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July 29, 2013 | by  | in Features Homepage | [ssba]

Judging the Judges

In their role as the consciences of our society, we charge our judges with huge responsibility when it comes to making decisions about right and wrong. Should we be taking responsibility to make sure justice is being served?

For a long time now, judges have had it pretty good in New Zealand. Protected in their decision-making by a number of laws and conventions designed to uphold the principles of judicial independence, the judiciary has long been considered the most trusted branch of government.

But the mood is shifting. The outcomes of recent high-profile criminal trials, like that of Ewen McDonald, have left victims with a bitter taste in their mouths. Everyone has an opinion about how justice should be served in New Zealand, and the voices of those who think the judges have got it all wrong just keep getting louder.

Newspaper headlines decry ‘travesties of justice’; callers to talkback radio bemoan the plight of victims, and little by little, lobby groups like the Sensible Sentencing Trust build a bolder case in their campaign for harsher sentences, stricter bail conditions, and a more accountable judiciary.

Picking up on this national mood, earlier this year the New Zealand Herald ran a week-long investigative series on the topic of judicial accountability, culminating in an app that allowed readers to ‘Be The Judge’, and choose their own sentences based on the facts of real cases. While the results of readers’ sentencing had absolutely no bearing on the severity of the decisions handed out in our nation’s courts, the interactive feature begged the question: should individuals have more of a say in what justice looks like? Do our judges need to be judged?


As any 100-level Politics or Law student will be able to tell you, an independent judiciary has long been regarded as an essential element of any successful democracy. In order to do justice, so the theory goes, judges must be able to operate as separately as possible from the other branches of government, so as to avoid political influence and to maintain public confidence in the justice system.

An independent judiciary, however, does not mean one that is immune from accountability. As history has taught us, unchecked power can be a dangerous thing: “It is a well-recognised democratic principle that no branch of government should have power without accountability. Judges should be accountable for their decisions,” says Ruth Money, National Spokesperson for the Sensible Sentencing Trust. Dr Yvette Tinsley, Associate Professor of Law at Victoria University, agrees that it is important that judges, just like any professionals, are subject to some description of accountability for their decisions. “We all must have some measure of accountability in our professional lives, no matter what our profession, and judges should not be exempt from that.” She points to a number of checks already in place to ensure that the judiciary is accountable, such as the opportunity to appeal decisions to higher courts, and accountability to individuals like the Chief judges of the District and High Courts and the independent Judicial Conduct Commissioner. On an even more basic level, for every decision a judge makes, they are required to produce a written, reasoned judgment outlining their decision—which is in turn subject to scrutiny by the media, academics and the public.

According to the Sensible Sentencing Trust, these measures aren’t enough. In May, the Trust launched their website Judge the Judges, with the aim of educating the public and increasing support for a more transparent and accountable judiciary. “Ultimately, we want judges to make decisions that put victims first, with offenders’ ‘rights’ well down the list of considerations,” reads the site’s mission statement. Money says there are a number of ways in which accountability could be improved, including recertification for judges, mandatory professional development, and reviews of decisions that result in death.

The site also purports to increase transparency. As Money explains, gaining access to the sentencing notes judges rely on to make their decisions can take a long time, which limits the transparency of the judicial process. The Trust supports the idea of developing an online system where notes can be easily accessed; in the interim, “[Judge the Judges] will educate the public by providing case summaries we have been able to access so they can understand the sentencing process in a measured and informed way.” Visitors to the site are invited to view the details of various high-profile criminal cases and decide for themselves whether the “hands the judges have dealt” are fair. Featuring design reminiscent of a dealer’s table in a casino, Judge the Judges names and shames the judges or ‘Jokers’ who offer low sentences, while praising the ‘Aces’ of the judiciary who dished out harsher sentences.

While Money says that the site is intended first and foremost to “provoke thought and reflection”, its approach has been slammed by politicians, academics, and legal professionals, who say that it will do nothing to improve the system. “Targeting individual judges who cannot answer for themselves will not create any sense of judicial accountability… targeting an individual judge could only have the effect of intimidating that judge, putting that judge under pressure and making that judge’s life difficult,” Crown Solicitor Simon Moore QC told Radio New Zealand. By simplifying and sensationalising the facts of well-known murder cases, the site is unlikely to assist individuals in developing “measured and informed” opinions. Tinsley describes measures such as Judge the Judges as “rather blunt instruments”. “I don’t think [the site] is likely to achieve much by way of true accountability—such websites do not usually take account of some of the issues in the case that may explain a particular sentence.”


In a democracy, institutions must have legitimacy in the eyes of the people they claim to represent in order for their decisions to be accepted and respected by society. In this way, it is important that public expectations and opinions of the judiciary and its decisions do play some role in the development of the justice system. In the Trust’s view, says Money, this means that, “It is the judges’ responsibility to make decisions that are responsive to, and reflective of, contemporary public expectations”. However, in relying on public opinion, Tinsley warns, we must ensure that that opinion is objectively informed about the issues. Initiatives like the Judge the Judges site, which present “a skewed set of information”, are unlikely to develop public expectations which will lead to better outcomes and better policy, she says.

Both Tinsley and John Pratt, Professor of Criminology at Victoria, point to numerous studies which show that, while in the abstract most members of the public think that judges are too lenient, when presented with the actual facts of the cases, they consistently choose sentences that are less severe than the judges’. Those who call for judges to impose harsher sentences in line with public expectations, then, are “in for a rude surprise,” says Pratt. “Basically all those people are saying is, ‘Look, we think that judges should have to sentence according to what we think is the right penalty in this case’.”

In determining what constitutes public opinion, Pratt says it is important not to become distracted by “loud voices”. “What exactly do you mean by public opinion? Do you mean sensational headlines in the newspapers? Or callers to talkback radio… Those are simply people with loud voices. Empty vessels make the most noise anyway, as my mother always used to tell me.” In addition to presenting a misinformed view of what exactly it is that the public expects from the judiciary, these skewed representations can also create problems where they don’t exist.

“We’ve become so saturated with these headlines about punishment and crime and so on and so forth in recent years, we actually forget that crime rates in this country have been in decline for about 15 years or so, as they have been in virtually all other Western countries. By and large, the crime problem in this country isn’t great, and it’s entirely manageable,” explains Pratt. Indeed, over the last 15 years, there has been a 30.4-per-cent decrease in New Zealand’s national crime rate, yet the number of people in our prisons has doubled. In other words, rather than being too lenient, judges are locking up more offenders than ever before.


Our overall crime rate may be in decline, but the rate of reoffending is not. In 2010, 61.9 per cent of people reoffended within the first two years of leaving prison, an increase from a reoffending rate of 55.4 per cent in 2005. We may be sending more people to prison, but if the goals of punishment are deterrence and rehabilitation (and not just retribution), it’s not clear that we are attaining them.

More effective sentencing doesn’t necessarily mean harsher sentencing. While Tinsley notes that, in practical terms, a longer prison sentence will stop a particularly “prolific” offender from reoffending for as long as they are physically incapable of doing so, increased time behind bars does not necessarily have any positive effect on reoffending once they are released. “Simply detaining people does not make for a change in behaviour once we do eventually release them.” Pratt agrees: “If anything, higher sentences are probably more likely to make the people who get them reoffend when they come out… if you cut someone off from virtually all their contacts and life outside the prison and give them next to nothing in terms of rehabilitation… the longer they’re subjected to those pressures, the more likely it is that they’re going to have severe problems readjusting to life when they come to the end of their sentence.”

In cases of violent offending, no amount of punishment will ever undo the crime that has been committed, nor—as Tinsley and Pratt point out—will a punishment that “puts victims first” necessarily stop it from happening again. When looking to sentencing, then, decisions need to be made with more than mere retribution in mind. “We need to ensure that we aren’t being more punitive than is necessary, and that we are trying to achieve more than simple incapacitation,” explains Tinsley. How then, can the situation be improved?

When asked to identify the main issues facing criminal justice in New Zealand, Pratt points to high rates of addiction, mental-health issues and illiteracy among prisoners as sticking points in the process of rehabilitation. The National Government, he says, is doing more than Labour did to ensure that prisoners get real assistance while they are in prison, but there is still a long way to go. Moreover, rather than relying on sentencing as the ambulance at the bottom of the cliff, we should be paying more attention to solutions that exist outside of the courts. “Instead of looking to the penal system to try to provide solutions to this terrible baggage of problems that people bring with them to prison… it would make a lot more sense if we had social and educational policies and health and welfare policies that prevented those kinds of problems developing in the first place.”


When it comes to questions of justice, it can sometimes be unclear whether the decisions made are the right ones. In seeking to improve the system, we must remember that the society—the “us”—we’re seeking to improve, includes both offenders and victims. “What standards of treatment would we expect to be applied to us or one of our family members should we be arrested?” asks Tinsley. “Those are the standards that should apply—the reality is that it could be us or our family member, and when we make the rules we should try to ensure that we are fair.”

Only then will justice be served.


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