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Stephen Franks -Transparent Justice

Transparent Justice: restoring openness in our courts

Monday 28 Feb 2005

Stephen Franks - Speeches - Crime & Justice

Speech notes from launch of ACT's focus on transparent justice; Crown Plaza, Albert St, Auckland; 7am, Monday, 28 February 2005.

Last week the country was again scandalised by a name suppression case. As you know we had already planned to launch our policy to reclaim our inheritance of genuinely open justice.

Assistance from Judge Recordon and the All Black who had admitted assaulting his pregnant wife was not part of our detailed planning.

Nevertheless it is a perfect illustration of the attitude from the criminal justice establishment that has turned New Zealand into a demonstration case of what is wrong with the Left's approach to justice.

It has given us among the highest violent crime rates in the Western world.

It has given us among the highest recidivism rates.

It has given us among the highest imprisonment rates.

It is getting us some of the longest sentences, at least for headline crimes.

It has given us a deep mistrust of what we are told about crime and criminals by the anointed in the justice establishment.


· Fifty-seven percent of farmers say they would call a neighbour instead of the police to respond to an emergency, and when

· Corrections staff are in despair over where they can place released serious offenders, because no community trusts parole supervision, and when

· Every prison building project is bitterly opposed, yet in other countries communities bid for them because of the employment, and when

· A sentence of "community work" deserves the derisive Tui ad response of "Yeah right,

the essential trust in the law has gone. That trust alone can make a few thousand police become the long arm of the law which ensures that crime does not pay.

Though much needs to be done the task is essentially simple. There is not much mystery about what works in deterring crime.

It is certainty. Increasing the certainty of detection, of conviction, and of a price to be paid that makes the crime not worthwhile.

Our law has been robbed of certainty by judges who think they are case therapists, instead of trustees, guardians and judges administering a law that promises predictable certain outcomes for each criminal act. Every law change of the last 30 years has encouraged judges to think in this way. They have been told to individualise justice, to fit outcomes to the criminal and his `criminological needs", and not the crime.

We have our Chief Justice agonising over recidivism rates and seeing them as the measure of success or failure. That is the measure of how far astray the system has gone.

She should have been measuring success or failure by the crime rate. Why was she not looking with embarrassment, if not shame, at the dramatic reductions in crime rates across the board in the United States, for example, and wondering why our serious youth crime is climbing while theirs has fallen?

They haven't got on top of violence on television. There are still drugs freely circulating. Race tensions remain. Immigrant communities are bursting. All the usual excuses for high crime rates remain and only one thing has substantially changed.

It is the certainty of consequence for crime. President Clinton's reforms substantially reduced the room for judges to tailor outcomes to the criminal, instead of to the crime.

Our crime rates are a self-inflicted wound. We now know criminals are gamblers with high self-esteem. They back themselves to get the better of society, if society is a sucker. So why should we be surprised when every signal says nothing is certain about the system.

· When it says that police are told to give second and third chances.

· When there is a chance that suppression by some sucker judge will even ensure you need not be ashamed about conviction,

· When the rules of the lawyer game mean you may not even have to answer questions in court,

· When most judges' sentences given in open court are automatically halved, and the rest can be cut to a third by parole board functionaries operating in secret,

· When the Court records your conviction and sentence in open court but if nobody outside happens to be there at the time, that record will never again be available to the public generally.

ACT will transform criminal justice. We believe New Zealanders can, and will, be once again among the safest, most trusting, and open hearted people in the world.

We will do it by restoring certainty to the law. Zero tolerance was the description of the sentencing policy last election. This year it will be a comprehensive programme for certainty. A major part of that will be changing the perception that the law is not what it says, and courts do not dispense the law.

That does not need sweeping changes in all our criminal law, rules and procedures. But it does need enough change to persuade judges, lawyers, and most importantly the criminals, that the core criminal law in our democracy belongs to ordinary people, not just the justice establishment, that the law means what it says, and that it will be enforced.

Much of the change will involve rolling back recent distortions introduced as part of a failed thirty-year experiment in criminal centred justice. Included are the changes that have made a sham of our proud tradition of justice being seen to be done in open courts, where proceedings and results were freely reported and recorded.

Sickly sentimentality that masquerades as compassion is used to deny New Zealanders information. So-called privacy enables the justice establishment to keep the truth to themselves, stopping independent checking of the facts about offending, parole and recidivism. Name suppression removes from ordinary people the choice whether to forgive and overlook, or to remain wary. ACT believes that suppression of criminal records is both unnecessary and wrong.

Fully informed New Zealanders can be trusted to honour the rehabilitation of a deserving offender who has stayed straight.

Neither the Courts nor any politician or official should continue to have power to damage confidence in equal justice by suppressing names and criminal records.

Equality before the law?

People no longer believe the proud boast of justice that it treats all as equal before the law, without fear or favour according to status. Name suppression for powerful or high-profile people says that judges are "respecters of persons".

The insiders know but don't let the ordinary people!

When Labour took office our media was furious that they could not publish the name of the rich American who bought exemption from New Zealand drug law. His name was freely available on the internet. The most recent case involves an All Black. In between is a long list of outrages. Despite claims that name suppression is to protect the prospects of offenders, in most cases in this small community, those with the most influence are likely to know anyway. The suppression power flatters judges, and allows false public reputations to be preserved, but there is no evidence that it is necessary, or achieves better outcomes for the offenders concerned.

The precedent is bad

When out of control thugs in Waitara threatened the family of the policeman who shot Mr Wallace, both police and politicians reached for name suppression as a remedy. They should have instead vowed to regain authority for the law, so that criminal families would be the ones in fear if threats were flying, not the law abiding. In most cases an officer in that position would be known locally anyway, unless suppression is accompanied by new rules allowing routinely masked police.

Suppression helps offenders to find innocent new victims.

Lloyd McIntosh, Barry Ryder and other convicted paedophiles have been unmasked after further offending. If their communities had known about them, they would have been left with fewer tempting opportunities. Lloyd McIntosh was publicly identified only after TV3 News had the courage to do what the wider media would not

Suppression stops the people knowing the truth about our disastrous criminal justice system

William Johannson, was convicted for his second killing in eight years, but we'll never know most of his record because it was effectively sealed for the offences before age 17. We can't find out how many times the country's worst burglary family has been granted parole, how many times they breached parole, and how many offences would have been prevented if they had simply served their court given sentences.

Suppression tars whole groups

In the Taradale broomstick boys case an innocent family had to issue a statement clearing their son because the guilty parties had name suppression.

In all these cases the law has instructed the anointed of the justice system, the judges, lawyers and the corrections officials to ensure that the people do not know. The claim for concern about the individual denies the rest of us freedom of speech.

Suppression powers entice judges away from the rule of law into case therapy.

The traditional rule of law assumed that judges were there to apply rules and principles so that people could know in advance, irrespective of their status, the legal consequences of their actions. Now the judges think of themselves as punishing offenders, instead of crimes. They appear driven by their feelings about the fate of individual offenders, instead of by a passion for upholding the certainty and the equality of the law.

As the Chief Justice's recent speech against tough penalties showed, flog themselves over the recidivism rate, instead of the crime rate. With name suppression, and the power to discharge without conviction, judges can usurp the community's right to decide whether to forgive and forget.

Suppression forces use of tougher penalties, by eliminating shame

Societies and cultures rely for inspiration to do well, and to do good, on the human need to be respected. Concern about reputation, whether personal, family, tribe, school or other group underpins communities' sanctions for offending. It is called shame. For Maori, shame or whakamaa was essential for a healthy society. It is hard to think of a culture that did not agree.

Nevertheless, the Labour theorists who have been experimenting on our criminal justice system for the last 30 years don't believe that. They believe criminals can't help themselves, that they are victims of the class struggle, or not enough welfare. They believe that if we are only nice enough to criminals for long enough, some day they will decide to be nice back.

So they have tried to eliminate shame as a deterrent. Name suppression, secret youth justice, privacy laws, the Clean Slate Act, all set out to ensure that criminals need not worry about their self-esteem.

The results are predictable. A self-inflicted, ballooning serious crime rate. Without natural social sanctions like shame and concern about the practical effects of bad reputation, we have continual pressure for substitute sanctions, such as increased sentences and bureaucratic "intervention" or supervision.

New Zealand's youth offending record shows that young people do draw obvious conclusions. Anxiety to shelter entry level offenders from their own bad reputations tells them that despite what most people might say, apprenticeship to a criminal lifestyle isn't serious. The message is that criminal law doesn't really mean what it says. They get that message at a stage of life when social sanctions and pressures are most vital, and should have greatest influence. Secrecy in the youth justice system tells young offenders and their families "don't worry about shame or reputation".

Suppression of criminal records makes open trials a sham

The law carefully preserves the fiction that justice is open by requiring judges to deliver sentences, giving reasons, in open court. They know it is a charade. Journalists, the people's representatives to see justice being done, can cover only a fraction of cases. Then the shutters fall. The actual sentence is determined by decisions of Ministerial parole functionaries operating in secret. Criminals' alleged privacy rights excuse the state's refusal to allow access after the trial to the official records of convictions and sentences. Some victims may be told when a criminal is paroled, but the people generally are not permitted to know.

Suppression expropriates the community's right to forgive

Officials reported that the Clean Slate Act would allow more than 500,000 people to deny their past. The justification was that they needed suppression to avoid unjustified discrimination. None of those half million established that a vengeful and unforgiving community was unfairly suppressing their life chances. Plainly most have lived down their pasts and New Zealanders are keen to forgive and forget. Suppression is the state saying, "in case you wouldn't forgive, we will ensure you don't know".

Suppression aids stereotyping

People will not meekly accept the state's decree that a record is irrelevant. When they have to choose among people, for example among job applicants they will fall back on the next best guess - stereotyping. Groups, like young Maori males, thought more likely to offend will suffer when a genuine clean record or a record of minor offending, can not be distinguished from the false claim of cleanliness from a more worrying offender.

Suppression is a cover up for failure

Freedom of speech is not only a value, it persuades us to behave decently - if only to protect our reputation. Widespread suspicion, including from system insiders, about the poor quality of justice in the Family Court will not end while there is no routine reporting.

The government has made it impossible to compare New Zealand's crime rates internationally. After initially participating in the international crime victimisation surveys conducted for 17 countries by the Dutch government, Labour declined to allow the 2001 survey in New Zealand's to the internationally comparable. Mr Goff's explanation was that it would have cost $80,000 more. The local product cost around around $1 million.

Our values are in conflict

The sincere reformers who repealed severe punishment laws also passed the Official Information Act. They believed fervently that sunlight was the best disinfectant. Instead the Privacy Act pretends that reputation is a personal privilege. Clean slate legislation can mean a $10000 fine for asking about, knowing and telling the truth about a criminal.

Hiding witnesses says we've lost

Nothing will produce gang rule, police frustration or even corruption (and public cynicism about whether crime pays) more quickly than witnesses suffering for helping to convict criminals. And if witnesses can be intimidated Judges and the Police are next. Labour has responded by providing schemes for witnesses to hide in court, and for moving people under protection schemes. The penalties for perversion of justice should instead ensure that it is never worthwhile. We must restore that conviction among the criminal community, and among any police tempted to perjure themselves, whatever their motives.


ACT will not apologise for expecting shame, and remorse. They should regain their places as express objectives of justice. They should be prerequisites for forgiveness by victims and mercy from courts. Participants in restorative justice look for them. Shame and remorse from the criminal and shame from the criminal's family are the first instalments of the price for crime. Formal punishments are supplements.

Crime must not pay socially, financially or in any other way. And when communities have full information about offending, offenders who turn their lives around will get full credit for that. Forgiving is only genuine when people know what they are forgetting.

ACT will not permit suppression of the truth from our courts. ACT stands for transparent, open justice.


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