Friday, August 27, 2010

Miscarriages of Justice and what to do about them

There is no such thing as a perfect justice system, where the guilty are always convicted and the innocent acquitted. In fact the most heinous mass murderers, the tyrants and warmongers that decide the fate of nations rarely even stand trial. Justice, like truth, is a journey rather than a destination.

One traveller on that road is Professor Graham Zellick, who has been in Aotearoa recently to talk about the UK Criminal Cases Review Commission. This was set up in 1997, following some high profile cases in the UK, to review possible miscarriages of justice. His talk was both informative and compelling, partly because New Zealand's justice system is a part of the 'common law family' that stems from Britain and is subject to many of the same problems.

That problems exist in the New Zealand appellate system is not news. Public disquiet remains about a number of high profile convictions. Other verdicts, such as Arthur Allan Thomas, David Doherty, Alec Waugh and David Bain have been overturned after lengthy terms of imprisonment. It was concern about such cases that led retired High Court Judge Thomas Thorpe to conduct a self funded investigation into miscarriages of justice and recommend that New Zealand establish a body like the UK CCRC.

Appeal courts find it very difficult to correct certain kinds of problems in the court system. According to Zellick, this is partly due to an excessive confidence the system places on jury verdicts. Appeal courts are happy to look at questions of law, procedural issues and the like. They are very reluctant to look at questions of fact and say that the jury simply got it wrong.

One of the ways that juries can be misled is through expert witnesses. Zellick spoke about the case of Sally Clark in the UK who was imprisoned for murdering her cot-death baby, mostly on the basis of now-discredited theories of a Dr Meadows. As he spoke I was reminded of the FBI evidence that was so crucial in convicting John Barlow, evidence that has now been shown to be wrong.

Although it is not a point he made, it also seems likely that juries give unwarranted attention to certain kinds of evidence. Contrary to common sense, two of the biggest causes of wrongful conviction (as evidenced by DNA based exonerations) are confessions and eye witness identification evidence that most ordinary people would expect to be reliable.

The UK CCRC gets about 1000 applications a year, refers 30 - 40 cases back to the courts and about 70 percent of those result in a conviction being quashed. This is all at a cost of around £8 million. The Scottish CCRC, serving a population of around 5 million people, costs about £1 million. When you consider that it costs about $90 000 to keep one person in prison for a year then a CCRC in Aotearoa might well save us money, if effective justice is not a strong enough argument for the Government.

Currently in this country once appeal rights have been exhausted all that remains is an appeal to the Crown for the prerogative of mercy. According to Zellick, this is a bit muddled in New Zealand. The prerogative of mercy is originally a power that the Crown has to overturn a conviction or to commute a sentence. Under the Crime Act this has been changed into an ability for the Governor-General in Council to refer a conviction back to the courts. In practise it is a decision of the Cabinet, which is constitutionally undesirable. The process has been described as ad hoc and inadequate by at least one QC.

Certainly the prerogative of mercy has not provided any benefit for most of the cases where it seems likely or possible that the conviction is unsafe. Note that this does not necessarily mean that the person can be proven innocent, but rather that their conviction cannot be sustained by the evidence. Our system requires proof "beyond reasonable doubt" in criminal cases and it is questionable in number of cases whether this threshold was ever reached. Peter Ellis, John Barlow and David Tamihere are all cases that in my opinion should be looked at by an independent body.

Even more compelling is the case of Scott Watson, who was convicted for the murder of Olivia Hope and Ben Smart in the Marlborough Sounds in 1999. Having read a reasonable amount of different material about the case, I am convinced that not only is there a miscarriage of justice but that Scott Watson is innocent. Unfortunately he, and the others, seem unlikely to get justice until New Zealand has an independent, transparent body to look at alleged miscarriages of justice and do something about it when it finds then.

Thursday, August 12, 2010

Suicidal tendencies

I’ve got my own theories about the high rate of suicide in New Zealand (and most of the western world). To my mind we need to address the alienation, the atomisation and the anomie of modern life if we want to get to the roots of the problem. In addition I find it hard to believe that at some level we don’t all feel the ecocide rending the planet. We are part of the fabric of life, despite the illusion of separation, and cannot be mentally healthy while we continue to wreak destruction on ourselves.

Such thinking was not, I suspect, behind the Chief Coroner Judge Neil MacLean’s call for more media reporting of suicide. He pointed out that while the number of people dying from suicide is 50 percent higher than the road toll, suicide receives comparatively little attention. In this he is correct. The money spent on reducing the road toll is considerable, with public media campaigns and strong enforcement around drink driving and speeding. Suicide prevention is small fry in comparison.

It is hard to understand why this is so. Suicide is not a new problem. Perhaps there is an assumption that it is primarily a youth problem. I don’t mean to be indelicate, but young people only draw significant political attention and ministry resources when we can blame them for shit. There has been far more media time, mental energy and government money spent on boy racers than ever was directed at suicide prevention.

An indication of our collective lack of interest is the fact that an international expert on suicide prevention, Annette Beautrais, left the country just a year and a half ago because of what a colleague described as a lack of support and recognition from the NZ Ministry of Health. Even more telling, the Associate Minister of Health with responsibility for the area, Peter Dunne, didn’t seem to be aware of this.

The media, of course, will blame the politicians for the lack of reporting. The Coroners Act does restrict reporting of suicide to some degree, but this is a bit of a cop-out. The Coroners Act says that if a coroner has found a death to be self-inflicted, no one can make public anything other than the name, address, and occupation of the person concerned and the fact that the coroner has found the death to be self-inflicted. Unless you have the coroner’s permission. They can only give that permission if it is unlikely to be detrimental to public safety.

Given the contested evidence about the effect of media reporting, this seems a good thing. It is a cautious approach that leaves the door open if the evidence stacks up against the notion of ‘copy cat’ suicides. In addition it is the Chief Justice who has responsibility to draw up guidelines for coroners about what may or may not be detrimental.

Strangely you’d never guess this from Judge MacLeans comments. I agree that more reporting is probably a good idea, but it is in his hands to allow this to happen.

Secondly, the restrictions are only around the particulars of specific deaths. There is absolutely nothing to stop the media covering the broader issue of suicide such as trends, research and causes. In particular more coverage of how to spot the warning signs and what to do about it if you do would be helpful. In fact the extensive coverage of suicide in The Press this month is a good example of just what can be done under the current law.

There are many laws that do need to change in this country but this is probably not one of them. Let’s see what we can do with what we have before we start demanding another act of parliament.

Friday, August 6, 2010

In need of a radical localism

Apparently local body elections are coming up soon, although most people would never know. Some of the more imaginative candidates in Hamilton are getting up to all kinds of interesting stuff, but chances are the turn-out this year will be as low as every other local election. Which suits those in power quite nicely.

I can understand the lack of interest. The thought of going to a council meeting kind of makes me cringe inside, even though I know that local councils have more influence on the day to day lives of ordinary people than Parliament does. A lot of my constituency work as an MP was either doing pycho-therapy or explaining to people why I couldn't do much to help them because it was a COUNCIL ISSUE. Even then, I'm not sure it ever inspired them to vote for their city councillors.

More recently there has been another reason to be disinterested in voting in local elections. The sacking of Environment Canterbury and its replacement by a government picked board was a complete travesty of democracy, removing democratic representation so farmers could seize water resources more easily. The fact that the people of Canterbury won't even get to vote for their regional council this year just adds to the injury. The reorganisation of Auckland's goverance to allow the city to be run by business people for business people is a similar usurption of democracy.

The problem stems from our colonial history. In Europe power tends to be more localised because nation states grew out of the federation of independent cities and provinces. Local power often has constitutional protection. In New Zealand the nation states was enforced from the outside and it was highly centralised from its inception so as to facilitate our exploitation. Simply put, we were designed as a farm for England rather than as a democracy. The source of political power is not seen to be the people, but rather the Crown. While we no longer farm for Britain alone, we are still a commodity producer. Efficient production remains a more powerful political imperative than the right of local people to have a say over the things that are important to them.

Some of the most interesting social developments in Europe have resulted from the exercise of local power. The Dutch quasi legalisation of cannabis, for example, began with a decision by a local prosecutor not to prosecute for cannabis. The resulting policy has been so successful at reducing drug related harm than it has been adopted in most of Holland and increasingly in other parts of Europe too. In New Zealand such a development would be impossible. Here we have centrally controlled pilot schemes, with all the political arse-covering that this involves. If successful, they usually have the plug pulled on them in short order so as not to threaten any entrenched interests.

Because power is seen as flowing down from Her Majesty, rather than originating in the people and flowing up to the Parliament, local bodies provide no constitutional constraint on the Government. As we have seen, the Government can sack councils at will. Neither is there any overarching constitutional constrain on the Government. The Government can pass any laws it likes, even if they breach basic human rights, so long as it has the requisite majority. Our system is very much a product of that brief moment in time when the Nation State was all powerful in Europe – just forged out of autonomous provinces and city states but not yet constrained by regional or global systems of goverance. We are frozen in time.

The question is, which do we value more highly - efficiency or democracy? It has become heretical to question any demand of the market, as if the desires of human beings are legitimate only insofar as they facilitate the economy. We have been enslaved by our own invention. The answer, in my opinion, is a radical localism and it begins with a participatory local politics.

(from my Waikato Times column 6 August 2010)