New Zealand to learn from UK experience as it adopts miscarriage watchdog

New Zealand to learn from UK experience as it adopts miscarriage watchdog

Free Teina Pora: NZ to have miscarriage watchdog

The New Zealand government has introduced draft legislation to establish a miscarriage of justice watchdog hoping to avoid some of the problems that have beset the UK model. Last week the justice minister Andrew Little announced plans for their own Criminal Cases Review Commission (CCRC) which had been previously outlined under a coalition agreement between Labour and New Zealand First made last year – and reported on the Justice Gap (here).

The move has been welcomed by investigative journalist Mike White. ‘It’s great, after so many years of lobbying from so many people, and being rebuffed by the governing political party, that we’ve got to this stage,’ he told the Justice Gap. White, a writer for New Zealand current affairs magazine North & South, visited the UK in 2015 on a fellowship to look at the CCRC which was the first state-funded miscarriage watchdog. You can read his account of his UK visit on the Justice Gap here.

Andrew Little called a CCRC ‘a priority’ for his Government. ‘Given the resources the state puts into securing a conviction, I believe there is good reason for it to put adequate resources into correcting mistakes that may have been made,’ he said. Ministers have looked at the CCRC in England and Wales as well as the Scottish and Norwegian models.

Mike White calls the NZ proposals ‘pretty good’ and says that legislators have learnt from some of the problems that have dogged the UK. In particular, New Zealand has not adopted ‘real possibility’ test . Under statute, the Birmingham-based CCRC can only refer cases back to the Appeal courts if there is a ‘real possibility’ that the conviction would be overturned and it is generally limited to reviewing fresh evidence.

That provision has been attacked as imposing ‘a statutory stranglehold’ on the watchdog. In a BBC Panorama investigation earlier the year, a former appeal judge, Sir Anthony Hooper argued that the watchdog had become increasingly cautious because the court had set the bar higher than it had been in living memory.

Mike White explains that the proposed test for referral for the NZ CCRC is that it would be ‘in the interests of justice that a referral to the Court be made’. ‘That’s broad, and arguably good – but the Commissioner must still have regard to “the prospects of the court allowing the appeal” – so that raises the whole issue of the CCRC second-guessing the Court of Appeal,’ he says. ‘But it’s definitely a better framework than the UK CCRC.’

White believes that Andrew Little is ‘well aware of the problems at the UK CCRC’. The justice minister has visited the Birmingham-based commission which was the first of its kind as well as the Scottish CCRC which he visited twice and it is reckoned that he sees the Scottish CCRC as a more appropriate model for New Zealand.

‘I think the UK CCRC stands as a real example of the things we need to avoid – and all I can say is that we’re aware of these things, and Little won’t want to repeat them otherwise the CCRC becomes a political problem his opponents – and there is a very healthy pro-victim, tough on crime lobby in NZ –  will seize on.’
Mike White

In an impact statement by the NZ Ministry of Justice, it noted that whilst the consultation process was ‘positive and favourable’ to the establishment of a CCRC, there were ‘strong differences of opinion’ over ‘complex technical matters such as the test for referral’. It also looked at the performance of the other CCRCs – Norway set up a CCRC in 2004. It reports that the referral rates of the different bodies were 3% for England and Wales compared to Scotland (5.7%) and Norway (13%).

In 2013, the NZ government resisted calls to establish a CCRC arguing high profile cases (Rex Haig, Peter Ellis and David Dougherty) had been referred back to the courts under the Royal prerogative of mercy. It was then argued that about ten such applications were received every year with 153 applications made since 1995. Of those 153 applications, in 15 instances the prerogative of mercy was exercised to refer the applicant’s case back to the courts for further consideration. The then justice minister Judith Collins said that the rate of referral to the courts of around 10% was ‘considerably higher’ than under the UK CCRC model ‘where around 4% of applications they consider are referred back to the courts’.

As reported on the Justice Gap, the UK CCRC’s referral rate has dropped dramatically over the last two years and in 2017 it was just 1.23% (see here).

Last week the UK CCRC announced its new chair, Helen Pitcher OBE. Pitcher is currently chairman of ‘the multi-billion pound international business of Pladis Global (United Biscuits, Godiva, Ülker Bisküvi)’ who previously chaired the QCs selection programme. She will replace Richard Foster CBE  from next month. Pitcher is the fourth chair and returns to the practice of appointing chairs without practical experience of the criminal justice system. Foster was previously chief exec of the Crown Prosecution Service but his predecessors Professor Graham Zellick and Frederick Crawford were an academic lawyer and scientist respectively.