Photo / Michael Cunningham

One of the unheralded commitments in the coalition agreement between Labour and New Zealand First is the undertaking to set up a Criminal Cases Review Commission.

Though it did not feature in campaign debates, the incoming Prime Minister Jacinda Ardern signalled her support for a mechanism to review apparent miscarriages of justice during the Teina Pora case. Pora spent 20 years in jail before his convictions for rape and murder were quashed.

Andrew Little, the new Minister of Justice, has in the past advocated for an independent review body. Further, a year ago New Zealand First issued a press statement saying the party would establish an agency to review appropriate cases.

While the Labour-New Zealand First agreement did not spell out any details beyond the intention to set up a commission, Little has suggested that Britain's Criminal Cases Review Commission could serve as a model.

The UK body was set up after a series of high-profile miscarriages effectively put justice on trial and tested public confidence in the criminal justice system. Features of the wrongful convictions included false confessions, police misconduct, non-disclosure and misleading forensic evidence.

The CCRC is the last opportunity in England, Wales and Northern Ireland for challenging a criminal conviction or sentence after the court process has finished. Someone who has been convicted and sentenced, lost their appeal or been refused permission to go to the court of appeal, can apply to the commission.

The threshold is getting a rehearing is high as the commission has to be satisfied "that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made".

According to its latest annual report, the CCRC sends about one in 30 cases back to the appeal courts. Of all the cases it has referred to the courts since it started work in 997, some 69 per cent have succeeded on appeal. Scotland has a similar authority, which receives about 125 applications and sends about 5 per cent to appeal, where most have been upheld.

Clearly, the existence of the UK commission has ensured that miscarriages of justice have been put right.

In 2005, retired High Court judge Sir Thomas Thorp undertook a review of alleged miscarriages of justice in New Zealand and concluded that up to 20 inmates could be wrongly imprisoned.

Thorp strongly favoured the creation of an independent authority to investigate miscarriages and suggested that, once the agency was up and running and prisoners knew that a review avenue was open to them, then the number of claims could treble.

Doubt was cast on his estimate by the Ministry of Justice which suggested there was no factual basis to conclude that such an agency was needed to generate more claims and argued the existing perogative of mercy process was doing the job. Yet in the case of Pora it took a Privy Council decision to quash his convictions and countless hours of work by a volunteer legal team.

The new commission could strengthen our legal structures. The safety of convictions for serious crimes is paramount in a modern justice system.