Nigel Hampton: Commission key to keep the innocent from rotting

Short of having a well-heeled campaigning guardian angel (a la Joe Karam), or tissue samples taken and retained (not always a given) which might be tested by new DNA methods and which then show innocence, or of finding a rich and powerful law school with professors and students willing to run an Innocence Project (as with some parts of the US), what prospect do the estimated 20 or so New Zealand "victims" of miscarriages of justice, at any one time wrongfully languishing in our prisons, have of proving their miscarriages and being set free?

Virtually none, regrettably.

The majority of these persons wrongfully imprisoned will come from the most disadvantaged sections of our nation. They will not be white persons from middle-class families, who might well attract supporters and campaigners.

David Bain was fortunate. The other 19 or so wrongfully inside will not be so fortunate. The figure of 20 comes from work done by a retired High Court judge, Sir Thomas Thorp, who published a paper on miscarriages of justice in New Zealand some three years ago.

A long-serving judge and before that a Crown Solicitor, he had carried out studies after having been officially commissioned to look into some claims of miscarriages.

Sir Thomas reached his estimate of 20 wrongfully imprisoned by looking in depth at figures that had emerged from England and Scotland - over a 10 year period - since the setting up in those countries of bodies called Criminal Cases Review Commissions. Over that time a consistent error/miscarriage rate was found and, given the similarities of our systems with theirs, the British figures were extrapolated by Sir Thomas to reach his calculation of 20 persons wrongly in jail at any one time.

Following the disasters that emerged in England as to the way wrongful convictions had been obtained and upheld on appeal in certain Northern Ireland cases, a review commission was started up in England, Wales and Northern Ireland in 1997, to review convictions claimed to have been wrongly obtained.

The commission was given wide-ranging powers to make the fullest of factual inquiries because it was believed that the British criminal appellate system was too constrained and narrow and therefore not an appropriate instrument, or indeed available instrument, to use to try to perceive let alone rectify miscarriages.

In the 10 years or so since its inception the commission has overturned, or taken steps leading to the overturning of, more than 200 wrongful convictions. And with results being achieved in a relatively short time frame. No more extended marathons like the Bain saga has been here - a decade and a half ...

Scotland followed suit in 1999. Again, as with the the first commission the Scottish commission has been a success. And a happy byproduct of the success of both has been the removal of some of the heat from controversial matters and the removal of pressures from judges and politicians.

The Scottish review commission experience has additional value for New Zealand, I suggest. With an approximately similar population to ours and with similar court systems and crime and punishment rates to ours, Scotland's commission reviewing about 120 cases a year costs about $3.5 million annually.

Relatively cheap, particularly when put alongside the cumulative Bain costs of trials and appeals.

The similarities between systems include this. Our criminal court appellate structure, as with the Britain's and Scotland's, is not designed to be able to identify and rectify these miscarriages.

The appeal courts are quite constrained, by legislation, as to how they can look at and deal with contested criminal convictions. The appeal courts scrutinise the trial which has taken place to see, first, if the trial proceeded fairly and in accordance with due process and, secondly, to check to see if the trial judge had made any errors of law in trial rulings (eg as to admissibility of evidence) or in the summing-up to the jury.

The appellate review process, if it can be called a review, is quite constrained and narrow. There is no wide-ranging inquiry as to whether a miscarriage may have occurred.

In the now infamous Peter Ellis case, when the appellant tried to widen the argument in the Court of Appeal to look at how and why the complaints had originated and then how they had been recorded, and as to how the prosecution had been allowed to narrow its case to just the complaints and complainants that the Crown thought most credible, the court rejected that attempt by saying that it was not a commission of inquiry with the wide powers of such a commission.

The court said that only the Government could create such a commission to scrutinise the matters which Ellis was raising. Well, successive Governments, of various stripes, have ignored repeated pleas for such a one-off commission.

Which takes me back to Bain and the placed-to-one-side Thorp proposal of a permanent commission to properly, quickly, and cheaply (the latter two, comparative expressions) review and resolve, one way or the other, claimed miscarriages of justice.

In my view there is a need for us to establish a permanent body, a New Zealand Criminal Cases Review Commission which has the duty and the full powers to investigate thoroughly such claimed miscarriages.

I add this thought. My own experience in the criminal lists over more than four decades lead me to the view that Sir Thomas Thorp's estimate of 20 persons wrongly locked up, is a conservative figure.

Thus my immediate response to media when asked for some "wrap-up" comments on the Bain trial after the recent verdict - that that case had underlined the need to revisit, and soon, the Thorp review commission idea.

* Nigel Hampton is a Queen's Counsel.