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On this site you'll find posts and pages from recent years. The site began as part of my public law practice after leaving Parliament in 2005. Accordingly it records my opinions, not necessarily those of Franks & Ogilvie of which I am a principal, or any client, or the National Party for which I contested the Wellington Central electorate in November 2008.

From the Wellington Writersí Walk:

“Itís true you canít live here by chance, you have to do and be, not simply watch or even describe. This is the city of action,the world headquarters of the verb”

– Lauris Edmond, from The Active Voice

Dudley killer name suppression and discharge without conviction

  • August 27th, 2014

The Solicitor General reports that there is no power to appeal against the bizarre result of the High Court's discharge of the Dudley killer without conviction.
 

When name suppression and discharge without conviction combine, the community is doubly insulted by the lawyers' sytem. The discharge without conviction officially says ‘nothing to see here, we'll keep no record that anything legally wrongful happened’. On its own, that is often a consequence of proper legal process – decisions not to charge,acquittals and innocence until conviction combine. .

But when name suppression is added we lose our normal freedom to form and act on our own views on the behaviour, and to remember it for future dealings with the offenders,  whether or not the high criminal standard of proof for exercise of the state's coercive power was reached..


The combination of discharge with name suppression, however, means that it could have been better for the Dudley family if the Police had simply declined to take any action. In that situation their freedom of expression would not have been trampled.
Because the name suppression survives the community can't now officially know who the culprits are, and take any apparent lack of remorse into account in their futures. Of course in their community, where it really matters at present, everyone already knows. But our judges have resolutely declined to consider such realities.

I have strong views about judges discharging without conviction – to me it is airbrushing history, deliberately depriving the community of information vital for healthy functioning of the social, employment and other deterrents that uphold good behaviour and deter bad ..
Our judges collectively ignore the fact that there will never be enough police, judges, prisons and social workers for officialdom to create a society in which people routinely prefer not to offend and the strong are not contemptuous of the weak. Shame and the other social results of offending are vital in all healthy cultures. Behaviour that is not unlawful but is nevertheless reprehensible, must attract its natural costs.
The bleeding hearts should be on our side in this. When the official justice system interferes with shame there is inevitable pressure to crank up ever more severe formal sanctions.

Name suppression after a discharge without conviction is judicial arrogance. It insults the victim’s family. It steals our rights to know, the purpose of freedom of expression. .It undermines the primary social mechanisms, which should be the first and inevitable outcome of wrong-doing. The criminal justice system should be the back-stop, not the first and only social response.

This is not to criticise the Solicitor General. It appears he was left with no power to appeal.

Competition to end parole

  • August 25th, 2014

ACT and the Conservatives are rmaking excellent criminal justice policy announcements. If both are in Parliament we might see an end to the cosy major party consensus that has fostered our high rates of serious violent and youth crime. 

Garth McVicar's announcement on parole is more straightforward than I had expected. Most criminals come up for parole at one third of their Judge-given sentence. Garth says:

"I have spent 13 years helping victims challenge a parole system that seems to have been designed to torment them…..

 “Victims are continually re-traumatized, the current system opens up old wounds and locks victims into the cycle of grief and ensures they cannot put the crime behind them.”

“The Conservative Party will overhaul the parole system so that a Judge given sentence means what it says, 9 years will mean 9 years. Life will mean Life. The only function of the parole board will be to apply release conditions and ensure they are enforced"

It seems that they would introduce the US Federal system introduced after 1996, when Bill Clinton reached across party lines and took the Republicans policy and ended federal parole. Instead, there is a period of mandatory supervision at the end of most sentences. 

Great! There is no evidence that parole works any better to reduce reoffending than supervision at the end of the judge-given sentence.

People worry that prison populations will explode. That has not been the inevitable experience elsewhere after parole has been cut back. Prison musters would likely drop after an initial rise while offenders worked out that a new sheriff had come to town.

Some attribute the long drop in crime rates in the US, for example, at least partially to the increased deterrence of sentencing certainty. There is a good research consensus that severity of sentencing has much less deterrent power than speed and certainty of detection, conviction and punishment. Ending criminal expectation of parole dramatically increases certainty, and judges could afford to reduce sentence lengths. 

But there is another reason why prison musters will not escalate nearly as much as some would theorise. Because much of the serious crime is committed by a relatively small population of career criminals, the change would  merely cancel for  those serious offenders, who accumulate records of hundreds of crimes, their brief parole excursions from prison to add to their tally. Instead they stay much longer where they cannot prey on fresh victims.

I would not keep the Parole Board as the Conservatives would.

Let  judges set the release supervision onditions at the time of sentencing, and allow them to be relaxed on application at release, or by the Prison Manager,. That would restore to prison management power to induce prisoner good behaviour. At the least  prison management should be able to remit up to 10% of a sentence, so that they have some carrots for good behaviour, as they did up till the dopey reforms of the 1980s.

That was when the failed experiment began, in the hope that if we were nice enough to criminals for long enough, they might be nice back.

Let's hope that ACT competes with similar policy, and that the Peters Party joins in too. 

More company secretaries, fewer lawyers?

  • August 25th, 2014

A well written UK promotion of the role of a company secretary reminds me that in our 1993 company law reformulation we lost the compulsion to have someone nominated to do the necessary.

The article summarises the contribution good company secretaries make. Experienced ones become the indispensable spider in the centre of the communication web within a company, holding corporate memory through successive CEO regimes.

I was convenor of the NZ Law Society Commercial and Business Law Committee around that time. I tried unsuccessfully to persuade my colleagues to urge retention of both company secretaries and the (non compulsory) standard form constitution examples that were then a feature of our company law.

I argued that they were both pragmaticly inspired reflections of experience. Assigning responsibilities to a Board is assigning it to a collective. Collectives are commonly problematic owners of property.  What is everybodies' business becomes nobody's business.

Few duties get performed unless someone specific is tasked with them, and it is often efficient to have a standing delegation of a range of recurring tasks to professional 'sweeper upper' with substantial clout in a company.

Why the Conservatives for Garth McVicar?

  • August 7th, 2014

I would understand Garth’s decision to accept nomination for the Conservatives (if Kiwiblog's report is correct)  though he could have had a more assured path to Parliament. 

After 13 years of dedicating his time, the time of his wife Anne, the cashflow from his farm, his enormous emotional resilience, and his ability to learn, almost exclusively to the cause of victims, he’s perhaps decided to go for broke. I know he’s been asked to stand for Parliament a number of times before . He’s agonised over it. But he’s never had anyone to take the leadership torch.

There have been people who’ve worked generously on funding, on policy, on the website, on the branch structure and membership issues, and on the exhausting task of helping victims that few see, especially the desperately bewildered and hurt families steered to him by the Police, by victim support people, by lawyers, and by earlier victims.  They’ve sent them to Garth because he’s been able to do what they cannot, say the things they dare not, give the victim families hope that their loss may not be entirely pointless, if the law that has allowed it can be changed.

And only Garth has pulled it all together. He’s inspired his volunteers, given them the courage to stand up before Select Committees, and to turn up to court.

But a year or so ago Ruth Money was drawn into a full-time role in the organisation. She has been juggling many of Garth’s roles, and obviously now he feels he can hand over.

Many will be puzzled by his choice of the Conservatives to run for. It does not surprise me. He is unabashedly conservative. In the criminal justice areas most important to him, he believes our grand-parents did a better job than us.

It is hard to disagree. The reoffending rate from our prisons was much lower than now. Most prisoners had 40 hours per week of useful work. Prison discipline was simple and much more arbitrary than now. Our victimisation rates were trivial compared with now. The most reliable figure of all to judge changes in crime rates, is the murder rate. New Zealand averaged 2 murders per year from 1920 to 1960. That included the years when over 100,000 men came back from years of killing and witnessing slaughter, when firearms were in most homes.  

And Garth is not much influenced by popular or media stereotypes or prejudices.  He would base his assessment of Colin Craig on meeting him, not how he is described by tribal opponents.  That willingness to look past elite consensus is why he had so much friendship and help from people who shared that ability, people who respected his abilities and achievements despite media demonization.

They included the  late Greg King, Winston Peters’ lawyer Brian Henry, Auckland Crown Prosecutor Simon (now Justice) Moore and many others. So I have to assume that he has looked at the Conservative’s policy suite, and decided that it would be the least problematic for him to hold his nose and support, as the unavoidable cost of going to Parliament to fight to complete the criminal justice reforms in which he has been so influential for so long.

Good luck Garth. You'll make the Party vote choice more difficult for many people.

Political advocacy may be charitable

  • August 6th, 2014

I look forward to a close reading of the Supreme Court decision released this afternoon, on the Greenpeace application for charitable status.

From the Scoop summary it appears that three out of five judges have decided to change the longstanding law, so that political advocacy no longer disqualifies a body from charitable status. The practical importance is that donors to charities may be entitled to tax rebates, and the charity is not subject to income tax.

I assume that the two dissenters did not think it appropriate for such a change to be made by judges, when Parliament has recently looked at the law governing charities, and could have modfied the tests. The summary indicates that they considered the change to be unjustifed on policy and principle grounds.

This decision will be welcome news to our client the Sensible Sentencing Trust, and other clients with altruistic activities and motives that are currently not favoured with charitable status for tax purposes.

7pm

I’ve now read the majority judgment. I’m not sure what to make of it. I suspect the majority judges think they’ve delivered a more conservative judgment than those who will have to apply it. That is despite clearly discrediting (with some reason) the longstanding bright line against charitable status for advocacy for law changes, and political activity. They explore section 5(3) of the Charities Act – that confirmed that advocacy ancillary to a recognised charitable purpose does not disqualify a trust. And they seem to say that political advocacy could be a charitable purpose on its own.

On the other hand they say they are not expanding the category of main purposes that are charitable. But they also encourage evolution of the common law by expanding charitable purposes by analogy to existing purposes.

I doubt whether even Greenpeace will be sure just what this decision will do for them, when the Dept of Internal Affairs chief excutive and the Charities Board apply it. I’m not sure why the Court did not effectively make the decision. Presumably it was because of restrictions in the way the issues came before the Court.

I think the chief executive of and the Board have room to confirm their rejection of Greenpeace.

Those decision-makers are unlikely to be grateful to the Court. It is just too hard to work out what the Court thinks they should do, though a robust confirmation that illegal activity cannot be charitable may be a steer.

Much of the judgment is consumed in saying what is wrong with the reasoning of the Court of Appeal. Each proposition is well supported with references and logic. But I do not know what it all adds up to. Possibly another reading will reveal a pattern that has eluded me in the detailed analysis.

There is worrying encouragement for those applying the law to apply their own views of what will benefit the public, and what will not, though other words emphasize that benefit to the public is not sufficient.

I wish Courts were given to drawing decision tree diagrams to guide those who must apply the law. This judgment might have been more readily understood if they’d drawn one, then worked backwards to describe its decision points, and why they are as they are. .

I doubt that they’ve opened a flood-gate. A more likely analogy might be that they’ve told the guys on the drafting gate to forget the old instruction to send anything with black spot to the works. The new instruction may be “a bit of black spot could be OK if the sheep looks pretty good to you in other respects”.

A Wellington bookshop for book-burners

  • August 6th, 2014

A significant part of Wellington's literary set have a poisonous consensus against views they do not favour. In effect they define their tribe by what it agrees to hate. What they hate is drearily predictable, including road improvements (particularly fly-overs), Israel, and any challengers to their clerical view of what is 'appropriate' and 'inappropriate'.Thomas Sowell refers to this class as the anointed.  Their world is divided into the righteous and the unrighteous.

Our Prime MInister is among the un-righteous, obviously. Making a fortune is irredeemable, especially out of investment banking, then being overwhelminly popular with voters who have to attract voluntary customers for a living.

Accordingly Unity book-shop has attempted to minimise its sales of John Roughan's biography of John Key.  Since it was published it has been on the floor behind other stands whenever I or a friend has checked. Much of the time it was face down.

John Key Biography at Unity

I tackled a person who appeared to be an owner or manager.  He said it was his staff who put it there, and he couldn't stop them from doing it. Each time he tried to turn it face side up or give it more prominence they would return it to where people would have to ask for it expressly.

For years I've deliberately restricted my book-buying on Kindle and Amazon, to do my bit to maintain enough local demand to save our book-shops.

In future Unity will see my custom only when there is no alternative.

‘Creatives’ same the world over – hoist on their petard of economic ignorance

  • July 24th, 2014

Remember Actors' Equity's hatred of National's deal to restore freedom to contract, to retain Hobbit filming here? Robyn Malcolm and other stooges for Aussie Union officials denied they could price themselves out of work.

The law change that was part of the deal was deplorable in terms of constitutional/rule of law principles because it should have been of general application, not specific to a few film contractor/employees. But the beneficial purposes of the change were indisputable, except by the ignoramuses of the reactionary left.

Blogger Patrick Sullivan draws attention to a report of the French Federation of the Cinema Industry ('FICAM") which offers some evidence of what might have happened if Malcolm and Co had won.

He explains

" FICAM also cited the new rules of what is called the "collective agreement" which regulated the industry practices and created minimum wages in several sectors, including technicians such as electricians and camera operators, costume and wardrobe workers, and assistant directors.

"After a decade of debate, the agreement was signed by trade unions and the Association of Independent Producers (API), which represents major production companies Gaumont, MK2, Pathe and UGC in France, in October 2012 and went into effect Jan. 1, 2013. At the time, many directors opposed the measures saying that the new wages and stipulations regarding overtime and night shoots would jeopardize low-budget films."

FICAM just announced that French movie production is down by 24% since the new agreement has been operational.

Another reason why name suppression is bad

  • July 21st, 2014

My law firm partner Nikki points out news stories a month or so back about a guy in NZ who has qualified with a PhD after serving a lengthy sentence

She sent me a link to a similar article on a young UK woman who despite a long criminal history has qualified with a first class degree in policing, investigation and criminology. She plans to study a Master's degree at the London School of Economics and then use her qualifications and own life experience to work with troubled youth.
 

As Nikki says, tales of redemption are good for the soul. They provide a flicker of light amidst all the depressing dark stuff.

However, if either of these people had been given name suppression, or some other right to have the prior offending concealed, there would be no tale to tell. Truth is, they'd just be another couple of graduates. It's the fact that they have serious criminal history that makes their stories so significant and inspirational..

Incentive pay for MPs

  • July 14th, 2014

The moot for the New Zealand Initiative's youth debate semi-final this year in Wellington is a good one -

"Should New Zealand tie MPs' and Ministers' salaries to a multiple of the average national income?"

When the Remuneration Authority was asking MPs about reform of the system 10 years ago, I urged that parties be given a material amount they could distribute among their members according to their pre-Parliament incomes, to do three things:

  • reduce the income cut involved in going to Parliament for people for whom there is much more to lose, and
  • reduce the overpayment of the kind or people who would never be thought useful enough outside Parliament to get anywhere near their Parliamentary income, so they don't cling quite so desperately to their places; and
  • have the supplement reduce each year after entry to Parliament, to encourage turnover of people who have not progressed.

I also suggested a trailing commission, to induce longer term thinking among MPs. Exec incentive schemes that fail to add a trailing element or to defer vesting encourage manipulation of reporting and incentivise short term results. In politics that there is already more than enough incentive for false reporting and short-temism in the 3 year electoral cycle.

Accordingly MPs should have a material part of their remuneration deferred each year. If the MP demands immediate payment is should be substantially discounted. The deferred amount (say half) might be paid out say five years later, multiplied by 2 times or 5 times the GDP or average income growth in the five years. If it shifted MPs horizons, it would be money incredibly well spent even if they tripled or quadrupled their incomes.

For an even longer perspective, simply make the deferral period longer.

 

On shame – Hinch, Korotangi Paki, Kim Workman

  • July 11th, 2014

On Sunday afternoon I'll be in Auckland to chair a public discussion of  the secrecy that justice insiders defend so tenaciously. Derryn Hinch is the main speaker. He's endured prison to stand up for open courts and freedom of speech.

Doing my homework, I've been reminded of the intellectual blindness engendered by the beliefs of well meaning people.  Kim Workman is a good man. He writes thoughtfully on his blog "Smart on Crime". The post prompted by the absurd discharge of the Maori prince is worth reading by anyone who needs to understand the criminal justice establishment. They need to feel morally superior (compassion is their claim) over the rest of us, but they acknowledge the need also for research on their side.

So how do they end up so far from reality? This well written piece shows us. The reasoning is respectable so far as it goes, but it stops well before it gets anywhere near the main issues. It misses the same point as is missed by the justice insiders generally.

It measures everything according to its potential to redeem the offender. Redemption is worth trying if it does not prejudice more necessary purposes. But the fate of particular offenders is trivial, when the proper measure of a justice system, indeed any social mechanism for inculcating and upholding norm observance, is the extent of offending overall. Recidivism rates may affect offending rates, but they are much less important than rates of recruitment to offending.

Governments have few research proven tools to reliably reform hardened offenders. Once a young person establishes a pattern they are likely to keep offending until they grow out of it (now in the early forties). They offend whenever they think the price will be less than the rewards they get (including the psychic rewards of causing fear).

So crime rates are determined largely by recruitment to offender status, not 'cure rates' for established offenders.

Almost all cultures rely heavily on reputation mechanisms to discourage the establishment of such patterns. They commonly involve exacting a price over the long term from individuals, their families, and communities that harbour them. They also commonly provide well recognised paths to discharge the shame burden, to demonstrate remorse. As Kim Workman acknowledges, Maori norm enforcement relied heavily on whakaama – shame. What he does not go on to acknowledge was the extent to which shame mechanisms need practical impacts and 'stigmatization'. They depend on tangible consequences to shameful behaviour. Whakaama (shame) becomes irrelevant and toothless when it is separated from the consequences, when the forgiveness carrots are poured out in sackloads without any sticks of  ritual humiliation, group responsibility and formulaic depredaton (muru and utu)..

But well meaning 'sickly white liberals' (in Winston Peters' memorable words) have gutted our law of its links with reputation sanctions. They've left the law struggling ineffectually to rely on formal punishments alone.

So Mr Workman, when you deplore the powerful trend toward more severity in punishments, when you rail against the lack of recognition of the truth that speed and certainty of consequence are much more important than severity in deterrence, take a look at your own responsibility. You've helped eliminate from our law the most powerful and speedy social sanctions of all at the critical time (in application to young people).

Rethinking Justice applauds the secrecy of our youth courts. You defend our disgraceful name suppression law. You supported the Clean Slate law. And in your blog you whine about the ordinary peoples' rejection of the expert demand that criminal justice policy be left to experts. You exemplify the establishment's comprehensive rejection of the reputation based natural social sanctions.

You genuinely believe you have research and reason on your side, but it is fatally limited. Your post on Paki takes the shame analysis no further than the effect of shame on rehabilitation prospects. Shame may inhibit rehabilitation for offenders outside a community with high social cohesion (i.e. where the social sanctions are presumably severe, and scope for collective redemptive support). But where is the consciousness of its importance to offending rates?

Justice insiders have an unshakeable conviction that the system is all about them and the offender. And that gets nicely boiled down to focus on the superiority of the insider's compassion and morality. So, for example, you judge prison effectiveness by the re-offending rate of released prisoners. Prison does not rehabilitate. So what? That is not news. It never has. Spontaneous rehabilitation occurs at much the same rates almost irrespective of the programmes in prisons, as you know.

Rehabilitation is only the least important and the least likely to be achieved of the four objectives of imprisonment. I suspect much the same for shame as a sanction. Some will not re-offend having tasted the price of wrongdoing. Some will be undeterred. The important thing is that we are unlikely to know in advance, and even if we thought we did know, if offends the need for justice to apply equally to all, for some to get 'treatment' and others punishment.

The far more substantial reasons for punishment are to deter others, to protect others by incapacitating offenders from further predation, and to deliver retributive justice to the victims. Those factors are all about unknown potential victims and actual victims, and potential offenders.

But justice insiders dismiss the interests of innnocent others as immaterial.

Naming and shaming is important for all those third party purposes. What Mr Workman labels "stigmatisation'  is important in deterrence. The key insight of James Q Wilson, the philosopher who explained why Broken Windows policies work, was that the system must make plain what conduct is actually costly. Any law that is not enforced undemines respect for law generally. What is tolerated without high cost is perceived as permissible. Notional law is irrelevant compared to the actuality of 'what goes on (is acceptable) around here'. Like it or not, we all need to see stigmatisation in action to know the difference between official pretenses about what is acceptable and the actuality of what behaviour 'works' and what does not.

Put another way, openness about genuine punishment has a deterrent effect on those who might be tempted to think that offending is essentially costless, or at least that the cost will be less than the satisfaction Openness protects others by allowing people to know who they should take precautions with, and it involves all who know the offenders in monitoring them; Openness and deliberate shaming may be important to the recovery of victims. They need to know that the world is on their side.

Most notions of justice in most cultures affirm the need to balance wrongdoing. We have a deep sense that wrongdoers should not be permitted to be in a better position than their victims at the end of society's process. In east Asian culture that is given a theological explanation, the restoration of harmony in the heavens, by making sure that wrongdoing is balanced by harm to the wrongdoer. In our history it was more simply expressed, there must be a deterrent price paid for each crime that satisfies the legitimate and vitally important social need to see retributive justice done, for victims.

As purposes of punishment, (including reputation based informal consequences) those other reasons are more important than the redemption of individual offenders. That is particularly problematic for Mr Workman. He wants therapeutic processes to have priority despite practical knowledge that there are many offenders who will never be redeemed, and there is no reliable way to know in advance who will be redeemed.  His preferred therapies will therefore always be discredited afer application. Experience of failed compassion erodes trust in the law, and authority generally. It impels us toward self-help mechanisms, even up to vigilante action.

Despite the establishment's self congratulation over its redemptive intentions, they are primarily responsible for the increasingly punitive trend of legislative change. They have forfeited trust that the establishment is committed to law that works, that cheats won't prosper, that honesty pays.

Mr Workman will be ognored for whittering for so long as he tries to persuade us by claims about what is best for the offenders and their rehabilitation, without understanding that we are barely interested in offenders, their feelings, their families' feelings.

Nor are we interested in the elite's wish to look merciful. We are interested in;

  • the marginal offender who needs to be dissuaded, and
  • the next victim who need not be a victim, and
  • upholding the victims' right to see the price exacted, by a state and a community on the victim's side, not the offenders'.

Smart on Crime's theories have had their time, been tried and found wanting. As well as rejecting reputation mechanisms you've rejected punishment for its own sake as a proper objective of justice. But we are a democracy, and the people do not reject punishment as a purpose for a justice system that expropriates the victim's right to retribution.

We do not want to be left where there is no fear muscular shame at the entry levels of criminal life. We are realistic. The law cannot work with only formal coercion (custody and fines) to do the heavy lifting.  And you want to replace even what is left of shame and stigmatisation with therapeutic treatments. They do not fulfil the main purposes of punishment. So your establishment has forfeited the entitlement to respect from the people that is both the requirement and the justification for an establishment to lead.

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