An article in the paper at the weekend indicated that I am launching a charity this year. Just to clarify, this is not exactly the case. What I have discussed with some senior academics and criminal legal system colleagues is possibly establishing an organisation that may consider, amongst other legal issues, potential miscarriage of justice cases. This would be a neutral organisation that would review all relevant information in a case (not just the information that made it into evidence), generally post-trial/conviction.
Whether or not this takes the form of a charity is not something that has been decided; charity status is difficult to achieve and may not be the best way forward and, in fact, may not be appropriate. We just don’t know yet but there are a few models that would be fit for purpose that can be explored. We don’t even have a name for this organisation at present.
Based on my casework experience, I do believe there is a gap in the system into which fall post-conviction criminal cases that need to be reviewed but not necessarily on a solely legal basis. There are three main contributors to miscarriages of justice and those cases that become miscarriages of justice will probably have at least one of those three contributors:
- poor or inadequate police investigation
- poor or inadequate science
- poor or inadequately prepared defence
The more of these three there are, the more likely the chances of miscarriage of justice.
It is a fact of life and the adversarial legal system that sometimes the system gets it wrong, for whatever reason. We cannot expect to get everything right all the time so we should have workable systems in place to test information as a case progresses and also a system to test those cases that may have been failed. Not all cases will have any merit to them; many will not. Other countries with an adversarial system have organisations that undertake this role; New Zealand currently does not.