Serious concerns mount over appointments to wrongful conviction body

Saturday, 16 November 2024

When a new body was established four years ago to investigate wrongful convictions in New Zealand, there were high hopes it would rectify the worst mistakes of our justice system. Mike White speaks with three people who helped set up the organisation, who now have serious concerns about its current state, and its future.

There was a pōwhiri and powerful speeches.

There were politicians and dignitaries and campaigners.

There were nibbles and polite chatter as the invited clutched cups of tea and looked out at midwinter Hamilton’s bare trees.

But above all, when the Criminal Cases Review Commission (CCRC) was launched in 2020, there was relief that, finally, New Zealand had a dedicated body that would investigate and rectify wrongful convictions.

No more pretending they didn’t happen, or New Zealand’s police and courts were infallible.

No more turning a blind eye to those who’d spent years, decades, in prison for crimes they didn’t commit.

Here, after years of lobbying, was an independent body that would uncover injustice, and give worthy cases another day in court.

The demand for a CCRC was immediately apparent, as it was deluged with hundreds of applications from those claiming they’d been wrongfully convicted.

But now, four years on, the body is being swamped by concerns about its make-up and whether its commissioners, who decide what cases are deemed legitimate, have the skills required or can be impartial.

Two weeks ago, Justice Minister Paul Goldsmith announced recently retired Court of Appeal judge Denis Clifford would take over as the head of the CCRC, replacing barrister Colin Carruthers, KC who had been its chief commissioner since the organisation’s inception, despite Carruthers wanting to continue.

In addition, Goldsmith declined to reappoint one of the country’s most respected defence lawyers, Nigel Hampton, KC, and scientist Virginia Hope as commissioners.

Instead, he replaced them with two Auckland lawyers: Suzanne Robertson, KC, who has specialised in competition law, relationship property and disputes concerning land tenure, contract and trusts; and Emma Finlayson-Davis who was a Crown prosecutor for 10 years before spending 11 months as a defence lawyer, and working at the Abuse in Care and Dilworth School inquiries.

It has led to strong criticisms from within the justice sector about having an ex-judge on the CCRC, given that any applicant who applies to the body claiming they’ve been wrongfully convicted must already have had all their appeals rejected by judges of the High Court or Court of Appeal, where Clifford served.

In addition, widespread concerns have been raised about the lack of any commissioners with significant criminal defence, or miscarriage of justice experience, now Hampton and Carruthers are gone.

Furthermore, the fact Finlayson-Davis’ husband is a partner at Meredith Connell, the law firm that prosecutes criminal cases in Auckland ‒ including numerous people who have applied to the CCRC saying they were wrongfully convicted ‒ has been flagged as a potential conflict of interest issue.

Goldsmith’s appointments led to Hampton immediately resigning from the body, despite his term not finishing until December.

He said the appointment of a former judge to the commission undermined its independence, and would dent the confidence of those considering applying to have their cases reviewed.

Now, three people who were central to the CCRC’s creation have spoken out about what’s gone on, and their fears for the organisation’s future.

If anyone is responsible for the existence of the CCRC, it’s former justice minister Andrew Little.

It was Labour, with New Zealand First’s support, which answered a call that had been heard for 20 years for the country to have a body that would investigate potential wrongful convictions, and if they thought it was “in the interests of justice”, the cases would be sent back to the courts for another appeal.

Little drove the process, accepting terrible mistakes sometimes occurred in our courts, and even with the right to appeals innocent people ended up in jail, and needed the “safety valve” the CCRC offered.

And Little was adamant the CCRC had to be independent from the justice system, because its job was to review the mistakes of that system.

To that end, Little located it in Hamilton, so staff weren’t mixing with the justice establishment including police and senior judges.

Moreover, he took note of similar bodies in the UK and Scotland, which had been at pains not to appoint those at the heart of the justice system, like judges, to their CCRCs, given the perceived perceptions of bias it could create.

“I was always very clear the Government should be very careful about appointing a judge to a body which is critiquing the work of our courts, particularly our senior courts, when it comes to miscarriages of justice.”

His successor’s move to place an ex-judge at the CCRC’s head at the first opportunity, raised concerns, Little says.

“With all due respect to [Denis Clifford], he’s not somebody who stands out to me as somebody who has taken a critical view, in relevant cases, on prosecution.

“If people who consider themselves to be victims of a miscarriage of justice find themselves making an application to a body that has another judge on it, even a senior judge, then they will be forgiven for thinking they’re just going through another part of the justice system that, generally speaking, they will have already lost confidence in.

“So it does create a real risk that people don’t see that [the CCRC] is capable of delivering them the justice they’ve been denied.”

Denis Clifford was approached for comment but did not respond.

Little says commissioners need to have “an established track record of challenging the establishment, the prosecution system, the police, and the courts for the decisions they make.

“And certainly, losing people of the calibre of Nigel Hampton and Colin Carruthers, I think, is worrying.”

Little says when he viewed the backgrounds of those recently appointed in their place who had judicial and prosecution backgrounds, “it doesn’t seem fully consistent with what was intended, which was that spirit of independence from the justice system”.

Little, now back practising as a lawyer, stresses the need for a CCRC is no less today than it ever was.

“When we do see miscarriages of justice, we see some pretty spectacular miscarriages of justice, and it does need a body that can stand outside the judiciary and the justice system, with the benefit of considered and sober investigations and insights, and say, ‘Actually, this was wrong’, and send it back for convictions to be reviewed.”

Investigator Tim McKinnel, who was on the advisory group that established the CCRC and later worked for the organisation, believes the two most important attributes for commissioners are relevant experience and independence ‒ both actual and perceived.

McKinnel, who helped expose the wrongful convictions of Teina Pora, Alan Hall, and Gail Maney, said understanding where errors occurred and how the wrong people were sent to jail was incredibly specialised work.

“For anybody who’s appointed to the commission, I’d desperately want to see substantial, credible, criminal justice experience, particularly with either appellate work, or miscarriages of justice work.”

But McKinnel notes there now appeared to be nobody on the commission with a prior background investigating wrongful conviction cases.

The impartial, unaligned nature of the CCRC was something McKinnel was asked about by those he worked with who claimed to have suffered a miscarriage of justice.

“The thing potential applicants value most highly is absolute independence.

“It’s generally vulnerable people who are wrongfully convicted, sometimes more than once in the courts.

“So they have real distrust of the system, and independence is what they’re desperately looking for.”

McKinnel says the failure of the English CCRC to put the right people into crucial roles was an example of how confidence in such a body could be damaged and diminished.

“And that’s something that may not happen quickly, but it can be death by 1000 cuts, as we’re seeing in the UK.”

McKinnel says it is “interesting to note the very hands-on role that the Ministry of Justice appears to be playing in the running of the CCRC”.

The ministry used to oversee applications from those claiming to have been wrongfully convicted under the previous Royal Prerogative of Mercy process.

When a CCRC was mooted the ministry argued against the need for it, insisting it was best placed to assess such claims, and wishing to maintain the status quo.

But one of the aims of Little and those establishing the CCRC was to take this role away from the ministry, because it also supported the operation of the justice system and courts which caused wrongful convictions in the first place.

However, it was the ministry that oversaw the recent hiring of the three new commissioners, and put options before the justice minister regarding who should be appointed.

In one case, it even proactively shoulder-tapped someone who hadn’t applied for the chief commissioner’s role and suggested they put their name forward.

Little says it might be time for the job of overseeing appointments to the CCRC to be removed from the ministry and handed to the Public Service Commission.

“The reason why I was keen for the whole issue of reviewing cases of alleged miscarriage of justice, and taking it away from the ministry, is that I thought the ministry was too close to the judicial establishment.”

Given National opposed the CCRC being established, Little says it’s possible the ministry was given some instruction about the nature of the appointments the Government wanted.

“But the appointments process has got to lead to good, credible appointments.”

Leading forensic scientist Anna Sandiford was also on the CCRC’s establishment group, and has worked on numerous wrongful conviction cases, including that of Teina Pora.

But she now fears for the organisation’s future.

Sandiford says the lack of anyone with real criminal defence, and miscarriage of justice experience is inconceivable, and the failure to reappoint Hampton and Carruthers is “a massive loss”.

And she is staggered the CCRC had lost the only person with a relevant scientific background, Virginia Hope, who was ESR’s medical director.

“I find it hard to see how you can properly review these cases without that full range of skills,” Sandiford says.

“How do you see something, when you don’t know what to look for?”

Sandiford agrees with Hampton that appointing an ex-judge to be chief commissioner is a serious mistake.

“There’s no doubt [Clifford] will have an extremely extensive knowledge.

“But we’re looking at cases that are old, and therefore, is there a risk he knows people that were involved?

“It’s just that perception of independence that could be compromised.”

Sandiford says confidence that the CCRC was impartial, and separate from the justice system that caused wrongful convictions, was imperative if people were going to apply to it to have their cases reviewed.

But she believes potential applicants will now be put off approaching the CCRC, and be left with nowhere to go to get justice.

Sandiford says miscarriage of justice cases are complex and nuanced, not simply about applying legal rules, and needed experienced people who knew where the holes were.

“I wouldn’t get a florist to look under the bonnet of a car and diagnose that the turbo’s not working.”

The paucity of appropriate experience on the CCRC meant Sandiford was worried legitimate applications would now be missed, as they had been overseas.

“And I am concerned about the future of the CCRC, because if it’s not operating as intended, then is the Government going to look at it and go, ‘We don’t need it because it’s not doing the job it was meant to do, and we can get rid of it’?

“We’re lucky we have a CCRC in this country, and I really, really think it’s necessary to continue, because we know there are miscarriages of justice out there ‒ because we’re human beings, and people make mistakes.”

Sandiford says the good news is that the problems with the CCRC are fixable if the right people are involved, both as investigators and commissioners.

Denis Clifford was asked by The Post if he would consider stepping down, given the CCRC has now lost the confidence of so many in the criminal justice system. He did not reply.

Suzanne Robertson, KC, and Emma Finlayson-Davis declined to answer questions.