Road to justice long — but it’s an essential journey
Criminal Cases Review Commission was flooded with work
WI don’t envy them the task of clearing this decades-long backlog.
hen the Criminal Cases Review Commission (CCRC) was launched to investigate possible miscarriages of justice in New Zealand, I wrote that it was the most important development in criminal justice since the advent of the Supreme Court. I still believe that.
Yet last month, an article in the NZ Herald took aim at the CCRC’s slow start, pointing out that the commission has yet to finish investigating any cases after almost two years of operation. The article was entirely accurate, but potentially a little misleading, because as many as 80 applications have been considered and closed by the CCRC — and those are results. But regardless, as we’ll see, the reasons for the seemingly slow start actually show why we should be grateful we have the commission.
The main problem faced by the CCRC is the sheer number of cases that came flooding in once it opened. The commission has received some 282 applications as of March this year, which is around 50 per cent more applications than it was expecting.
Personally, I can’t say I’m entirely surprised. Despite New Zealand having an extremely good justice system, I’ve been approached by scores of people who say they’re innocent of certain crimes, and one I investigated as part of a TV series. From that, I’m convinced Michael October is innocent of the heinous rape and murder he was convicted of.
The demand, then, is incredibly high, and given that up to this point there has been no meaningful alternative to the commission, the backlog of that demand is substantial. When applications opened, it was like a dam bursting.
But part of the massive wave of applications wasn’t just demand but also the ease by which applications can now be made. And to understand that, we need some context.
There were notable biases in the old system. Of the 38 people who applied for the Royal Prerogative of Mercy between 2010 and 2019, only three reported their ethnicity as Māori, which is only half as many as we might expect relative to the population of New Zealand, and around a sixth as many as we’d expect relative to the prison population.
With these issues in mind, the process of applying to the CCRC is remarkably easy, meaning there are no barriers to access. The application form is relatively short, and designed not to be intimidating. Given the dismal literacy statistics regarding prisoners, and the number that even struggle to fully understand the nature of what has
happened to them in court, the process for making an application needed to be as simple as possible. But this does mean that it takes a lot of work for the commission to make sense of an application in the first place, to get it to the point where they can tell if it needs further investigation or not.
I don’t envy them the task of clearing this decades-long backlog, but this is what needs to happen before the commission can begin operating in any kind of a normal and consistent way.
If there is fault to find in the slow start, then, it’s actually better to focus on the slowness in successive governments establishing the commission in the first place.
A Criminal Cases Review Commission was first recommended for New Zealand by Sir Thomas Thorp, whose 2003-2004 review found that there was a key gap in our justice system. That it took so many years to actually come into being is woeful, but all credit to the Labour Government for finally getting it up.
The need for more robust mechanisms for investigating miscarriages of justice in New Zealand is made clear in cases like that of Teina Pora, a young man with foetal alcohol syndrome and a mental age of 10 who was convicted of rape and murder based on a false confession, and who served 21 years in prison before finally having his conviction quashed by the Privy Council in 2015. More recently there’s the case of Alan Hall, who was found guilty of murder in 1986, and who has spent many of the intervening years in prison, but whose conviction will soon be quashed after Crown Law admitted that a key witness statement was altered, and important evidence was withheld during his original trial.
These are cases where the old system of appeals seems to have succeeded, but they took decades, and happened because of an incredible amount of help from supporters who were willing to undertake investigations using their own resources.
The CCRC is designed to ensure that future cases like this are dealt with faster, and don’t need to rely on the charity of strangers to make them possible. But that takes a great effort. And when the commission is overrun with cases, we must expect some time for it to find its feet.
But one thing is sure, fewer people will not have to languish as they once did, unheard and often carrying a terrible stigma they don’t deserve.
Dr Jarrod Gilbert is a sociologist at the University of Canterbury and the director of Independent Research Solutions.