A bill establishing an independent body to review potential miscarriages of justice, and refer suitable cases to appeal courts, will enhance transparency and public confidence in the criminal justice system, the New Zealand Law Society says.  

The Law Society has presented its submission on the Criminal Cases Review Commission Bill to Parliament’s Justice select committee. It says the bill will bring New Zealand into line with comparable jurisdictions that have independent bodies assessing potential miscarriages of justice.

“The current mechanism in New Zealand for referring potential miscarriages of justice to the appeal courts – the exercise of the Royal prerogative of mercy – has been criticised as slow, not sufficiently independent, and inaccessible to minority groups. Establishing a new body will improve public confidence in the independence and transparency of reviews of suspected miscarriages of justice,” Law Society spokesperson Professor Warren Brookbanks told the select committee.

The new Criminal Cases Review Commission will also have investigative and ‘own motion’ powers that aren’t available under the current system, which will significantly improve the scope and outcome of reviews, Professor Brookbanks said.

The Law Society raised one issue for the select committee to consider, in relation to whether current or retired judges should be eligible for appointment to the Commission. The bill currently allows judges to be appointed, although there may be concerns that this undermines the Commission’s independence from the judicial system.

Professor Brookbanks highlighted the concern that members of the Commission who do not have judicial experience may defer to a judge’s mana and experience in the criminal justice system when considering whether to refer a conviction or sentence to an appeal court.  

Even if there is no actual deference, there is a risk that public perceptions of judicial influence may undermine the Commission’s credibility, resulting in limited uptake of its services. This concern is particularly acute in respect of the Commission’s ‘own motion’ powers to initiate investigations into the criminal justice system, which may focus on matters of judicial practice or court procedures relating to miscarriages of justice.

However, the Law Society also acknowledged the counterargument that in a small jurisdiction such as New Zealand, excluding a significant pool of qualified people such as judges may increase the challenges of resourcing the Commission.