Amicus Curiae: Is it Too Late to Say Sorry? Compensation for the Wrongly Convicted in New Zealand

By Lauren White

It is widely accepted that those guilty of a crime can be and should be held accountable. However, what happens when an innocent person is prosecuted or imprisoned? In New Zealand, the Government may decide to compensate a wrongfully convicted person, however its system for doing so is flawed, and should be improved to demonstrate New Zealand’s commitment to justice.

Why should people be compensated for a wrongful conviction?

New Zealand has no legal right to compensation, however there is still a high value placed on liberty. When discussing New Zealand’s compensation system in their 1998 report, the Law Commission points out that the state’s ability to make and enforce laws gives it enormous power over ordinary citizens. Citizens accept that the state has these powers so they can be protected from criminal activity. However, it is consistent with New Zealand law to claim that when the state misuses its powers and breaches the trust of its citizens, it should make up for its mistakes through compensation. The New Zealand Bill of Rights Act 1990 is a statutory recognition of the importance of liberty, as it includes rights that protect citizens from being detained for no reason, such as freedom of movement and liberty of the person. Similarly, The UN’s International Covenant on Civil and Political Rights declares at Article 14(6) that innocent persons convicted and punished have the right to compensation by law. Why is this? It is because one of the most important values of democratic societies is the physical and psychological freedom of its citizens.

Compensation is also important from a moral standpoint. Convicting an innocent person will not just remove their freedom for a time, but have an ongoing negative effect on their lives. Wrongly convicted people are more deeply affected by the conditions of prison. They are isolated outside prison, with damaged family relationships and the stigma of a criminal conviction often remaining even after having their name cleared. This impacts future relationships and finding work. This stigma can also attach to the family, which spreads the scope of the damage caused. Anger and mistrust towards the Government and law enforcement is also common. Financial compensation and apology cannot fix these issues, but they go a long way in helping the wrongly convicted try to rebuild their life, and restore some of their trust in the state.

What is the current compensation system in New Zealand?

In New Zealand, compensation for a miscarriage of justice is, to put it simply, a random act of kindness. The compensation scheme is set out in the Cabinet Guidelines rather than statute, and makes compensation a ‘discretionary power’ of Government instead of a legal obligation. It is up to a wrongfully convicted person to apply for compensation, and they must:

  • Be living;
  • Have served all or part of a prison sentence; and
  • Have received a pardon or have had their convictions quashed without an order for retrial.

To receive the compensation, the claimants must have been imprisoned on a wrongful conviction and be found to be innocent on at least the balance of probabilities. The Minister of Justice then appoints a Queen’s Counsel to assess whether the latter condition has been met. Following this advice, the Minister will decide whether to compensate. Payment of compensation is recommended to be $100,000 per year of imprisonment plus additional money for financial losses. Recently, Minister of Justice Andrew Little has begun to adjust compensation for inflation, increasing the amounts that Teina Pora and Tyson Redman have received.

Under this system of Government benevolence, only eight people have been compensated for wrongful convictions since 1998 including Redman. However, there are likely many more cases like these that have not received compensation.

Improving the current system

The current system is flawed in several ways. One of these is that there is a double standard in how those falsely imprisoned and wrongly convicted are compensated – while those imprisoned without reason can always receive compensation by taking their claim to Court, a person wrongly convicted will only receive compensation if the Government decides to grant it. Another issue is that the wrongly convicted person must instigate the process and prove their innocence. Putting this burden on the claimants reduces the number of potential claimants who are willing or able to apply for compensation. Additionally, there is no real safeguard against bias in choosing to compensate. Having the Minister of Justice make these decisions creates a lack of independence, as the Minister is reviewing the system they are in charge of. Their decision is also subject to scrutiny from the public and political opponents, which could impact the Minister’s decision. The current system of review also takes a long time, which prevents claimants like Redman from moving on with their lives. These are only a few of the issues.

One solution would be to create an independent body to review miscarriage of justice cases, modelled on the UK’s Criminal Cases Review Commission (CCRC). The UK CCRC investigates an innocence plea at no cost to the plaintiff, and will send the case to the Court of Appeal if there has been a mistake. It is an independent body, unbiased because it acts on the interests of justice, rather than being influenced by the interests of either the Ministry or the claimant. Claims are dealt with quickly and efficiently. It ensures all cases where there is a miscarriage of justice will be reviewed, not just ones it deems worthy. It is not a perfect system, but it is regarded as more effective and conducive to justice than New Zealand’s system.

Labour and New Zealand First have agreed to instigate a CCRC in New Zealand. If this system is implemented like it has been in the UK, it will make sure that more people with wrongful convictions can apply for compensation, and more people will get the justice they deserve.

The future looks promising. Minister of Justice Andrew Little has demonstrated in words and action that his focus in cases of wrongful convictions is to correct injustice. New Zealand First and Labour’s Criminal Case Review Commission are expected to be established by mid-2019. However, it is early days. Until the Government makes compensation more accessible for the wrongly convicted, injustice will remain in our criminal system.

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Featured image: https://www.stuff.co.nz/entertainment/tv-radio/95041089/teina-pora-peter-arnett-subjects-of-new-nzoafunded-features

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