Catriona MacLennan: Why it's the legal system not the justice system

The suggestion that up to a score of New Zealand inmates might be wrongly imprisoned comes as little surprise to those familiar with the workings of the legal system.

The cornerstone of New Zealand's court processes is the adversarial system.

This is a procedure which essentially involves a contest between prosecution and defence as to who can best conform to a precise set of rules.

It is not designed to establish the truth - surely a fundamental flaw.

The well-understood outcome of this process is that a small number of innocent people will be found guilty, and a larger number of guilty people will be acquitted.

We should be concerned not only for the innocent who are wrongly imprisoned, but also about the impact on the community of acquitting the guilty.

This leaves victims doubly traumatised. They are devastated by the initial crime and suffer a further crisis of confidence in the legal system when they find that it gives them no justice.

They are also likely to be left fearful about their future safety, as they know that they have been victims of crime once and that the lesson for the offender is that he or she can flout the law with impunity.

Retired High Court judge Sir Thomas Thorp has written a report, Miscarriages of Justice, which estimates that as many as 20 people could be wrongly imprisoned in this country, and proposes setting up an independent authority to identify miscarriages of justice. But perhaps it is time to take a wider look at the shortcomings in our legal system.

We have a process which, though it may strive for equality, in practice punishes the poor more harshly than the rich.

Our court processes are bruising for victims, and punishments do little to prevent re-offending.

One result of the flaws in the adversarial process is that our courts are slowly moving to use of the inquisitorial system.

This is happening gradually, without overall debate or a decision that it is time to abandon the adversarial system.

The inquisitorial system is widely used in Europe, where judges actively inquire into the facts with the aim of establishing the truth.

Inquisitorial processes are already used in the Employment Relations Authority, the Disputes Tribunal and to some extent in the Family Court.

Widespread frustration among judges and others involved in court proceedings about the futility of employing the adversarial system to resolve domestic violence cases has also led to the setting up of pilot, specialist Family Violence Courts.

These work within the criminal court, but are designed to provide a speedier and more effective means of dealing with violence in the family.

At the Manukau District Court, all domestic violence criminal charges are now referred to the specialist court, with the aim of finalising matters within two or three weeks.

That can be contrasted with the months or years it takes for the adversarial process to produce an outcome when cases go to full defended hearings.

Debate is also taking place about whether procedures for trying sex offences can be improved.

Rape victims are well aware of the horror of the court process for the victim, and some decide they simply cannot go through a trial.

The law is such that a defence of consent is commonly argued, and conviction rates are extremely low in such cases.

The public issues committee of the Auckland District Law Society in a June 2002 report called for a review of the procedures for the trial of those accused of rape and other sexual offences.

The document said that, despite many reforms of rape laws in recent years, there was still a substantial degree of under-reporting of sexual crimes.

This resulted in perpetrators believing they could act with impunity, while victims felt powerless. Ultimately, that undermined the criminal justice system itself.

The committee urged the Government to establish a taskforce to consider changes to sexual offence trial processes to ensure that victims received access to justice.

Proposals included rape victims being represented by their own lawyers to ensure their input at every stage of the process, use of the inquisitorial process and removal of the right to silence.

A forum held in Auckland in November 2003 further debated these issues, and in particular made reference to the specialist courts which have been established in South Africa to deal with sexual offences.

Research has found high satisfaction with the system, and the conviction rate for sexual offences in South Africa is more than 80 per cent, compared with 44 per cent in New Zealand.

All the moves away from the adversarial system are a de facto acknowledgment of its flaws.

However, it is unsatisfactory that there should simply be a piecemeal abandonment of the process without any coherent debate.

In the meantime, I continue always to describe our court processes as our "legal" system, and never as our "justice" system.

* Catriona MacLennan is a South Auckland barrister.