4 Nov 2018

Andrew Little and Chris Penk discuss the Criminal Cases Review Commission Bill

From The House , 7:45 am on 4 November 2018

The Criminal Cases Review Commission Bill has been sent to the Justice Committee for consideration. This is when Parliament asks the public for feedback and suggestions on a law which would create a new permanent independent commission to investigate potential miscarriages of justices.

With the committee due to ask for ideas, it's worth getting a look-see at what is up for comment.

We sat down with Minister of Justice Andrew Little and the National Party spokesperson on courts, Chris Penk so they could discuss the ins and outs of the proposal. 

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Minister of Justice, Andrew Little Photo: VNP / Phil Smith

When the bill was up for its first reading in the house, the minister Andrew Little succinctly described how reviews work now. 

“Currently, a person who believes they've suffered a miscarriage of justice may apply to the governor general for the exercise of the royal prerogative of mercy. By convention, the governor general acts on the formal advice of the minister of justice. Work on the prerogative of mercy applications is undertaken by lawyers in the Ministry of Justice's office of legal counsel, and assistance is sought, where required, from an independent adviser such as Queen's Counsel or a retired judge.”

The new commission would be a bit different. For a start neither the governor general, nor the minister of justice would be intrinsically involved. 

There would be dedicated commissioners who would not all need to be lawyers, and couldn't all be Pākehā. They could also bring in experts as well (say on forensics). They could carry out investigations (rather than rely on an appellant to be able to afford to pay someone to do the footwork). They could require information be supplied to them.

National MP Chris Penk listening to evidence in Select Committee

 Chris Penk is the National Party courts' spokesperson Photo: VNP / Phil Smith

Prisoners could make appeals to them, but they could also initiate inquiries on their own initiative. What's more, they would have the ability to decide to look into categories of cases (rather than just individual cases).

The example Mr Little has used of this broader kind of inquiry is the use of "jailhouse snitches" by prosecutors and the police - a cellmate who claimed a defendant admitted to having committed a crime.

The use of such reported confessions is seen as unreliable and some convictions reliant on them have recently been turned over on appeal.    

If the new commission felt that a conviction was dodgy they would refer it back to the Court of Appeal (rather than making a ruling themselves or having the governor general or minister pardon the appellant). There is a convention that the executive should not overturn decisions by the judiciary.

The royal prerogative of mercy isn’t eliminated by the bill, which recognises that the governor general will continue to have the power to grant a free pardon. But the bill allows the Minister of Justice, as the governor general's adviser, to request the commission's opinion on any matter relevant to such a case.

The Justice Committee will ask for public submissions on this bill in the next few weeks.