The Royal Prerogative of Mercy
A Review of New Zealand Practice
This paper was prepared by Mr
Neville Trendle
in consultation with the Ministry of Justice
(This web version has changed page number
references
in the original to Section Title references)
Please
send submissions to:
Alison Stephens
Principal Adviser
Ministry of Justice
Fax: 04 494 9917
Electronic copies to:
Alison.stephens@justice.govt.nz
We are happy to meet you to discuss the process.
Please ring Alison: 04 494 9745
Submissions due by 16 May 2003
Confidential Draft Only - This paper does
not constitute Government Policy
The Royal Prerogative of Mercy: A Review of
CONTENTS
Executive
Summary
Introduction
Background
·
The nature of the Royal prerogative of mercy
·
Pardon – section 407 Crimes Act 1961
·
Miscarriages of justice – section 406 Crimes Act 1961
·
How applications are considered
·
Threshold for considering applications
·
Procedure within the Ministry of Justice
·
Analysis of applications since 1996
·
·
·
·
·
Role of the Minister of Justice
·
Work practice issues
Investigations and Inquiries
·
The transparency of the Ministry’s processes
Determining when and how to exercise the
Royal prerogative of mercy
Case priority
Communication with applicants
·
The impact of unrepresented applicants
·
The role of the Court of Appeal
·
Ministry of Justice Unit
·
Independent Board
Compensation
for persons wrongly convicted
The Royal Prerogative of Mercy: A Review of
Back to Contents
EXECUTIVE SUMMARY
The Royal Prerogative of Mercy is an important safeguard in our criminal justice
system. It provides an avenue for
convicted persons to petition the Crown for relief in cases where an injustice
may have occurred. It is usually sought after all appeal rights have been
exhausted. It enables the Governor-General to provide a remedy to pardon a
convicted offender; to remit or grant respite from the sentence imposed; or to
refer all or part of a case to the Court for further review. It is an exercise
of clemency that acknowledges that the judicial process with its reliance on
rules of evidence and procedure can occasionally be fallible.
An increase in the number and complexity of applications over the last five
years prompted this review. Additionally, some overseas jurisdictions have
introduced new procedures to deal with such cases. It is important for the maintenance of public
confidence in the criminal justice system that the process for considering
applications for the exercise of the Royal prerogative of mercy is reviewed on
occasions to ensure that it remains relevant to society’s socio-legal values.
The Background describes the status
of the Royal prerogative of mercy. In
How applications are considered is discussed under the heading The Current Process. The
Governor-General receives applications for the exercise of the prerogative of
mercy and refers them to the Minister of Justice for consideration. If the
Minister of Justice recommends granting a pardon, or referring the case to the
Court under section 406 Crimes Act, then the advice is accompanied by an Order
in Council. If the Governor-General accepts the advice, the matter is
formalised at a subsequent meeting of the Executive Council with the
Governor-General signing the Order in Council.
Legal advisers at the Ministry of Justice analyse and consider all applications
for the exercise of the prerogative of mercy.
Each application is unique. In
some cases it is apparent that the application does not reach the threshold for
the prerogative of mercy to be exercised.
Other cases raise complex or numerous issues that can take months to
work through. Usually it will be
necessary to obtain the relevant court file, and to seek further information
from the applicant. Occasionally the
advisers will seek the police investigation file; obtain specialist legal or
non-legal advice, for example, from an independent barrister or a forensic
scientist; or ask the Police or an independent barrister to interview or
reinterview witnesses.
Since 1996, 63 applications for the exercise of the prerogative of mercy have
been received. As at 30 June 2002, a decision had been made in 47
applications. Of those, 7 resulted in a
reference to the Court in terms of s 406 Crimes Act 1961, the terms of
reference of an existing reference were widened in one case, and a Ministerial
inquiry held in another. No pardons were
granted, and 38 applications were declined.
As at 30 June 2002, 16 applications were still under consideration.
Under the heading of Judicial Review
the paper notes that up to now the exercise of the Royal prerogative of mercy
has not been judicially reviewed. It is,
however, recognised that in principle there is no reason why the procedure
followed in exercising the prerogative of mercy should not be open to judicial
review.
What happens in overseas jurisdictions is the subject of Overseas Models. The
framework for considering applications for the Royal prerogative of mercy in
For example, a procedure unique to
In
In its report to Parliament in 1993, the Commission recommended that the
responsibility for reviewing allegations of a miscarriage of justice be removed
from the Home Secretary and transferred to an independent authority to be
established. The major consideration
that led to this recommendation was the Commission’s belief that the role
assigned to the Home Secretary to refer cases to the Court was inconsistent
with the separation of powers as between the courts and the executive. The “scrupulous” observance of
constitutional principle led to a reluctance on the part of the Home Office to
inquire deeply enough into the applications it received.
Effect was given to the Runciman Commission’s recommendation with the passage
of the Criminal Appeal Act 1995, and the establishment of the Criminal Cases
Review Commission. Its responsibilities
are discussed on page 10.
Until 1999, the process for considering applications for the exercise of the
prerogative of mercy in
Next, the paper identifies Issues
relating to:
·
the role of the Minister of Justice
·
the Ministry’s work practice, particularly in regard to
investigations and inquiries
·
the transparency of the Ministry’s process, particularly as
to how it applies the criteria for referral or for pardon to cases; how it
determines case priority; and communication with applicants; and the
·
the impact of unrepresented applicants.
Lynley Hood’s critique of the Court of the Appeal and the Ministry’s response
is also outlined under Issues.
Under Options and Proposal the
Ministry seeks views on the principles applied, and the strengths and
weaknesses of the two options outlined.
The options are a Ministry of Justice Unit, or a Board of three or four
part time members, chaired by a former Judge and including members of high
standing in the community. The Ministry
indicates its preference for an independent board, but seeks views on this
option.
Finally, the paper discusses the matter of compensation for the wrongfully
imprisoned, noting that if a Board is established then it could have
responsibility for the administration of compensation.
Submissions
Ministry welcomes comments on any aspect of the paper by 16 May and most
particularly on the following issues:
·
The constitutionality of the role of the Minister of Justice
providing the Governor General with advice on applications seeking the Royal
prerogative of mercy
·
The different approaches to determining the threshold
applications have to meet in order to establish that a miscarriage of justice
has taken place
·
The proposals that relate to enhancing the administrative
practices of the Ministry, and whether the process should have equivalent
powers to Commissions of Inquiry
·
The role of the Court of Appeal in the Royal prerogative
process as queried by Lynley Hood’s book “A
City Possessed”
·
The options proposed, that is: (i) to establish a small,
dedicated unit in the Ministry of Justice; or (ii) to establish a Board of
three i.e. one former Judge as Chair and two other members
·
Whether an independent board should also be responsible for
determining compensation matters, and if so whether it should be tasked with
making the decision or making a recommendation to the Minister of Justice.
The Royal Prerogative of Mercy: A Review of
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INTRODUCTION
The Royal Prerogative of Mercy is an important safety net in our criminal
justice system. It provides an avenue
for persons convicted in the Courts to petition the Crown for relief in cases
where an injustice may have occurred. It
enables the Governor-General to provide a remedy in one of three ways: firstly
to pardon a convicted offender; secondly to remit or grant respite from the
sentence imposed; and thirdly to refer the case itself, either in whole or in
part, to the Court for further review.
The prerogative of mercy is not a final right of appeal from court decisions –
indeed it is usually sought after all appeal rights have been exhausted. It is available in those rare cases where a
miscarriage of justice may have arisen through the disposition of the case in
the courts, or where there are other grounds for the exercise of mercy.
An increase in the number and complexity of applications over the past five
years prompted this review.
Additionally, new procedures in some overseas jurisdictions have been
introduced to deal with cases where a miscarriage of justice may have
occurred. It is important for the
maintenance of public confidence in the criminal justice system that the
process for considering applications for the exercise of the Royal prerogative
of mercy is just, cognisant of society’s changing socio-legal values, and
efficient.
This paper provides a vehicle for discussion.
Its objective is to provide:
·
An overview of the law and practice in
·
A review of overseas models
·
An overview of the issues the current processes in
·
Options and proposals for enhancing current practice
Comments on the issues and the proposals for improvements outlined in this
paper are welcome.
The Royal Prerogative of Mercy: A Review of
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BACKGROUND
The nature of the Royal
prerogative of mercy
The Royal prerogative of mercy is one of the prerogatives vested in the Queen
as sovereign. It operates in two
different ways. The first is the
exercise of clemency either through the grant of a pardon or by ameliorating
the penalty imposed by the court. The
second is to correct mistakes; to provide an acknowledgement that the judicial
process with its reliance on rules of evidence and procedure, does not always
reach the correct result as to guilt or innocence. Notwithstanding appeal processes for
convicted offenders, occasionally the judicial process is fallible. Cases may arise where, after appeal rights
have been exhausted, new evidence is discovered that tends to throw doubt on
the correctness of the conviction.
In
·
Granting a free pardon (which has the effect of wiping the
conviction and sentence)
·
Granting a pardon subject to conditions (substituting one
form of punishment for another, leaving the conviction standing)
·
Granting respite of the execution of any sentence (a
reduction without a change in the nature of the sentence)
·
Remitting the whole or part of any sentence, penalty or
forfeiture
In
addition, section 406 Crimes Act 1961 provides a statutory adjunct to the
prerogative of mercy. Since 1945,
Parliament has empowered the Governor-General, when considering an application
for exercise of the prerogative of mercy, to refer the question of the
applicant’s conviction or sentence to the Court, or to seek the Court of
Appeal’s assistance on any point arising in the case. This referral process is intended to deal
with possible miscarriages of justice.
In substance it reflects the pattern of legislation in other
jurisdictions.
Most applications for the exercise of the prerogative in
Pardon – section 407 Crimes
Act 1961
The grant of a pardon is the exercise of the prerogative of mercy to extend
clemency. By convention, it is exercised
by the Governor-General on the advice of the Minister of Justice. There have been few instances in
In terms of section 407 Crimes Act 1961, a convicted person who is granted a
free pardon is deemed never to have committed the offence. In contrast to the position in
Applications for a conditional pardon are rare.
In some jurisdictions conditional pardons are granted to commute the
death penalty to life imprisonment, or provide a pardon “in advance” to a
person implicated in a crime on the condition the person provides assistance to
the prosecution: see R v Milnes (1983) 33 SASR 211, 216. The latter is facilitated in
Miscarriages of justice -
section 406 Crimes Act 1961
Though some applications for the exercise of the prerogative of mercy seek a
pardon (see Burt v Governor-General
[1992] 3 NZLR 672 (CA)), most applicants seek reference of their case to the
Court of Appeal under section 406 Crimes Act 1961. The most common basis for such a request is
the existence of new evidence that discloses a miscarriage of justice has
occurred.
Section 406 provides as follows:
Prerogative
of mercy Nothing in this Act shall affect the
prerogative of mercy, but the Governor-General in Council, on the consideration
of any application for the exercise of the mercy of the Crown having reference
to the conviction of any person by any Court or to the sentence (other than a
sentence fixed by law) passed on any person, may at any time if he thinks fit,
whether or not that person has appealed or had the right to appeal against the
conviction or sentence, either -
(a) Refer the question of the conviction or sentence to the Court of Appeal or,
where the person was convicted or sentenced by a District Court acting in its
summary jurisdiction or under section 28F(2) of the District Courts Act 1947,
to the High Court, and the question so referred shall then be heard and
determined by the Court to which it is referred as in the case of an appeal by
that person against conviction or sentence or both, as the case may require; or
(b) If he desires the assistance of the Court of Appeal on any point arising in
the case with a view to the determination of the application, refer that point
to the Court of Appeal for its opinion thereon, and the Court shall consider
the point so referred and furnish the Governor-General with its opinion thereon
accordingly.
This provision allows the Governor-General in Council to either refer the
applicant’s conviction or sentence to the Court where the reference is heard
and determined as if it were an appeal, or to refer one or more points arising
from the application to the Court of Appeal for its opinion. The applicant need not have appealed against
conviction or sentence, though it is usual for appeal rights to have been
exhausted before an application for the prerogative is made.
A reference under section 406(a) leads to the Court hearing and determining the
matters raised as if it were dealing with an appeal. This results in the prerogative application
being effectively determined by the Court.
In contrast, a reference under s 406(b) is designed to provide the
Governor-General with the opinion of the Court on a point arising in the
case. The prerogative application,
informed by that opinion, is then determined by the Governor-General acting on
ministerial advice: R v Thomas [1978]
2 NZLR 1, 5 (PC).
Since
1963 the Court of Appeal has considered the scope of the section and the
procedure to be followed on a number of occasions. Some of the main points to emerge from the
Court’s decisions can be summarised as follows:
·
The Court is assisted by being informed of the
considerations that caused the Governor-General in Council to make the
reference: R v Morgan [1963] NZLR 593
(CA); Collie v R [1997] 3 NZLR 653
(CA)
·
The Court will not re-adjudicate a ground of appeal that has
already been heard and disposed of on the merits unless some new matter has
come to light that makes a reconsideration of the ground necessary or
desirable: R v Morgan [1963] NZLR 593
(CA); R v Ellis (1999) 17 CRNZ 411
(CA)
·
A second application for the exercise of the prerogative of
mercy is not precluded: Ellis v R
[1998] 3 NZLR 555 (CA)
·
The hearing and determination of a reference under s 406(a)
is confined to the grounds specified in the reference. The matters identified in effect become the
points of appeal: Ellis v R [1998] 3
NZLR 555 (CA)
·
The fundamental inquiry is whether taken individually or
collectively, the grounds of appeal demonstrate that there has been a
miscarriage of justice, requiring the conviction to be set aside: R v Ellis (1999) 17 CRNZ 411 (CA)
·
Where the reference requires the consideration of new
evidence, an application to the Court for leave to adduce fresh evidence is
required. The practice regarding the
reception of fresh evidence applies. The
normal rule that fresh evidence will not be received unless it is shown that
such evidence is new or fresh in the sense that it was not available at trial,
however, is not always applied rigidly if there is reason to think that to do
so might lead to injustice or the appearance of injustice: Collie v R [1997] 3 NZLR 653
(CA)
·
In determining whether there was a miscarriage of justice in
the applicant’s conviction, the Court considers whether, had the fresh evidence
been available at the trial, its cogency is such that it might reasonably have
led the jury to return a different verdict:
R v Dougherty [1996] 3 NZLR
257 (CA)
·
The function of the Court is to decide the case on its true
merits, but in doing so, in the overall interests of justice, it is required to
apply established rules and principles: R
v Ellis (1999) 17 CRNZ 411 (CA)
·
The opinion given by the Court to the Governor-General under
a section 406(b) reference is not
reviewable: R v Thomas [1978] 2 NZLR
1 (PC)
The
Royal Prerogative of Mercy: A Review of
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THE CURRENT PROCESS
How applications are
considered
In accordance with constitutional conventions the Governor-General receives
applications for the exercise of the prerogative of mercy in the first
instance. The Governor-General’s
Private Secretary acknowledges receipt of the application, and advises the applicant
that the matter will be referred to the Minister of Justice for advice. The
papers are then referred by the Minister’s office to the Secretary for Justice
for attention.
Once a Ministry legal adviser has considered the application (a process
discussed below), a recommendation as to the outcome is forwarded to the
Minister. If the recommendation is that
the application be declined, a draft letter addressed to the Governor-General’s
Private Secretary setting out that advice and the reasons for it is considered
by the Minister of Justice. The advice
to the Governor-General is accompanied by a letter to the applicant. The Governor-General considers the advice,
and if clarification of any issue is required the Minister’s Office attends to
it.
If the Minister of Justice recommends either the granting of a pardon, or a
referral to the Court under section 406 Crimes Act, the letter to the
Governor-General’s Private Secretary containing the advice is accompanied by an
Order in Council. Upon notification to
the Minister that the Governor-General has considered the advice and accepted
it, the matter is formalised at a subsequent meeting of the Executive Council
with the Governor-General signing the Order in Council.
The Private Secretary to the Governor-General advises the applicant (or his or
her lawyer) of the outcome.
Threshold for considering
applications
The exercise of the prerogative of mercy is not conducive to the rigid
application of precisely defined criteria.
It is, however, appropriate for an identifiable threshold to be reached
before miscarriage of justice applications can be considered.
When considering applications for a free pardon, the Ministry of Justice legal
advisers consider first whether the applicant has exhausted all other
remedies. Secondly the advisers look for
compelling evidence that the petitioner was not properly convicted, that no
reasonable jury apprised of all the relevant evidence could have found the
petitioner guilty.
Two principal criteria guide the process of considering applications for
reference to the Court pursuant to section 406 Crimes Act 1961. Firstly, the evidence raised by the
application must be “fresh evidence” in the sense that it was not available at
the time of trial, or, if not “fresh”, is otherwise of such a nature that it
would give rise to grounds for an appeal.
Secondly, in addition, the evidence must be of sufficient weight and
cogency that it is capable of pointing to a likely miscarriage of justice.
These two criteria are not applied rigidly as there is an overriding “interests
of justice” consideration where a strict application of the principles might
lead to an injustice or the appearance of injustice. Instances where this has occurred can be
found in the references under section 406(a) Crimes Act in R v Zachan, Court of Appeal, 11 August 1996, (CA 304/94) and Sims v R, Court of Appeal, 24 December
1997, (CA489/97).
Procedure within the
Ministry of Justice
Legal advisers at the Ministry of Justice undertake the analysis and
consideration of all applications for the exercise of the prerogative of
mercy. One of the Ministry’s senior
managers is responsible for allocating, co-ordinating, and overseeing the
process.
Each application is unique. In some
cases it is apparent at an early stage that the application does not reach the
threshold for the prerogative of mercy to be exercised. Some cases raise complex or numerous issues
that can take months to work through.
Despite the differences from case to case, the process followed can be
generally described.
The Ministry’s legal adviser who reviews the application makes an initial
assessment of the issues raised and what additional information is
required. Usually it will be necessary
to obtain the relevant court file. It is
often necessary to seek further information from the applicant and occasionally
the police investigation file will be sought.
If it becomes apparent that the application does not raise issues that could
amount to a miscarriage of justice, a draft memorandum recommending the
application be declined is prepared. The
case is further reviewed, usually by the Ministry’s Chief Legal Counsel, then
submitted to the Minister of Justice for consideration together with a letter
setting out the basis for the Minister’s advice to the Governor-General.
Some applications raise issues that cannot be resolved on the basis of the
information available to the legal adviser reviewing the matter. Further inquiry may be necessary or
specialist advice sought. In some cases
it is appropriate to ask the Police to interview or reinterview a witness, or a
report on forensic scientific issues is sought from Environmental Science and
Research Ltd (ESR). On occasion an
independent barrister is retained to interview witnesses or to provide
advice. It is not uncommon for further
information to be sought from or provided by the lawyer for the applicant. Rarely do the Ministry’s legal advisers
undertake inquiries themselves.
In the more complex cases more than one legal adviser may be asked to assist
with reviewing an application.
Increasingly in these cases, a retired judge may also be requested to
consider the application and provide a report, or review the Ministry’s
analysis of the case.
When the review of the application has been completed, the team member
responsible for the review prepares a draft memorandum containing the
recommendation to the Minister of Justice.
The recommendation and the memorandum are critically peer reviewed and
then signed off by the Ministry’s Chief Legal Counsel before it is forwarded to
the Minister’s Office.
Analysis of applications
since 1996
Since 1996, 63 applications for the exercise of the prerogative of mercy have
been received. As at 30 June 2002, a
decision had been made in respect of 47 applications. Of those, 7 of the applications received
resulted in a reference to the Court in terms of s 406 Crimes Act 1961, the
terms of reference of an existing reference were widened in one case and a
Ministerial inquiry held in another. No
pardons were granted and 38 applications were declined. A general analysis of applications received
since 1 January 1996 is outlined in the appendix.
As at 30 June 2002, 16 applications were under consideration, with ministerial
advice yet to be tendered to the Governor-General.
In nearly half the cases a decision is made within three months from the time
the application is received. Some of the
more recent applications, notably those in the Bain and Ellis cases,
have taken much longer and involved issues of considerable complexity.
Counsel had assisted approximately 55% of applicants.
The
Royal Prerogative of Mercy: A Review of
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JUDICIAL REVIEW
The extent to which the exercise of the prerogative of mercy is judicially
reviewable has been the subject of numerous court decisions and articles by
legal scholars. For most of the
twentieth century a long line of decisions of high authority held that the
exercise of the prerogative of mercy was not reviewable in the courts
essentially because the unique discretionary and extra legal nature of the
power meant it was not amenable to the judicial process; see, for example, Horwitz v Connor (1908) 6 CLR 38 (HCA); Hanratty v Lord Butler of Saffron Walden
(1971) 115 Sol J 386; de Freitas v Benny [1976] AC 239 (PC); Reckley v Minister of Public Safety and
Immigration No 2 [1996] 1 All ER 562 (PC).
With the developments in administrative law over the last 25 years, it has
become accepted that the exercise of a prerogative power is not necessarily
immune from judicial review. The
question of justiciability turns on whether the subject matter of the decision
in question is amenable to review by the courts rather than the source or
nature of the power that is being exercised.
This has led to decisions such as R
v Secretary of State ex parte Bentley [1993] 4 All ER 442 where a
Divisional Court held, in the exceptional circumstances of the case, that the
Home Secretary had given insufficient consideration to the grant of a
posthumous conditional pardon. More
recently the Privy Council departed from a line of its earlier decisions with
respect to the review of the exercise of the prerogative of mercy in capital
cases. In Lewis v Attorney-General of
Our Court of Appeal in Burt v
Governor-General of New Zealand (1992) 8 CRNZ 499 had earlier recognised
that in principle, there was no reason why the procedure followed in exercising
the prerogative of mercy should not be open to judicial review. In that case, however, it declined to take
such a step. The Court found that the
Royal prerogative appeared to operate as an efficient safety net and when
considered in the context of the other safeguards in the process, there was no
pressing reason made out for altering the Court’s approach to the
justiciability of the pardon power in that case.
The Court in Burt was not called on
to consider the situation with respect to a referral under section 406 Crimes Act
1961, but it is probable that the process is amenable to judicial scrutiny, at
least with respect to the observance of the principles of administrative law.
The Royal Prerogative of Mercy: A Review of New
Zealand Practice
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OVERSEAS MODELS
The above framework for considering applications for the Royal prerogative of mercy
in New Zealand has, historically, been similar to that of England and other
commonwealth countries. In these
jurisdictions the delegated or common law prerogative to pardon has also been
supplemented by a statutory scheme providing for reference by the Executive to
the Court to revisit a conviction or sentence, or to provide an opinion on an
aspect of the case to the Executive.
To assist the consideration of possible improvement to the current process for
considering cases where a miscarriage of justice may have occurred in
Applications for the exercise of the Royal prerogative of mercy are dealt with
by State jurisdictions in
In Victoria, the provisions of section 584 of the Crimes Act 1958 follow the
general pattern. The Department of
Justice receives approximately six to seven applications each year. The cases fall into three categories, with
applications alleging that a miscarriage of justice has occurred, seeking
commutation of sentence, or raising “special circumstances” (that may also
involve a miscarriage of justice). In
this latter group extra-judicial considerations may arise (such as inadmissible
evidence), or wider contextual factors which suggest that there has been a
miscarriage of justice, or that intervention is otherwise required.
A senior departmental lawyer assesses each case. If there are no grounds for possible
consideration, the application may be declined on advice from the
Department. If there is an arguable
case, the application is referred to either the Government Solicitor, or
occasionally, an independent lawyer for assessment and recommendation. If there appears to have been a miscarriage
of justice, the case will usually be referred to the Court under section 584(a)
of the Crimes Act.
The majority of applications seek the commutation of sentence on compassionate
grounds, as there is no statutory body to consider such cases. In cases involving the possibility of a
miscarriage of justice, independent inquiries are only rarely made.
·
a petition to the Governor, who may direct an inquiry be
held, or (through the Minister) refer the case to the Court of Criminal Appeal
(section 474C); or
·
an application to the Supreme Court requesting the Court to
order an inquiry, or to refer the matter to the Court of Criminal Appeal to be
dealt with as an appeal (section 474E).
In each case, a direction or reference can only be made if it appears that
there is a question as to the convicted person’s guilt, or to any mitigating
circumstances in the case, or to any part of the evidence in the case. The Governor, the Minister, or the Court may
refuse to consider an application if the matter has been dealt with in the
trial or appeal process, or previously considered under Part 13A, and if they
are satisfied that there are no special facts or special circumstances that
justify the taking of further action.
The procedure unique to
Canadian legislation relating to alleged miscarriage of justice cases followed
the traditional pattern. Section 690 of
the Criminal Code empowered the Canadian Minister of Justice to refer the case
of an applicant for the prerogative of mercy to a court of appeal for hearing,
or refer a question to the court. In
addition, the Minister had the power to direct a new trial, an authority that
in other jurisdictions was vested only in the Court.
In 1989, a Royal Commission recommended that provincial and federal Justice
ministers consider creating an independent mechanism to facilitate the
reinvestigation of alleged cases of wrongful conviction. However, a working group established to
examine the recommendation did not support the proposal and the ministers
responsible for criminal justice took the proposal no further.
A Department of Justice Review in 1993 led to the establishment of the Criminal
Conviction Review Group whose sole function was to investigate section 690
applications and report to the Minister of Justice. Criticism of the section 690 process,
however, later led to the Department of Justice publishing a consultation paper
in 1998, “Addressing Miscarriages of
Justice: Reform Possibilities for Section 690 of the Criminal Code”. Options such as the English Criminal Cases
Review Commission were discussed.
Following the consideration of submissions, the Minister of Justice
considered a number of options. The
legislative response, which was passed in October 2001 as an amendment to the
Criminal Code, repealed section 690 and inserted a new Part headed
“Applications for Ministerial Review – Miscarriages of Justice”.
The three remedies provided by the repealed section remain, but for the purpose
of any investigation relating to the application, however, the Minister, or the
Minister’s delegate is vested with powers similar to those of a commission of
inquiry.
In deciding whether to direct a new trial, or refer the case to a court of
appeal for hearing and determination, the Minister must be “satisfied that
there is a reasonable basis to conclude that a miscarriage of justice likely occurred.”[103] In reaching that conclusion, the Minister is
required to take account all relevant matters including:
·
Whether the application is supported by new matters of
significance that were not considered by the courts
·
The relevance and reliability of information that is
presented in connection with the application
·
The fact that the process is not a further appeal and any
remedy is an extraordinary remedy [104]
Details of the process for reviewing applications are prescribed by
regulations.
The number of applications for the prerogative of mercy in
For centuries in
An appeal against conviction in criminal cases became an accused’s right in the
early 20th century with the establishment of the Court of Criminal Appeal in
1907. This was due to the highly visible
miscarriages of justice that occurred in the Adolf Beck and George Edalji cases
and others.[105]
Despite the availability of appellate review, the Home Office continued to
handle hundreds of petitions for the exercise of the prerogative of mercy each
year. The Home Secretary had the power
to refer cases to the Court, but there were concerns with the effectiveness of
this process. These focused on the
process within the Home Office to consider applications and the narrow approach
of the Court of Criminal Appeal to the exercise of its power to order a new
trial.[106] The Court’s approach prompted ATH Smith to
comment, “The court’s own view of its constitutional role is that it exists to
prevent error rather than to prevent injustice.”[107]
In 1968, the British Section of the International Commission of Jurists
(“JUSTICE”) published a report [108]
in which it recommended a number of improvements to the existing process that
produced the advice to the Home Secretary.
JUSTICE considered alternatives, such as the Danish Court of Complaints,
a special court, which operated outside the machinery of the ordinary appeal
system to deal with miscarriages of justice.
However, it favoured a process of inquiry by an appointed commissioner
or commissioners free from formal rules of evidence and procedure, with the
commissioner reporting to the Home Secretary.
A series of highly publicised cases arising during the 1980’s in which a
miscarriage of justice occurred coupled with concerns about the efficacy of the
prerogative of mercy process led to the establishment of the Royal Commission
on Criminal Justice (the Runciman Commission) in 1991.
In its report to Parliament in 1993 [109],
the Commission recommended that the responsibility for reviewing allegations of
a miscarriage of justice be removed from the Home Secretary and transferred to
an independent authority to be established.
The most significant consideration that led to this recommendation was the Commission’s
conviction that existing arrangements were incompatible with constitutional
principle. It found that the role
assigned to the Home Secretary under the 1968 Act to refer cases to the Court
was inconsistent with the separation of powers as between the courts and the
executive. The “scrupulous” observance
of constitutional principle led to a reluctance on the part of the Home Office
to inquire deeply enough into the applications it received.
Effect was given to the Runciman Commission’s recommendation with the passage
of the Criminal Appeal Act 1995. This
Act established the Criminal Cases Review Commission, an independent public
body with 14 Commissioners and a staff of about 70. It has an annual budget of around 5.5m
pounds.
The statutory responsibilities of the Criminal Cases Review Commission are:
·
To review suspected miscarriages of justice
·
To refer a conviction, verdict, finding or sentence to the
appropriate court of appeal when the Commission considers there is a real
possibility it would not be upheld
·
To investigate and report to the Court of Appeal on any
matter referred to the Commission by the Court
·
To consider and report to the Secretary of State on any
matter referred to the Commission arising from consideration of whether or not
to recommend the exercise of the prerogative of mercy in relation to a
conviction
The Commission w