Thursday, September 29, 2022

(Some) justice for "three strikes"

Last year, the Supreme Court ruled on National's (now-repealed) unjust "three strikes" law, and ruled that the sentences it required were so disproportionate as to "shock the conscience" and violate the Bill of Rights Act ban on disproportionately severe treatment or punishment. Today, they've the High Court has ruled that the victim of that injustice - a mentally impaired man who spent almost five years in prison - should never have been charged at all. They've awarded him $450,000 in damages, which will help, but the injustice still remains. Why? Because despite ruling that he should never have been charged, the conviction and resulting sentence still stand. Pretty obviously, if he should never have been charged, then he should also never have been convicted or sentenced. But that would involve the courts accepting responsibility for their part in this abuse, which they seem reluctant to do. The press summary notes that "in an unrelated case, the Supreme Court has held that judicial acts (such as sentencing) cannot found a claim under the NZBORA", and this seems like a completely self-serving decision explicitly at odds with the clear wording of s3(a), which states that the BORA applies to acts of "the legislative, executive, or judicial branches of the Government of New Zealand" [emphasis added]. But I guess that's another example of how the legal profession is all about making words mean things that they don't, or not mean things that they do.

This case raises more questions. The job of "crown prosecutor" is weirdly contracted out to private law firms, so the obvious question is whether that contractor - who has manifestly failed to do their job properly - will be rehired, or whether the contract will be terminated. The other question is whether they will be paying for it, or whether the taxpayer will be carrying the can for their failure. Because the latter seems utterly unacceptable.

Finally, a ruling that prosecutorial decisions are bound by the BORA ought to result in some change, which will be welcome. But the decision also has obvious application to mutual assistance and extradition cases where someone may be subject to disproportionately severe treatment or punishment. And hopefully that will act as a deterrent to legal cooperation with cruel foreign regimes like the USA or China.

Correction: This was a High Court decision, not a Supreme Court one.