In light of comments by politicians that the criminal justice system “does respond to the government of the day, and the signals they’ve sent, without a doubt”, and that politicians will “send much stronger signals to the judiciary around [sentences]”, the Chief Justice has issued the following statement:
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The independence of the New Zealand judiciary is the bedrock of our constitution. The judiciary does not and will not respond to directions from the executive. Indeed, if there is one thing that my time as Chief Justice these last nine months has confirmed to me it is that the judiciary is almost impossible to give any sort of direction to.
The judiciary will continue to faithfully apply legislation enacted by Parliament. It is Parliament, not the executive, that can set guidelines for sentencing policy. That is primarily through the means of the Sentencing Act 2002 which, of course may be amended by Parliament to reflect the policy objectives of the government of the day.
A good example of that is the three strikes provisions. Since Parliament enacted the three strikes sentencing policy, the courts have followed it to the letter. It just so happens that, due to misprints in judicial copies of the Sentencing Act, the letters that record the manifest injustice exceptions have been bolded, highlighted and typed in size 48 font.
The independence of the judiciary can also act as a check on the conscience of the executive. It is not for the judiciary to express an opinion on whether a ban on prisoner voting is a “good idea” or a “bad idea”. It is for the judiciary to decide whether the executive and Parliament have met the standards those institutions chose to set for themselves through the New Zealand Bill of Rights Act 1990, then throw as much shade as it can over 150 paragraphs.
Sentencing is an exercise that requires the principled exercise of discretion. Legislative measures that restrict that discretion risk injustice in individual cases where judges are prevented from crafting a sentence that fits the circumstances of the case.
As for the idea of “stronger signals”, it’s cute that you think that, but the executive tends to send a rather singular “signal”. We get it: you think sentences should be longer. In the absence of any other constructive input it has fallen to the judiciary to reform sentencing policy on methamphetamine to focus on rehabilitation, recognise the impact of young persons brain development on offending, develop principles about the effect of mental illness on sentencing, craft systemic deprivation discounts that begin to grapple with the effect of colonisation, expand rangatahi courts, and more. And all of that without the help of signals on any of that. We are doing more to accomplish a reduction in reoffending than any soundbite on Checkpoint involving a ham radio metaphor.
It is a shocking indictment on this country when the judiciary is the most progressive of the three branches of government. The finest traditions of the common law system require judges to be port-soaked reactionaries, lamenting the demise of corporal punishment and compulsory national service. We aren’t thrilled that it falls to us to drag sentencing policy kicking and screaming into the 21st century, but we’ll do it if we have to.
If this signal isn’t strong enough, I’m happy to repeat myself.
PS: “Strike Force Raptor” is what we call the High Court commercial panel so you’ll have to come up with another name.
Strictly obiter 