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Monday, May 08, 2006

Independent Prosecutions Authority

PROSECUTORIAL INDEPENDENCE

We need an Independent Prosecutions Authority separate from the law firms whose secret tenders lead them to hold Crown warrants to prosecute in the name of the Crown as government prosecuters. Other countries have this system, including Australia:-

...effective removal of the prosecution process from the political arena by affording the Director an independent status in that process... there will be a separation of the investigative and prosecutorial functions in the Commonwealth criminal justice system. Once a prosecution has been commenced and referred to the DPP, the decision whether to proceed with that prosecution is made by the DPP independently of those who were responsible for the investigation.

Compared to our state of affairs with "Crown Law":-

The Solicitor-General, the chief executive of the Crown Law Office, is the chief legal advisor to the Government (subject to any views expressed by the Attorney-General). In addition, the Solicitor-General is responsible for the conduct of the prosecution of indictable crime. The office of Solicitor-General is entrusted by statute with specific rights, duties and functions and is also responsible for performing most of the statutory and ex-officio duties of the Attorney-General. - in other words the Solicitor-General is the de facto Attorney-General (esp. since the current one ain't a lawyer - derrr!) and also effective Prosecutor-General. In typical Westminster System style it devolves far too much power into the hands of a single person whose appointment is done with much secrecy.

In the interim however an independent body that can initiate legal proceedings on behalf of the public doesn't even have to be part of the government. As long as someone who has a healthy scepticism of the govt. (like Bob Jones) is willing to put up some cash as a public service it could be run entirely privately. Paintergate anyone? The filing cost to lay an indictment is $30 from memory.

Police could still prosecute as they do now - or perhaps just for lesser offences.

I have been in favour of a police/prosecution split for some time - but I make this recommendation as Murray McCully has put the cat amongst the pigeons by attacking the appointment of the Solicitor-General, Terence Arnold, to the Court Of Appeal in most unparliamentary terms.

"Arnold, having piloted the culture of obsequious acquiescence which now infests our law enforcement authorities, is not fit to serve on the bench, let alone the Appeal Court bench.

Arnold has been trouble from day one. He's earned his stripes by doing the Labour government's bidding and thus cannot be completely trusted to be a fair and independent arbiter of justice. Favours for favours is what it boils down to - if Arnold had prosecuted, or even taken a fraction of the interest he showed in personally prosecuting Nick Smith MP, over Paintergate or whatever would he be looking at the bench of the Court of Appeal from the judges' side? - of course not. And the Attorney-General appointing him? Well, none other than Michael I-don't-believe-in-Supreme-Law Cullen IANAL. For a job well done from their point of view. And disturbingly in the press release announcing it I can't find any corresponding announcement of a new Solicitor-General. Surely he can't continue in both roles!!?

The back room deals over judicial appointments is praised by the legal profession's heirarchy as they are the primary benefactors. McCully's outburst has been criticised in disappointingly partisan terms from some quarters.

McCully (in the same opinion piece) also criticises the police for not prosecuting the Labour party's significant and blatant election overspending. Having the police in both investigation and prosecution roles is often unsuitable for many matters and this is one of them. An independent body, with enough funding naturally, could be attached to the Ombudsman's office even. Or at any rate could be responsible to parliament directly rather than to the executive. It would add credibility.

A TRIBUNATE

Another idea is to have investigator/ombudsman as Tribunes, perhaps half a dozen or more to act in the interests of citizens in holding government to account. At the moment we have the Ombudsman and the Health and Disability Commissioner, Parliamentary Commissioner for the Environment, Inspector-Generals etc. - they could act as the first of the Tribunes. Collectively the Tribunate could have investigative powers and a referral to the prosecution service (IPA) to charge and prosecute if a majority of tribunes, (or maybe unanimous) agree - thus the lone Tribune on a crusade cannot persecute anyone by themselves except through investigation. The appointment of the Tribunes and the head of the IPA is crucial to get right to avoid the problems we have now. The Tribunes could even have their own prosecution department. I know that some will balk at making these positions publicly/popularly elected a la the USA, but what other form of selection has the same credibilty to carry out the mandate? 2/3 parliamentary vote + general vote of confirmation at elections? Candidates not to have been a party member or contributor for at least 5 years? 10 years? Needless to say one of the Tribunes must be what is now called the Chairman of the Police Complaints Authority.

STATUS OF ATTORNEY-GENERAL

Found an informative, short article by Auckland law Professor, Jim Evans about NZ judicial appointments:

Some of the early appointments were not free from political influence. Five of the 16 persons appointed as judges in the nineteenth century were prominent politicians: one of these, Sir Robert Stout, who was appointed Chief Justice, had been a former Prime Minister.7 In 1918, the then current Attorney-General, Sir Alexander Herdman, later (as we shall see) Mr Justice Herdman, earned some notoriety by effectively recommending himself for appointment. He seems not to have abandoned interest in politics, because in 1935 he abruptly retired from the bench to accept nomination a day later as an independent candidate for Parliament. He then promptly made a savage attack on the prevailing Government.

Those were the days, eh! The problem is our actual statute law has not really changed to prevent any of this - just our conventions. I've gone on about Cullen's suitability as A-G before so I'll leave him out for now and focus on what may be needed for the future in any constitution:

A-G's role to be similar as now (except judicial appointments) and to be a minister and member of the Executive Council (though not necessarily Cabinet), and must have a sort of formal legal qualification (not necessarily a current practicing cert. or even a fully completed LLB but something approaching it?) and be an independent MP who has not been a member or participated or contributed to a party for at least 5, or maybe 10 years. But there are no independent MPs... in our current system. Now in my ideal parliamentary framework we would have something like a specialised 66-ish seat Senate from where the executive and PM will come and a much enlarged House of Representatives (perhaps even around 1000 members) who are representatives of every community (smallest unit of local government) and are part-timers with modest meeting allowances and no actual stipend unless they are on a committee. From that huge pool I'm sure there will be many MPs who would be eligible for A-G. The Govt. of the day must have that voice of sanity and non-partisan independent judgement to help guide them rather than have the position handed around the current heirarchy like it was the town bike.

2 Comments:

At 8/5/06 5:08 am, Blogger sagenz said...

the tribunes is a good idea but the limits on persecution are not required. once they make the decision to prosecute a different branch will pass judgement. so more than a lone individual certainly, but unanimous?

guaranteeing political neutrality would be difficult. why bother. if they are too obviously biased they lose respect. having somebody anti labour prosecuting the many flaws of this corrupt government would be a good thing

 
At 8/5/06 10:39 am, Blogger t selwyn said...

Sage:
"they make the decision to prosecute a different branch will pass judgement" - quite correct. I meant if the tribunes have their own prosecution department it might need to be unanimous. But yes, if there was a credible IPA then they could make their own call.

The Aussie (Commonwealth) DPP site (in the link) has interesting sections on prosecution policy.

"having somebody anti labour prosecuting the many flaws of this corrupt government would be a good thing" - well they would certainly have their hands full! Perhaps the govt. of the day can put up one candidate and the leader of the opposition theirs and the third parties theirs so you get a spread. The screening process (American confirmation-style) could still take place by a select committee or even a properly independent Judicial appointments panel. The issue of a publicly confirmed mandate by way of election would add extra credibility despite it being prone to partisan politics (as in the USA - eg. Joe Macarthy led a nasty campaign to be elected as a judge) but if there were robust and open hearings to appoint them with the inability of the govt of the day to ram things through then that would also bolster public confidence.

 

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