A question of innocence: Why a Criminal Cases Review Commission is overdue

by Mike White / 13 November, 2017
Here are some names: Barry George, Sam Hallam, Sally Clark, Frank Johnson, Sean Hodgson. You won’t have heard of them, but their stories deserve to be retold and remembered.

All of them were murderers – or so said the police and courts that sent them to jail. But they weren’t. They were totally innocent people wrongfully convicted. All of them owed their eventual freedom in large part to the Criminal Cases Review Commission in England which reinvestigated their cases and sent them back to the courts, where their convictions were quashed. More than 400 wrongfully convicted people have been exonerated thanks to the CCRC, the world’s first official body to examine miscarriages of justice.

Now, our new government has announced New Zealand will follow suit and create a CCRC to look at potential wrongful convictions here. It’s been a long time coming.

In 2006, retired judge Sir Thomas Thorp estimated there were 20 innocent people in our prisons and called for the establishment of a body similar to the English and Scottish CCRCs. But despite wide support, successive National Party justice ministers rejected the idea. Simon Power said there were other priorities, while Judith Collins, Amy Adams and former Prime Minister John Key all airily waved aside the idea, claiming our justice system was “robust”. Nothing to see here, move along.

Except, there was so much to see, if they’d wanted to. From Arthur Allan Thomas to David Dougherty to Teina Pora, there were numerous examples of our system getting it wrong and convicting innocent people. Add in Rex Haig and David Bain, whose murder convictions were eventually quashed. And add in the controversial cases of Peter Ellis, Scott Watson, David Tamihere and Mark Lundy – whose convictions all remain, despite widespread concerns about the evidence they’re based on. This continual dripping of doubt has eroded public trust in our criminal justice system, to the point where politicians have finally seen the need to act.

North & South has written about this issue for nearly a decade and I’ve researched CCRCs in the UK. The prevailing view there was surprise New Zealand hadn’t established one. So, as the CCRC in England turns 20 this year, here are some lessons from it that we can apply.

Remove it completely from the Ministry of Justice, which currently administers applications for overturning wrongful convictions, and from the bureaucrats who have sought to retain control of this issue.

Give it strong investigative powers, enabling it to interview witnesses and obtain documents from both public and private bodies. Give it wide scope to refer cases to the Court of Appeal where there may have been a miscarriage of justice.

Ensure the courts see our CCRC as a complement rather than an encumbrance or irritation. And fund it adequately – whatever is spent on it will be a fraction of the money available to the police and Crown who seek to sustain convictions. What price justice? What price correctness of verdict, rather than finality of verdict?

Perhaps the best model we can learn from is Scotland’s CCRC, which has proved extremely successful. New Justice Minister Andrew Little visited it in 2013 and its chief executive has already written to Little offering all the help he and his staff can give to New Zealand’s nascent body – an offer that should be taken up.

But as all this takes place, it’s crucial to remember a CCRC is still just picking up the pieces after legal catastrophes. As British journalist Peter Hill, who’s dealt with many wrongful conviction cases, described it to me, the CCRC is a sticking plaster, “but a very worthy one”. What must also be focused on is why wrongful convictions occur in the first place. There are numerous reasons: poor investigations, eyewitness mistakes, faulty science, forced confessions and jury prejudice, among them. Our criminal justice system is good, but remains inherently fallible because it’s operated by humans.

And in that context, a CCRC is another important check and balance that encourages public confidence we’re getting things right. Because here are some other names: Lucy Akatere, McCushla Fuataha, Tania Vini, Aaron Farmer, Jaden Knight, Phillip Johnston.

You probably won’t have heard of them, either – but they’re all innocent people who were jailed in recent years in New Zealand.

We’d be woefully or wilfully naive to think there haven’t been many other cases that remain uncovered. Unless we give our new CCRC the powers it needs, the independence it requires, and the funds it deserves, we will simply leave the door ajar for more such injustices to occur.   

This is published in the December 2017 issue of North & South.

 

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