A powerful speech by the Chief Justice Sian Elias has the country’s judges and lawyers talking – and any new government on notice that the rule of law is under threat, Tim Murphy reports.

Judges don’t engage in politics, which is at times a pity.

They do, however, cry enough-is-enough when politicians and bureaucrats are infringing on fundamental rights and changing the quality of our justice.

A little-noticed speech by the Chief Justice, Dame Sian Elias, has done just that.

With great care in her words, she has raised questions about cost-cutting, ad-hoc, hasty, and non-consultative decision-making and widening devolution of powers to the police rather than the courts that have sounded alarm bells in the legal fraternity.

The judge did not say it in as many words – in any words, directly – but it is clear that moves by the Ministry of Justice to clip the judiciary’s wings, administratively, incrementally and by stealth – as well as government policy to treat the courts as the same as government departments and drive judges to achieve arbitrary targets – have rankled.

She urged lawyers to demonstrate why the changing attitude by the state towards the courts “is dangerous to the rule of law.”

Dame Sian quoted a “sobering” American book which lamented “assembly line adjudication.”

“There is risk in the blurring of the distinct role of courts.”

Distancing her remarks from the US system, she did however say some of what is going on here is “deeply worrying” and challenged basic elements of justice like the right to silence and “the ability of impartial judges to do what is fair and just”.

“We need to be careful” she concluded her address to the Criminal Bar Association in August, just before the election season.

Dame Sian’s concerns include:

– a move to ‘managerial justice’ in the criminal law in which judges are expected to manage cases to achieve early guilty pleas

– matters increasingly peeled away from judges and open courts by administrative changes

– new powers for police to issue pre-charge warnings, for which those concerned must admit their offending, that can remain on people’s records and be used against them in the future

– over-incentivisation of people to plead guilty and for judges to seek early guilty pleas by indicating sentences

– ‘ambitious’ talk of physical courts becoming a thing of the past in some places and judges remotely considering cases electronically for defendants appearing via camera

– a trial in Christchurch of cases avoiding courts altogether and being referred by the police to ‘community or neighbourhood panels’ – described by one jurist as ‘an alternative justice system without the protections and without the trained participants”

– a case in which a court was asked by Corrections officials to schedule its cases in a certain order so the prisons could deal with a shortage of female remand beds 

– the courts being treated as part of a wider public management model that ‘integrates’ criminal justice agencies such as police and prisons

In several of these matters, the Chief Justice asks if sufficient debate or public consultation has been undertaken.

“There may be very good administrative sense in much of this and it may suit busy practitioners and judges and prisoners,” she said. “But what it shows is that the courts in the middle of the pipeline are not seen as standing apart from the whole of government effort. They are not seen as a separate institution of government. There is risk in the blurring of the distinct role of courts.”

She said “further straws in the wind” involved the “submergence of courts within the wide range of operations run by the Ministry”.

“There is little agreement about where judicial administration takes over and Ministry administration leaves off. These matters of separation were flagged as problems from the time the Ministry of Justice took over the Department for Courts.

“They have become acute because of the erosion of the culture of courts within the Ministry.”

Dame Sian said there could be merit in some of the measures to deliver justice by electronic means. “But who is questioning where this is going and how it affects the impartial, equal and public delivery of criminal justice.”

Her most detailed concern was over what she termed “encouragement to plead.”  

“The common law has traditionally regarded admissions of guilt with suspicion when made under inducements. Just as is the case with confessions made to the police, guilty pleas may be false. 

“They may be entered into because of a calculation of risk or simply to put an end to uncertainty, rather than because a guilty plea is right. There is a growing literature and case-law on the risks of inaccuracy in guilty pleas.”

“There is a risk of over-criminalisation if people are incentivised into acquiescing in alternative resolution because it seems comparatively costless at the time.”

She had been surprised to even hear some judges speak of their “success” in obtaining pleas by giving defendants sentence indications.

“Achievement of disposals through sentence indications takes matters to a new level. Has there been removal of some judicial inhibitions in criminal justice? Does it pose risks for some of the values we have treated as fundamental to criminal justice?”

“Rush to plea is not a goal we should be pursuing.”

Her second major strand was over justice being moved away from the courts and out of public view. “Pre-charge warnings and the resolution of cases through community justice panels have consequences for those who are dealt with under them.”

Not only must offending be admitted, but that admission formed part of the police record and was maintained on that person’s “criminal history,”  could be used for determining future warnings and used in any future court actions.

Dame Sian said: “The information obtained through these processes, including the acknowledgment of guilt, is also information which maybe shared by the police with other agencies and can be used in the police vetting increasingly resorted to by public and private bodies.”

She added: “There are therefore significant public law powers which potentially provide opportunities for intrusive social control of the individuals affected.

“There is a risk of over-criminalisation if people are incentivised into acquiescing in alternative resolution because it seems comparatively costless at the time.”

Towards the end of her speech, the Chief Justice observed: “It is difficult to escape the feeling that some of these apparently ad hoc developments may not have been thought through in terms of fundamental principles such as the impact on the presumption of innocence, the right to silence and the right to legal advice.”

Cost-cutting was obliquely criticised.  Uniform, equal and predictable justice “may not be speedy and it is not likely to be cheap. I do not expect criminal justice ever was speedy or cheap. Its careful observance is however best policy for a state that aspires to live under the rule of law.”

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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