Following the murder of Christie Marceau in 2011 by Akshay Chand – who was released on bail after kidnapping and assaulting Marceau – the issue of judicial accountability has attracted considerable public attention. This has revealed the existence of a lack of public understanding surrounding the judiciary.
The Equal Justice Project on Campus members in response have published an issues paper concerning judicial accountability and have held a symposium with Chief District Court Judge Jan-Marie Doogue, Dr Rodney Harrison QC, and Edward Willis, a senior solicitor at Webb Henderson and a PhD student in the University of Auckland’s Law Faculty, sitting on the panel.
Following a brief introduction by the On Campus managers, Rosie Judd and Helen Thompson, On Campus volunteer Jonathan Folwell provided a summary of the paper. The paper outlined how the New Zealand judiciary system works (its scope and limits) and the judicial appointment process. It also covered the 2011 Supreme Court case of Attorney General v Chapman, which concerned the denial of a public law compensatory remedy to those who have had their rights breached under the New Zealand Bill of Rights Act by the judiciary. In regards to judicial accountability, therefore, the paper recommends that the head of each court should report to the Chief Justice, who in turn should provide an annual report on the judiciary’s business.
The first speaker at the panel was Chief District Court Judge Jan-Marie Doogue. She explained the limitations on judges in foreseeing future actions of those granted bail, given that they have no formal risk assessment tools available for consideration as part of the information provided to them in bail hearings. Judge Doogue reminded the audience that it can be impossible for a judge to predict re-offending in cases where the offender has no known criminal convictions or history that would make he or she an danger to the public if released. Be that as it may, in the future, it would be ideal for New Zealand to adopt Risk Assessment tools in order to accurately assign bail.
Judge Doogue also discussed judicial independence. She noted that judges do give reasons for their judgments and there are rights of appeal. Also, having regard to the limited resources available to the District Court, subjecting each individual judge to a certain set of requirements – e.g. requiring judges to get through a set number of cases per year – would be extreme. What should be assessed is whether the judicial institution as a whole is working correctly – assessing judgments on a volumetric rather than a qualitative basis is an unsound method for determining the health of New Zealand courts. Furthermore, addressing the frequent allegation that justice is a slow process, Judge Doogue emphasised that speediness and timeliness are different concepts. The former may result in rushed judgments. Rather, judges must (and do) work in a timely fashion, allocating the time proportionate to the issues in each case. A more complex case may require longer to be decided, but the time spent on such cases is required in order to adequately consider the issues at stake. Though defendants should not be detained longer than necessary (and judges are mindful of this), it is better that judges and the public alike participate meaningfully in the judicial process.
The second speaker, Dr. Rodney Harrison QC, focused on the role organisations like the Sensible Sentencing Trust play in judicial accountability debates. He argued that organisations like the SST are not concerned with judicial accountability in general but instead target only bail and sentencing decisions, and that the need for greater scope is crucial. Dr Harrison QC was also reserved in his opinion about judicial transparency, suggesting that the Attorney General has too much power in the appointment process. Having acted as lead counsel in the Chapman case, he stressed the distinction between individual judges being accountable for their decisions and state accountability for breaches of the Bill of Rights Act by the judicial branch of government. It was compensation by the state that was sought in the Chapman case, rather than compensation from an individual judge. He pointed out that it would be unfair to subject individual judges to public scrutiny, as MPs are not accountable individually on the legislation they choose to vote upon, and subjecting one branch of government to such assessment would be inconsistent. The current judicial complaints process also prevents collateral attacks on judges by excluding complaints about decisions subject to appeal. Nevertheless, Dr Harrison QC contends that the denial of remedy to those who have been breached of their constitutional rights under the New Zealand Bill of Rights Act is inherently flawed under the Chapman case, as New Zealand is not only breaching constitutional rights, but ignoring international obligations to provide remedies for all kinds of state breaches. Special interest groups that call for the individual accountability of judges indicate our government’s failure to correct miscarriages of justice, and measures such as extending state compensation to rights breaches by the judiciary could alleviate these issues.
Edward Willis, the final speaker, addressed the question of how we legitimise the exercise of public power. He suggested that this is done by finding reasons to respect even those decisions we disagree with – for example, the fact that decisions have been arrived at by judges applying law to the facts of a case. Furthermore, the concept of democracy enables the respect of exercises of power we may disagree with due to the perception that everyone has had a fair opportunity. Mr Willis felt that the Chapman case is a perfect example for his arguments, as the majority did a good job in being upfront about the value judgments they had to make and the policy issues relating to the judgment. By focusing more on the policy arguments as opposed to the principles of Chapman, he generally thought that the judges unpacked their arguments logically and that the denial of a remedy was justified. In regards to judicial accountability, Mr Willis thought that informed and reasoned criticism of judges’ decisions should be encouraged for laws to evolve and for legislative change to occur. He sees it as unfair for the public to expect individual judges to be subject to criticism. The judicial community as a whole should be held accountable. Not only does this enable judicial independence, but it does not infringe on the public’s right to see justice being done. Edward was critical of the SST’s model for judicial transparency, as it is based on the notion that certain substantive outcomes are better than others, and does not allow for an understanding of the reasons for the decision, which is necessary for informed critique of decisions which could in turn lead to evolution of the law.
Questions for the Panel
The audience was then invited to ask the speakers questions. One of the main points of discussion that arose was that of public education regarding the judiciary. Generally, the panel agreed that there was a lack of education to the public (and at school level) regarding the judicial system in New Zealand. However, it is not the judiciary’s role to educate the public. Judge Doogue validly pointed out that it is not constitutionally correct for a judge to comment on decisions by individual judges Dr Harrison QC pointed out that any official comment on a judge’s decision was traditionally the Attorney General’s responsibility, particularly when the Attorney-General came from a legal background. Though the Law Society is now attempting to fulfil this role, its impact is minimal. Meanwhile, Mr Willis thinks that so long as the lack of academic commentary on important issues peculiar to New Zealand prevails, so too, will the problem of lack of awareness and critique surrounding judicial accountability. Comparisons were drawn between New Zealand and other jurisdictions where social media and blogs play a large part in commenting on judicial decisions. There were issues with fostering public engagement in these issues and having an informed public – for example, the recent GCSB saga marks a rare example of large-scale public engagement in a political issue.
Other topics discussed included the need for judges to recognise that they come from particular backgrounds and may bring specific values into decisions, however unconscious. Mr Willis felt that it was beneficial for judges to be clear about the values and policy factors at play in their decisions, since it is an impossible standard to require judges to disregard every predisposition they may have – judges are human, after all. The role of the media for judges was also discussed – Judge Doogue noted that judges have been making themselves more available for public comment recently, but it was important that they did not appear to be courting the media. Furthermore, it was noted that intense public criticism of individual judges has very real personal effects on those judges and their families.
The evening concluded with pizza, nibbles and drinks. EJP looks forward to hosting more Symposia in the future!