The top legal body recommends one matter be clarified by the select committee
The proposed Criminal Cases Review Commission will benefit New Zealand in various ways, according to the New Zealand Law Society, which has given its support to establishing the commission.
In its submission on the Criminal Cases Review Commission Bill, the Law Society said that establishing the commission will enhance public confidence in the criminal justice system, since confidence is increased by independence and transparency of decision-making and effective communication about the results of reviews.
The commission will also mean that a body with new powers to improve the scope and outcomes of reviews of possible miscarriages of justice is established. These powers include investigative and “own motion” powers.
The Law Society also said the commission will enable better consideration of potential miscarriages of justice involving vulnerable populations.
“There is evidence that the current system is failing to deal with potential miscarriages involving minority groups who are unaware of the existence of the current system and are ill equipped to engage with it,” it said.
The bill is also informed by the experiences of other comparable jurisdictions, which have seen the positive effects of such a commission.
The Law Society said that its sole issue with the bill concerns the proposed membership of the commission. The bill says that at least a third of the commission’s members must be legally qualified, while at least two-thirds must have other relevant experience, knowledge, or expertise, such as working in the criminal justice system.
While the Law Society supports the requirements, it said that the bill in its current form qualifies current or retired judicial officials for appointment to the commission. It said that current or retired members of the judiciary should not be eligible because of several reasons.
“A fundamental tenet of the bill is the commission’s independence from the judicial system. That policy would be undermined if a member or former member of that system were to be appointed as commissioner,” the Law Society wrote.
“This argument applies more acutely to current members of the judiciary. In particular, the perception risk is all the more acute given the inclusion in the bill (supported by the Law Society) of clause 12 giving the commission ‘own motion’ powers to initiate inquiries into practices, policies or procedures,” it said. “That power may well focus on matters of judicial practice or court procedures relating to miscarriages of justice.
“Other members might well tend to defer to a judge’s mana and experience in the criminal justice system when commissioners are discussing whether to refer a conviction or sentence to the relevant appeal court, especially given that judges have significant experience in relation to sentencing matters,” it said.
The top legal body acknowledged that in a small jurisdiction, it may be challenging enough to resource a commission without excluding a significant pool of qualified people.
The Law Society said that it supports the enactment of the bill. While it does not propose any amendments, it suggests that the select committee consider whether the bill should expressly state whether current and possibly also former members of the judiciary are eligible for appointment as commissioners.