Debate needed on criminal justice system goals

A Bill which will make significant changes to criminal procedure in New Zealand is premature and there should first be a serious debate about what our criminal justice system can deliver, New Zealand Law Society President Jonathan Temm said today.

Presenting the Law Society’s submission on the Criminal Procedure (Reform and Modernisation) Bill to Parliament’s Justice and Electoral select committee, Mr Temm said until there was agreement on the principles underpinning the criminal justice system, the present piecemeal approach would continue.

“Reforms to the criminal justice system don’t seem to have any coherent or unifying philosophy. Take the Sentencing Act 2002, for example. This was amended in 2003, 2004, twice in 2006, twice in 2007, again in 2008, five times in 2009, and twice in 2010. Every piece of our criminal justice legislation like the Bail Act and Parole Act has a similar history,” Mr Temm said.

“The criminal justice system is being treated a bit like a bone which legislators are gnawing on. The underlying principles are not clear and we need a mature discussion which brings together all points of view on where we should be going. If we go ahead and make the changes in the present Bill, we will be cast in cement boots for the next 20 years and inevitably continue with piecemeal amendments to it every year.”

The Law Society’s written submission to the committee also highlighted its concern that measures in the Bill may threaten some of the long-established rights at the heart of this country’s justice system.

Mr Temm said the select committee should consider whether changes proposed by the Bill were a proportionate response to the drive for greater efficiencies in the criminal trial process.

“Efficiency gains should not be at the expense of rights such as the right to a fair trial,” Mr Temm said. “The Bill is proposing to amend the New Zealand Bill of Rights Act 1990 to restrict the right to trial by jury contained in clause 24(e). This is the first time ever that there has been an amendment to such a right as contained in that Act.”

The Law Society’s submission stated that there was no clear evidence of significant cost savings from raising the threshold for the right to trial by jury from offences carrying a maximum penalty of more than three months’ imprisonment, to more than three years. Such a fundamental change to a well-entrenched right for an undefined and unknown minor efficiency benefit was worrying.

Looking at other matters in the Bill where the New Zealand Law Society saw problems, Mr Temm said the introduction of a regime requiring the defence to identify disputed issues (“DIDI”) was a “fundamental change” in New Zealand criminal law. It reversed the traditional rule that the prosecution had to prove every matter relating to an offence.

“Like the efficiency argument made to raise the jury trial threshold, this proposal places the efficient management of criminal trials ahead of the concepts of participation and due process,” he said.

“The Law Society believes that most criminal lawyers do not support the DIDI regime, although some lawyers are in support. We believe that there needs to be a much more detailed examination of the arguments for and against before a DIDI regime is introduced.”

Other areas where the Bill challenged or impinged on rights enshrined in the New Zealand Bill of Rights Act included the defendant’s right to be present at hearings and the introduction of two exceptions to the double jeopardy rule.

“Again, the New Zealand Law Society urges Parliament to carefully consider whether the impact of the Bill on centuries-old rights is really justified and whether there is hard evidence that suggested efficiencies will really eventuate.”

The Law Society’s 45-page submission on the Bill also provided specific comments on each of 112 clauses. As well as noting ways in which the clauses could be drafted to better achieve their purpose, the comments point out inconsistencies and potential problems with interpretation.

© Scoop Media