THIS WEEK’S ARTICLES
Issue 31 11 Sep 2020
A gap in the miscarriage-ofjustice body’s powers p1
Election 2020: what lawyers want from the incoming govt p4-5
Should you take an unpaid internship? P7
LawNews adls.org.nz
CRIMINAL LAW/PUBLIC LAW
Gap revealed in justice commission’s powers By Rod Vaughan & Jenni McManus
The Supreme Court’s decision to allow an appeal against the conviction of sex offender Peter Ellis to continue in spite of his death has highlighted a gap in the jurisdiction of the Criminal Cases Review Commission (CCRC) – the newly-formed body set up to consider claims of miscarriage of justice.
Ellis died in September 2019, nearly a year before the commission began accepting applications on July 1 this year.
© Gina Smith | Dreamstime.com
The commission, headed by Colin Carruthers QC, can consider applications only from living people or their relatives although it has the power to continue to investigate and review an application if the convicted person dies after it is filed.
The principles of tikanga have loomed large in the Peter Ellis appeal
To allow applications for a conviction to be investigated on behalf of a deceased person would require legislative change, Carruthers says. “There was quite a lot of debate at the time that the bill was going through [Parliament] as to whether it should extend to dead people without limit, so I think a policy decision was made there. I think the concern was that if you open it up to dead people, you really open Pandora’s box. “But one of the things we have recognised and discussed among ourselves as commissioners is what impact the Peter Ellis decision will have on our jurisdiction and whether it will open up that issue for the commission’s powers extending to people who are dead,” he says. “Maybe there would be some mandate for putting a time limit on how far back you could go. That might be one way of dealing with it.” This power already exists in some overseas jurisdictions. Carruthers cites the case of
Abdelbaset al-Megrahi, the Libyan national convicted of bombing Pan Am Fight 103 over Lockerbie on 21 December 1988.
within the legal profession for expanding the CCRC’s remit to include applications from relatives of dead people.
al-Megrahi was convicted and sentenced to life imprisonment in January 2001. In 2003 he asked the Scottish Criminal Case Review Commission to review his conviction and the commission referred the case to the High Court for determination. But al-Megrahi abandoned the appeal shortly before he died of cancer in 2009.
Describing the Supreme Court’s decision as “landmark”, AUT law professor Kris Gledhill says it highlights a “deficiency” in the CCRC’s powers.
In 2017 his widow and other relatives asked the commission to once again review the conviction. In March this year the commission again decided to refer the matter back to the High Court, saying a miscarriage of justice might have occurred by reason of an unreasonable verdict and the nondisclosure by the Crown of key documents. Back in this country, there is plenty of support
“[The decision] not only opens the door for the first substantive criminal appeal after someone has died, but it also points to a gap in our CCRC,” Gledhill says. The decision to set up the commission last year recognised the importance of a more systematic approach to investigating possible miscarriages of justice. “It was a welcome change, reversing the position of previous governments, but eligibility is limited to living persons or someone they have authorised. Continued on page 2