Lawyers rally behind chief justice

The nation's legal fraternity has mounted a strong defence of Chief Justice Dame Sian Elias's right to speak her mind on criminal justice matters, and insists her criticism was not aimed at the Key government.

Elias suggested in a speech to Wellington lawyers on July 9 that early release for some prisoners should be considered to ease overcrowding, and that the justice system was increasingly being influenced by emotions, driven by a political and media focus on victims.

Justice Minister Simon Power bluntly reminded Elias that her job was to administer the law set by the government, but his rebuke was seen by some as an overreaction.

The New Zealand Law Society, representing 11,000 lawyers, has swung in behind Elias, saying she had 40 years' experience and her views deserved serious attention, not attack.

Society president John Marshall, QC, said Elias did not criticise any specific government policy.

"What she has done, in a compelling way, is to raise questions for consideration, and make suggestions based on 40 years' experience with our criminal justice system," Marshall said.

"Judges have to hear criminal cases every day. They have knowledge and understanding of the criminal justice system which is second to none. When they speak, responsibly and carefully as the chief justice has done, we need to listen, not criticise.

"Most of what the chief justice says is non-controversial, and most lawyers would fully agree with her comments - for example that imprisonment does not reduce crime, and that the causes of crime need to be addressed, as do the issues of mental health and substance abuse."

But Sir Douglas Graham, a former attorney-general and justice minister, said Power was right to remind the chief justice that she had "stepped over the line".

"It is most unusual for the head of court to comment on matters of government policy and implicitly criticise it," Graham said.

"I can understand where Simon Power is coming from and I think he's probably right.

"If there is any doubt whether, on the one hand you want the chief justice to feel free to speak and, on the other, comply with constitutional convention, then she should comply with constitutional convention, rather than err on the side of liberality.

"The executive [cabinet] of government does not trample into the realms of the judiciary. The rules exist so that the judiciary is free to get on with judging and the executive gets on with governing."

Elias had said the system was not working, said Graham, and this implied that the government's policies were not working.

"She is entitled to her own views, and no doubt they are very valid and based on experience, but she should express them privately to the attorney-general."

Andrew Geddis, Professor of Law at Otago University, believed Power may have overreacted.

"I don't see any constitutional problem with the particular speech she gave. I think it falls within the line of the judiciary making public comment on something it has particular expertise on, without instructing the government to do anything," Geddis said.

SPEECH THAT UPSET THE GOVERNMENT

The theme of Chief Justice Sian Elias's speech was  "What turns 'Blameless Babes', as all criminals once were, into the stuff of nightmares?" Her points included:

* Considering the idea of executive amnesties to send prisoners into the community early, to prevent overcrowding in our jails. "I do not know whether it is practical or politically acceptable but I think it needs to be considered."

* New Zealand's prison population today is 8400 but is expected to increase to 10,795 in the next eight years.

* The average cost of keeping an offender in prison is $100,000 a year, against the average daily cost of $10 for someone serving a community order.

* The threat of imprisonment does not deter and imprisonment does not reform. Harsher punishments had not made the community safer.

* Prison often means offenders leave jail more dangerous than when they went in.

* A Canadian study found reoffending rates were higher among those sentenced to jail than community-based orders.