Tuesday, September 27, 2016

Error and injustice

In Booth v R [2016] NZSC 127 the Court changed the interpretation of the Parole Act 2002 to make some prisoners eligible for release earlier than they had been under the law as it had been understood and applied.

The Court did not decide whether any prisoners should get compensation.

When considering whether compensation should be given, there are several categories of prisoners to look at:
  1.      .     Some prisoners were released the day after Booth was decided.
  2.      .     Others will be released as soon as inspection of their files reveals that they should be released under Booth.
  3.      .    Other prisoners will have their release dates re-calculated in compliance with Booth.
  4.      .    And some prisoners have served their sentences under the law as it had previously been understood to have been, but if Booth had been applied to them they would have been released earlier.

Plainly, category 3 prisoners will be released on their correctly calculated dates and will not have been imprisoned longer than the law now permits. Compensation is not an issue for them.

Compensation is a live issue for category 2 prisoners whose release is delayed because of the time needed to ascertain their eligibility for release under Booth.

Less obvious, but still in my view fairly clear, is the position of prisoners in categories 1 and 4. These prisoners have all been in custody for longer periods that the law under Booth allows. But were they unlawfully detained? They were detained in compliance with the law as it had been understood to have been under a Court of Appeal decision (Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).) That case was not appealed (an appeal would have had to go to the Privy Council) and it was a long-standing precedent.

Does a change in the interpretation of legislation have retrospective effect? Courts have an inherent power to limit the retrospective effect of their decisions: Cadder v HM Advocate (Scotland) [2010] UKSC 43 at [58]. In Jogee and Ruddock v R [2016] UKSC 8 at [100] the principle of finality in litigation was referred to in the context of (what may be seen as more fundamental) the issue of convictions obtained under law which was subsequently held to have been wrongly understood:

“ … where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years.”

And in the same paragraph the Court added:

“Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:

“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

It is not the change in law that is the decisive point, but it is whether an exceptional substantive injustice can be demonstrated by a prisoner whose sentence was served under the old understanding of the law. Here the exceptional and substantive injustice is the detaining of prisoners in the Booth category for longer than they should have been as a result of not counting all their time on remand as part of the sentence served. Those who were released on parole at the earliest opportunity have therefore been detained for longer than was lawful because a proper allowance for time served was not made when calculating their parole eligibility dates. Similarly, those who were not released on parole but who had to serve their sentences until their statutory release dates were detained for longer than they should have been if the miscalculation of credit for time spent on remand meant that their statutory release dates were later than they should have been. It can not matter for this seriousness of impropriety that the unlawfulness was only recently discovered: the fact that the officials were obeying the misconceived understanding of the law is irrelevant.

That seems to me to be the legal answer. The policy answer will depend on the weight to be given to finality in litigation as against the need to ensure that those who enforce the law obey the law, particularly in relation to people - prisoners - who are otherwise without remedy against institutional abuse of power. Their vulnerability became entrenched at a time when the final appeal court - the Privy Council - was, as a matter of practicality, out of their reach. I think the policy answer will be consistent with the legal answer, that retrospective effect of Booth will be acknowledged, and that compensation should be paid. There will still be arguments about whether compensation can be given without discriminating in favour of those prisoners whose offences did not have victims, because of the Prisoners' and Victims' Claims Act 2005.