To me the most revealing of the Herald's excellent 'Judging the Judges' series several weeks ago was the report of a sad interview with Chief High Court Judge Helen Winkelmann.
Followed as it was by panicky criticisms of the then upcoming launch of the SST website 'Judge the Judges', it highlights the capture of justice by its insiders. See, for example the unconscious conviction that the justice system is all about them in the Bar Association's assumption that the site would convey anonymous irresponsible views that are "ill-considered, totally unnecessary and likely to give rise to illegality as contempt of court".
How professional is that – to assume criminal offending without the slightest knowledge of how the site will work? Why should it be any more problematic than any other reporting of opinions of the work of the courts.
The comment drips with the contempt for open justice, freedom of speech and the people – "The website is likely to be little more than an online version of talk-back radio,". And your point is…?
Though Winkelmann J may not intend it a species of the same contempt seems to leak out of her comments about the SST and the views of victims, though more decorously.
"If the test of the sentence is whether the victims are happy with it, well, usually they are not going to be happy with it because the criminal justice system is not foremost a system for therapy for victims. It is a system in which they have a legitimate and necessary interest.
"But its primary function is to deal with that offender on behalf of the whole of society and impose a sentence on that offender which is – if they are convicted, if they are the offender – consistent with the principles and purposes of the Sentencing Act."
Justice Winkelmann had previously spoken of "some voices" which spoke louder than others in the coverage of issues before the court.
Asked about the Sensible Sentencing Trust, she said: "Their views achieve a great deal of profile in New Zealand. It is to state no more than a fact that there is often an absence of any differing view or correcting view.
"One thing I would say is long ago we as a society, as did every Western society, settled on a system of justice that said it was not going to be the victim who said what the sentence was.
"It was going to be people who could look across a range of offences and a range of sentences and apply the law and come to a sentence which is imposed on behalf of the whole of the society. That is the appropriate criminal justice system."
The Judge reminds me of a decent Catholic cardinal. Over the past two decades there have been many, defending their institution and throwing behind it all their genuine personal integrity and good intentions. They've tried it all. Media training, releases reminding us of the Church's good works with the poor, the comfort they've brought and continue to bring to the afflicted, strong rebuttals, earnest assurances of open-mindedeness to improvement. But none of it works. There have been just too many evidences of priestly hypocrisy and dislike of their flock's impertinence in judging them.
The institution continues to exercise the power of historical momentum and vast inertia, but trust in integrity, the most important strength of all, has departed. It will not return for so long as it appears that they are trying still to defend the indefensible, to protect some amongst them who deserve only contempt, for so long ast they think they can finesse their way through embarrassments without real change, for so long as they hope that dramatic gestures and the sacrifice of a few sacred cows will show the depth and genuiness of their acceptance of past error. Until their vital strength returns they will continue to find every error magnified, and their virtues ignored by all except their most pathetically obedient adherents .
The most powerful institutions can bank on a respect that is forgiving of inevitable mistakes, because they are not thought to be indicative. Mistakes are seen as aberrations. Their supporters show fobearance and loyalty in adversity.
In my opinion the courts are well down the tracks to having lost it. To recover they have to show they are committeed to genuine transformation. Above all they have to re-establish a conviction that Court officers serve others primarily, and not themselves first.
Courts exhibit too many facets that can be explained only by the lawyers and the judges putting themselves first and justice and the community second. It will need more than a new willingness to comment publicly, more than "consumer education" more than "rebranding" to restore the respect the institution should deserve.
See here and here for recent instances that prompt demands for a genuine re-committment to prompt, equal and open justice and the people it serves ahead of the interests of the lawyers and the judges. Other reforms would include:
a) refusing to remain complicit in the parole system that makes every announced prison sentence misleading and deceptive;
b) refusing to remain complicit in concurrent sentencing, that is not only deceitful, but tells the victims of every offence other than the worst that their loss and humiliation does not matter;
c) sitting 24 hours per day if necessary and running timetables to ensure that criminal trials are over and the offender sentenced within the few months that was normal until several decades ago;
d) ending the practice of making timetables suit counsel's availablity, and instead making counsel organise substitutes or otherwise stick to pre-determined schedules;
e) ending name suppression and discharges without conviction that subvert the public's right to know who are criminals and who are not.