Concerns for wrongful conviction commission after controversial appointments

Saturday, 2 November 2024

The future of the body set up to investigate wrongful convictions is at risk following three new appointments, according to one of the country’s most respected lawyers, who has resigned from the organisation.

Nigel Hampton, KC, served on the Criminal Cases Review Commission (CCRC) since it was established in 2020 to examine potential miscarriages of justice.

Since then, it has received 478 applications from people saying they were wrongfully convicted, has referred three cases back to the courts, and has numerous others still undergoing detailed investigation.

But last week Justice Minister Paul Goldsmith told Hampton, CCRC head Colin Carruthers, KC, and fellow commissioner Virginia Hope their terms wouldn’t be renewed when they expired in December, despite them wishing to continue.

They have been replaced by two less experienced lawyers, with the chief commissioner’s job controversially going to retired judge Denis Clifford.

On Thursday afternoon, Hampton resigned from the commission with immediate effect, saying that allowed him to speak about his serious concerns with the appointments, and the the CCRC’s future.

Hampton said the changes at the commission effectively stripped it of anyone with experience in the commission’s core work of investigating individual miscarriages, which he and Carruthers had extensive involvement in, prior to the CCRC’s formation.

Moreover, it removed the only people who had significant backgrounds in criminal defence work, and added more commissioners who were previously Crown prosecutors, Hampton said.

But of greater concern was the appointment of Clifford, a former High Court and Court of Appeal judge who retired in 2023.

Hampton said the perception it created was that the CCRC was now just another branch of the justice system - the same system which caused the wrongful convictions in the first place - rather than being completely separate, and a crucial independent check on that system.

Appointing a former judge, with close ties to the judges who presided over many cases the commission investigated, and who would consider any cases sent back to them from the commission, threatened to undermine the CCRC’s reputation, Hampton said.

“These applicants will already have a considerable distrust of the judicial system and the judiciary.

“And to them the fact a very recently retired Court of Appeal judge is to be in charge of the CCRC will, I think, both dent their confidence in the CCRC, and affect the view of its independence.”

The CCRC’s separation from the centres of power, including politicians and senior judges, was a paramount concern during its creation, and was one reason it was located in Hamilton, away from Parliament and the upper courts in Wellington.

And not having former judges involved with the CCRC was a contentious issue when the body was being formed.

During select committee consideration of the bill establishing the commission several submitters, including the Law Society and the New Zealand Bar Association, raised strong concerns about appointing ex-judges.

The Law Society warned the CCRC’s independence from the judicial system “would be undermined if a member or former member of the system were to be appointed a commissioner”.

In a 2017 briefing to then Minister of Justice Andrew Little, the Ministry of Justice clearly noted in its first paragraph: “The success of the CCRC will depend primarily on the perception of its independence.”

And even at that early stage, it forewarned of the dangers of appointing retired judges.

“While having a judge on the CCRC need not be precluded per se, it could risk concerns around independence, and lead to perceived conflicts of interest in relation to cases they have presided over.”

However, in 2019, the ministry eventually recommended former judges needn’t be explicitly excluded from the commission, and those decisions should be left to the minister’s discretion.

But similar bodies overseas, including the UK and Scottish CCRCs, have largely avoided any role for former judges, because of the negative perceptions it could lead to.

Hampton said there were other lawyers with real criminal trial or appeal experience, who could have filled the gap in knowledge left by Carruthers and himself.

“So I find it strange and disappointing that the commission is going to be left somewhat exposed from that lack of expertise, and the essential work of the CCRC will be undermined as a consequence.”

He pointed to one application which was on track to be declined, until he and Carruthers identified something that hadn’t been fully investigated, and the application was reconsidered.

Hampton said his greatest fear was that the commission would now miss a legitimate application, such as occurred in the UK where Andrew Malkinson and Victor Nealon were both turned down by the CCRC twice, with both serving 17 years for rapes they didn’t commit.

Experience with actual miscarriage of justice cases was “an essential attribute” needed by at least one commissioner, but the CCRC would now have nobody with that background, Hampton said.

His disappointment was compounded by the fact it took so long, and so much effort by so many people to establish a CCRC in New Zealand.

And he questioned whether the new appointments indicated the CCRC’s significance and the importance of its work wasn’t well enough understood, or given sufficient regard, by those in political circles, including those making the appointments.

Justice campaigner Mike Kalaugher, who fought for a CCRC and has helped several people make applications to it, said putting an ex-judge at the top “sends a terrible message”.

He said people in prison who had been wrongfully convicted would now see the CCRC as just another court, with just another judge in charge. “Same old same old. So why should you expect a different result?”

Kalaugher said the latest appointments further eroded his confidence in the CCRC to achieve what it was set up to do.

The commissioners lacked diversity of skills and background, with nobody having forensic knowledge any more, and nobody from journalism or justice campaigning backgrounds, as other CCRCs had.

“It’s like they’re searching through the ranks of people they are familiar with.”

In July, Justice Minister Paul Goldsmith had signalled there would be changes at the CCRC. National had opposed its establishment, but one of its coalition partners, New Zealand First, was a champion for the organisation.

Goldsmith refused to answer questions about the CCRC being stripped of anyone with miscarriage of justice or significant criminal defence experience; the potential negative perceptions of appointing a recently retired judge as chief commissioner; and concerns about political interference in an independent body.

Instead, he issued a brief statement saying: “Like all appointments, the Government considers a variety of options. Ultimately, these are for Cabinet to decide. They have my full confidence.”

Labour’s justice spokesperson, Duncan Webb, said Denis Clifford had legitimate legal credentials, and he had nothing against him personally.

“The danger is, not only is a former judge closely connected to the very community they are being asked to review, but also there’s the perception of that. And that’s just as important in terms of our trust in what is the last line of defence for miscarriages of justice.”

Webb said the pool of senior judges in New Zealand was small, and it would be important to work out where the line would be drawn with regard to Clifford and any potential conflicts of interest.

“How can people be absolutely confident that none of these things will play either a conscious - which is highly unlikely - or an unconscious part in any decision-making?”

Webb said the person heading the CCRC needed to be “someone who’s fierce, and fiercely independent, a modern-day Atticus Finch, someone who despite all social and other pressures, will do what they believe is right”.

He said it was “a real shame” Nigel Hampton would no longer be part of the CCRC.

“There are many great lawyers in the country, but he’s probably got the highest reputation for taking on challenging cases that call out real injustice - and that’s exactly the value set we need in the Criminal Cases Review Commission.”

Webb stressed the CCRC was a crucial check on abuse of State power.

“The National Party has never been keen on it. This doesn’t fit their tough-on-crime policy, and they hate having wrongful convictions, and handing out compensation to people who’ve been in prison.

“So there’s a risk that, even if they don’t smother it entirely, that they don’t give it the recruitment that perhaps would see it be as fierce a critic of what the State is doing.”

Outgoing chief commissioner Colin Carruthers, KC, declined to comment.

Clifford, and the two other new commissioners, Auckland lawyers Suzanne Robertson, KC, and Emma Finlayson-Davis, were approached for comment but did not respond.

Instead, the CCRC’s chief executive, Parekawhia McLean, issued a statement - despite the new appointees not having any role with the organisation until December 2.

McLean said it was “not appropriate for the incoming members to make any comments until such time as they have been fully briefed” on the CCRC’s work.

The Ministry of Justice, which conducted the initial appointment process prior to Goldsmith selecting the commissioners, said there were two applicants for the chief commissioner’s role, and 16 for the positions of commissioner.

It later clarified another candidate for the chief commissioner’s position was shoulder-tapped by the ministry and also considered for the role.

Colin Carruthers had also indicated he wished to be reappointed.

The remaining CCRC commissioners are former police officer Paula Rose; Auckland University professor of indigenous studies Tracey McIntosh; Auckland University associate professor and social scientist Tamasailau Suaalii-Sauni; and Auckland lawyer Kingi Snelgar.