Gordon Campbell on the Cunliffe speech, and the Mark Lundy decision

The style of David Cunliffe’s speech to the Council of Trade Unions conference yesterday was almost as important as the content. Plainly, Labour now has a leader able to deliver a message consistent with the party’s core values, in a clear and articulate fashion. The contrast with David Shearer was evident. Dutifully though, the Dom-Post served its political masters by calling the speech ”strident” – you know, as in “strident” feminist – while the NZ Herald pressed much the same buttons via its headline “Labour Re-affirms Support For Unions’ Agenda.”

Get the point: it’s the unions agenda, and he’s in their pocket. For a relevant contrast, try imagining the Herald headlining a John Key speech as “National Re-Affirms Support For Plutocrats’ Agenda.” Wouldn’t happen. In fact, responding to the needs of workplaces in strife is fairly familiar territory for Cunliffe. In 2008 as Health Minister, it was his intervention in the bitter stand-off between senior doctors and DHBs that averted a strike threatening to paralyse the nation’s hospitals.

Cunliffe’s speech and subsequent press conference can be heard here.

The content of the speech included gradually phasing in the Living Wage as fiscal conditions allowed, scrapping youth rates, raising the minimum wage immediately to $15 an hour, and extending paid parental leave from 14 to 26 weeks. Cunliffe also promised to scrap National’s proposed employment legislation that absolves employers from bargaining in good faith and completing collective bargaining. A Labour-led government would also get rid of the ‘fire at will’ provisions in current employment law.

The aspirational context of the speech though is likely to prove more important on the campaign trail next year than the policy details. What Cunliffe was outlining was a society where people and their families no longer get treated as disposable commodities. The speech envisioned a society governed by the value of people and the potential of their children, and not simply by the cost of their labour. If Cunliffe can marry this kind of feelgood vision with enough fiscal responsibility to be credible, National will have a fight on its hands next year. Just as National has deflated the economy, it has also deflated expectations of what people can expect from their politicians and government. Yet there is a hunger out there for a more positive approach, and if it seems relatively credible, it is likely to be embraced. To that end, Labour’s prime target should probably be Steven Joyce, not John Key – but Shane Jones, who is marking Joyce on economic development issues, may not be the man for that job.

The more immediate task, as Cunliffe also said, was to get Labour Party members and union delegates functioning again as activists within their own workplaces and neighbourhoods, to promote the message of about change. A million people qualified to vote did not do so at the last election – and if Labour could get just a quarter of them out next time, Cunliffe concluded, Labour will win the next election.

Wrongful convictions

In the wake of the Privy Council decision on Mark Lundy, even Justice Minister Judith Collins has reportedly rejected the need for an independent body empowered to investigate contentious cases. This is all too typical pig-headedness on her part. Arthur Allen Thomas, David Bain, Rex Haig, David Dougherty and now Lundy…almost every major criminal case in New Zealand seems to have left large numbers of people with the feeling that our justice system regularly gets it wrong, and can’t be relied on to either (a) convict the right person or (b) manage the proceedings of justice in a way that instills confidence that the ‘beyond reasonable doubt’ standard has been properly met.

Unlike Collins, Britain has been willing to do something about it. It took several notorious cases where a miscarriage of justice – or, as some have dubbed it, ‘a carriage of misjustice’ – occurred, before it did so. (Namely, the Birmingham Six and Guildford Four cases.) In the mid 1990s, an independent body called the Criminal Cases Review Committee (CCRC) was set up by the British government to investigate applications from the public for the review of possibly wrongful convictions, after the appeal process has been exhausted.

Scotland has a similar system, with slightly different rules and powers. In fact, the Lockerbie bomber Ali al-Megrahi was well advanced with an appeal for wrongful conviction to the Scottish CCRC when the infamous plea bargain to release him back to Libya on compassionate grounds was struck, on condition that he dropped his appeal proceedings. In passing, the political machinations surrounding the Lockerbie bomber case provide strong reasons why the New Zealand method of handling such cases – leave it to the executive, and to the Justice Minister’s discretion – is a bad idea, and a violation of the proper separation of powers.

In 2010, Werewolf did an extended interview with Professor Graham Zellick, who headed the CCRC between 2003 and 2008. The full interview is here. On Zellick’s watch, the CCRC had to grapple with one of its thorniest problems – what happens when expert witnesses are in conflict, and when juries have to guess which expert is the more reliable? The main case in question involved Sally Clark, a solicitor wrongly convicted of murdering her children – largely on the basis of expert prosecution evidence about Sudden Infant Death Syndrome given by Sir Roy Meadow, which was later found to be fallacious.

The dodgy reliability of expert witnesses – and the reliance that juries place on them – is a worldwide problem. Also, carrying out investigations into wrongful convictions is never likely to be a widely popular process. Politicians prefer to be seen to be supporting the victims of crime, rather than the victims of the justice system. Judges, while they may privately concede they are fallible and would welcome any competent body that created more confidence in the justice system, are likely to have misgivings about a process that some judges would regard as second-guessing their work. The mere existence of a permanent body like the CCRC indicates that the Police and the courts routinely get the process of justice badly wrong. Some people would prefer to perpetuate the fiction that this doesn’t happen.

A few years ago, retired judge Sir Thomas Thorp issued a self-funded report that found our provisions for dealings with miscarriage of justice to be inadequate, and he called for New Zealand to create and maintain an independent body dedicated to investigating and helping to correct wrongful convictions. As Graham Zellick explained in this 2009 speech, the mere fact of having a respectable place where conspiracy theorists and the genuinely aggrieved alike can take their evidence for expert assessment provides a social benefit in itself.

If Collins – or more likely, her successors as Justice Minister – were ever to get serious about creating a similar body here to the CCRC, they would have to consider a related problem, the funding for legal aid. We have an adversarial system of justice in this country. When the state (with all of its resources) mounts a prosecution, the accused need and deserve proper representation – and given the government’s attacks on the legal aid system, they are increasingly unlikely to get it. If a more credible Justice Minister than Collins ever wanted to redress miscarriages of justice, they would also need to avert them happening in the first place, by ensuring adequate funding for legal aid.

From my interview with Professor Zellick, here’s a section that deals with the need for an independent body, its relationship to the needs of the victims of crime, and the issue of adequate legal aid.

Campbell: Our current position is that we do have a royal prerogative of mercy, and we do have the executive in the shape of the Minister of Justice occasionally exercising his discretion to launch an investigation and recommend that matters be sent back to the courts for consideration. What’s wrong with that model?

Zellick: Everything. New Zealand is not unusual. That is the common Anglo law Commonwealth situation, where the prerogative rests with the Crown and that translates into whatever the local arrangements are in Canada, Australia, or New Zealand. It was the situation in Britain until the mid 1990s. What’s wrong with it is two fold: first of all, if you analyse it, it does not accord with the proper sphere of executive action. Interference in individual cases within the justice system is no longer, in principle, regarded as being within the proper sphere of executive action. I think that is now generally recognized as a constitutional principle. We’ve sharpened up our ideas on the separation of powers in recent years.

So the risk is that the situation may become politicized and the discretion exercised for political favour or gain?

Or even less sharply, that Ministers have more pressing matters on their agenda, they don’t want to be distracted, they don’t have the time to give it their attention, their officials may realize from time to time that the Minister isn’t very interested – or that he is very interested. It works in very subtle ways, It may not be as crude as to say that there may be direct political manipulation of the process. The political arena is a very sensitive and curious and turbulent one.

And the issue of public confidence in the process then arises. You made the point that there must be no point of finality in the criminal justice system, in that the door must always be left open to correct an injustice – but what comfort can that offer to the victims of crime?

You have to have other mechanisms for dealing with the victims of crime. In some respects of course with terribly serious crimes, you can’t make adequate recompense. It so happens that Britain happens to have the most generous system of compensating the victims of crimes of violence of any country in the world.

What I’m getting at is that finality is important for the victims of crime too, to enable the feeling that justice has been done –

And that their misery is at an end?

Yes. Because only then, in the cliché term, is ‘closure’ possible.

That’s absolutely right. I have to tell you that any review commission has to tread warily, and has to be very sensitive. We certainly don’t go troubling families and victims unless you have to. And if possible – and in most cases this is what we manage to do – we can begin and complete a case without them ever knowing that it been the subject of an application. When we do have to open it up and possibly speak to them or – if we don’t, and make a referral – of course we understand this is not going to be easy for them. And we have in place elaborate protocols to ensure they are the first to know the outcome, that they are advised, and that there are authorities there to support them. The only thing I can say is that this cannot be, and could not be allowed to be, a reason for not reviewing a miscarriage of justice.

If only because closure also depends on the right person being convicted?

It does.

…I wonder what impact you would think that cutbacks in legal aid will have on the CCRC’s work. Logically, wouldn’t cutting back on legal aid be likely to generate more miscarriages of justice?

Yes. It is worrying. As chairman, I never got drawn into the fairly fierce debate about the adequacy of criminal legal aid. I didn’t think it was right to do so. There is no doubt that the adversarial system is critical to the effectiveness of a criminal trial in the common law system. That pre-supposes competent lawyers. If there are serious cutbacks, all sorts of things can happen. Any diminution in the quality of the criminal bar for example, and any curtailment of adequate preparation time and so on, can impact very heavily. Even at the moment, a very significant proportion of applications to the Commission are based on inadequate legal representation.

In New Zealand, we’ve just had legal aid brought back under the control of the same Justice Minister and executive that also holds the discretion to re-open unsafe convictions. In Britain, is legal aid administered by a truly independent body?

There is some kind of agency or body – called the Legal Services Commission – that is responsible for it. Ultimately of course, it is the Ministry of Justice and the Treasury that determine the overall budget, and the Legal Services Commission that figures out how it will work in practice. Its under tremendous strain at the moment. There is, I know, much concern in the legal profession about its future.

…Well, let’s look at those numbers. You get about 1,000 applications for review a year. You send back 40 or 50 a year for the original appellate court, and have about a 70% success rate off convictions quashed. Are those numbers relatively constant, year by year?

They are, curiously enough. They’re very constant. I’m no mathematician, and I don’t understand why it is – yet mathematicians apparently do – but these numbers hardly fluctuate.

That’s interesting. Because it indicates that there is a chronic, fairly predictable level of error in the British justice system. Certainly one high enough to justify the CCRC’s ongoing existence.

I have absolutely no doubt that if there were a similar Commission here, you would find the appropriate level would be very similar to the British experience, and the Scottish experience, in proportion. And for the same peculiar reason, it would remain fairly constant…

…Just to be clear: a CCRC recommendation doesn’t establish innocence, but it assesses whether fresh evidence or a re-evaluation puts the ‘beyond reasonable doubt’ test’ in jeopardy, correct?

Yes. We don’t make any recommendation at all. We simply have to decide whether there is a real possibility the appeal court might quash the conviction – and that is on the basis of whether that conviction is safe.

…Finally, to summarise – why should the CCRC be allowed to second guess the joint work of the judge and the jury in the original trial, given that those parties heard all the evidence in context, and were able to judge in person, the relative reliability of witnesses?

And the answer is: we don’t. And it wouldn’t be right to do so, you’re absolutely correct. That’s why the jurisdiction only comes into play when there is something new, and which by definition, wasn’t before the trial judge and trial jury or indeed, the Court of Appeal. So, it is premised on the notion that something – whether it is legal, or factual – something new has emerged which justifies further consideration. And that further consideration is by the court, and by the appropriate and relevant appeal court. The CCRC system we have fully respects the role of the justice system, and of the judiciary. We don’t in any way replace or oust them. We simply provide a mechanism for laying before them something new that suggests the conviction isn’t safe…