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SocietyMay 12, 2020

Court adjourned: How the pandemic is delaying justice in criminal cases

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The average wait for a jury trial in New Zealand is 425 days – and the coronavirus just made the problem a whole lot worse, write Nessa Lynch and Yvette Tinsley of Victoria University of Wellington.

In a recent interview on Māori Television, chief district court judge Taumaunu described the Covid-19 pandemic as an unprecedented challenge for the courts, noting that even the two world wars did not result in the same level of disruption, and that around 50,000 court events in the district court jurisdiction were affected. There are approximately 80,000 adults prosecuted in court per year (covering around 200,000 charges), while 1,400 children and young persons are prosecuted.

Under alert level four, court proceedings were limited to urgent, time-sensitive matters. Under level three, the general approach is that courts are an essential service and are operating where it is safe and practicable to do so, and are making use of remote participation methods.

Even when the country moves to level two soon, the ongoing public health measures and the backlog of cases means that the effect of the pandemic on court business will persist in the medium to long term, in an already creaking justice system.

The right to be tried without undue delay and the right to a jury trial are fundamental and long-standing protections for the accused person. Pandemic implications such as the need for physical distancing, delays in completing expert reports, and difficulties with taking instructions from clients will mean delays for all types of criminal cases.

The right to a jury trial is for those facing penalties of two years’ imprisonment or more. There is no doubt the announced suspension of jury trials until the end of July was the best option in the short term. But the resulting delay causes systemic issues, risks breach of individual rights, and is likely to cause distress and harm to defendants, complainants, witnesses and their whanau.

The current pause comes at a time where there is already considerable strain on the system: the annual report from the high court in 2019 reported that the average wait for a jury trial in Auckland is already 436 days, while the nationwide average is 425 days.

There is a danger that more defendants will plead guilty in order to avoid further delay or may elect judge-alone trial when they would otherwise have elected trial by jury. For the most serious offences such as murder and manslaughter, trial must be by jury. Despite the presumption of innocence, a significant proportion of defendants will be remanded in custody, at a time when reports suggest that Covid-19 measures in prisons have led to increased lockdown times.

Other common law jurisdictions are actively looking for ways to avoid the problems that suspension of jury trials brings to the criminal process. For example, the Australian state of Victoria has enacted temporary legislation allowing defendants in custody to opt for judge-alone trials in cases where a jury trial was previously mandatory, something that has also been hotly debated in England and Wales. In New Zealand, we are not yet having significant public debate about the ongoing effects of delays to jury trials, much less about solutions.

At present – barring specific limited exceptions – there is no general ability for New Zealand courts to order trial by judge-alone where the defendant wants to be tried by jury. One obvious solution to the delay is to have more judge-alone trials even where the defendant would like to be tried by jury, either by increasing the maximum penalty at which the right kicks in, or more radical legislative reform to allow it in all trials.

This might seem a straightforward solution, but it fails to consider the importance of the jury trial as a due process protection of individuals from the might of the state. Famously described by Lord Devlin as “the lamp that shows that freedom lives”, the constitutional role of the right to a jury trial goes back to the Magna Carta. Juries also allow for community participation in justice and educate the public about the criminal system. Lessons from the infamous Diplock trials in Northern Ireland show us that in bringing in reform to clear an emergency backlog, we risk a long-term loss of the right to a jury trial – all without proper debate of its merits in the longer term.

We should therefore consider more creative ways to get jury trials happening again as soon as possible. It’s worth exploring changes to the way juries are selected so that large groups are not having to gather at court, including performing the initial pre-trial ballot online. To address people’s potential reluctance to serve on a jury soon after an economically punishing lockdown, jury attendance fees could be increased and excusals and deferral of jury service for those in “at risk” groups for Covid-19 could be made easier.

Once empanelled, there are likely to be problems with physical distancing in courtrooms and jury rooms in some of our courts. The use of large venues as courtrooms, such as university lecture halls, has been mooted elsewhere, and there is also the possibility of the jury sitting in a different courtroom or building, viewing the trial by remote link.

There is even research being conducted on virtual criminal trials where jurors connect to the trial from their homes, although early reports suggest that despite some positives there are significant drawbacks related to both practical, technological issues and principled problems of representation and security.

Reducing the number of jurors could also address the problem of physical distancing but should be approached with caution. The under-representation on juries of Māori and other groups might be exacerbated, while smaller juries means less protection against prejudicial reasoning. The possibility of alternate jurors – who act like injury substitutes in a football game – could also be explored. Our law already allows for continuing a trial with fewer than 12 jurors, but one or two alternate jurors would offer a buffer should some jurors need to self-isolate part way through a trial.

There’s no easy fix to this issue, but consideration of short-term changes is necessary, while balancing procedural rights with the need to ensure a reasonable timeframe for defendants, complainants and their families.

Nessa Lynch is Associate Professor and Yvette Tinsley is Professor at the Faculty of Law, Te Herenga Waka, Victoria University of Wellington.

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OPINIONSocietyMay 12, 2020

A modest defence of the coronavirus contrarians

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Yes they’re annoying and mostly wrong, but the Covid sceptics fulfill a vital societal role, argues Danyl Mclauchlan.

Most contrarian coronavirus theories go something like this. The response to the virus – the lockdowns, global panic, border closures, economic meltdown – is a huge over-reaction. Governments have made decisions based on scientific models forecasting mass fatalities, which were flawed, and have proved to be false. Coronavirus is not actually that bad. Most people who get it never even know they have it. Or, if it is bad, it is no worse than the flu – which killed 80,000 Americans in the winter of 2017-2018! – and the economic damage caused by the response to the virus will lead to a higher mortality rate than the pandemic itself. The cure is worse than the disease! And this is especially true here in New Zealand where our lockdown is much harsher than Singapore’s Sweden’s Australia’s.

In some versions of the theory all of this is just a massive blunder; in others it is a conspiracy perpetuated by scientists and politicians to destroy the private sector, raise taxes and establish a police state. And of course the mainstream media is complicit in all of this: they’re failing to ask the hard questions, failing to hold the government to account because they’re infatuated with the prime minister or financially dependent on the state, or just too stupid to understand what’s happening. .

There’s no one central person or outlet promoting coronavirus contrarianism. It is visible through social media monitoring tools as a series of wildly popular viral emails, Youtube clips and Facebook shares, like this (paywalled) NBR take by former ACT MP Richard Prebble, or this critique by Dr Muriel Newman, also probably-not-coincidentally a former ACT Party MP, or this column by UK-based conservative columnist Toby Young, and this interview with Lord Sumption, a former senior judge in the UK (coronavirus contrarianism is a global phenomenon), and the voices of the ‘Plan B’ academics, led by Auckland epidemiologist Simon Thornley, who vigorously opposed New Zealand’s lockdown and complained that they were being censored by the media (they were widely covered).

The Plan B group’s call was the front-page lead on the Dominion Post, April 14.

The politics of coronavirus contrarianism sloshed around a little before it reached its current state. Many of the early voices warning about the global threat from the mysterious Wuhan outbreak came from the tech industry. Tech’s thinkers have long worried about the existential risk posed by respiratory pandemics, but left-wing media commentators duly mocked them as idiot techbro amateur epidemiologists and anti-Asian racists. We needed to listen to the experts, the discourse went, and the World Health Organisation itself had declared that the virus was less harmful than the flu and was well contained by the Chinese government. Anyone panic-buying masks or stockpiling toilet-paper was a moron.

Then the virus went global, Donald Trump became a coronavirus contrarian, declaring that the disease was a hoax, and the discourse pivoted. Fear of the virus and support for the lockdown became orthodox left-wing positions, and scepticism towards same were taken up by thinkers on the right. (The New Zealand public, largely oblivious to all of this, overwhelmingly supports the lockdown.)

The virus is a ripe area for sceptics and contrarians. There have been a number of failed expert predictions and flawed models, including the “flattening the curve” policy solution popular with epidemiologists in the early stages in the pandemic, until the famous paper from Imperial College pointed out that it overestimated the ICU capacities of modern healthcare systems by several orders of magnitude. This came on top of the much-maligned WHO responses and the IHME forecasts in the US. And because the virus is novel there’s still no consensus around vital questions like the lethality of the pathogen, or how contagious it is, or why it has devastating impacts on some people and not others, or why some people are so much more infectious.

This means you can go shopping on social media for experts who validate your worldview – Stanford’s John Ioannidis is wildly popular – and point to countries experiencing a (thus far) benign pandemic and ask “Why aren’t we listening to them and doing that?” Epidemiologists trying to model the disease are faced with the tricky problem – ubiquitous in the social sciences and often unsolvable – that humans can change our behaviour in response to a model. If you predict a high fatality rate and the population starts social distancing as a response, resulting in few deaths, contrarians can triumphantly point out that your model was wrong.

The contrarians might be right about some things, or even everything, although this feels more and more unlikely by the day. (The great “economy versus the lockdown” debate seems to feature very few economists taking the side of the economy.) But the virus might prove impossible to eliminate or contain, and in a year’s time we might still be cycling in and out of lockdown with our economy in shreds, while Sweden has herd immunity and no more community transmission. Alternately, we might be doing fine, and Sweden might experience a second wave of infections during that country’s flu season and face months of severe lockdown, tens of thousands of deaths, nightly rounds of refrigerated trucks moving the bodies to mass graves. Nobody knows. And the virus is so heterogeneous – the impact of the pandemic differs wildly around the world and even within some countries, seemingly contingent on seasonality, climate, population density, the age structure of the population, the level of air pollution, probably a host of other factors that have yet to be identified. Which means that Sweden might be fine, but if we copied their approach the results for us might be disastrous. Or they might not. Nobody knows.

People enjoy the warm spring weather at Hornstull in Stockholm on April 21, 2020, (Photo: JONATHAN NACKSTRAND/AFP via Getty Images)

Most governments making hard decisions under uncertainty look at multiple scenarios and try to avoid the worst cases, while contrarians can pick and choose a happy combination of best cases. “Why don’t we just have no lockdown and no pandemic?” They liked Sweden and Singapore a few weeks ago, Australia today. It’s true that Australia looks like they’re having a better lockdown than we are. Maybe we should have done what they did. It’s also true that they’re a lot wealthier than us. Last week their government hired 20,000 redundant Qantas employees and trained them to do track and trace, and they’ve rolled out a smartphone app for automated contract tracing. Our prime minister wants us to contract trace by keeping diaries. It’s helpful to be rich in a crisis.

The neuroscientist Hannah Critchlow has this theory about contrarians. She argues that they might be an evolutionary strategy, that social insects like bees often have population subsets that are “socially unresponsive” and reluctant to go along with whatever the rest of the hive is doing. This pays off on the rare occasions when the rest of the hive does something dumb and gets wiped out. Maybe our own contrarians fulfil a similar function: wrong most of the time, correct occasionally when it counts. It’s a more generous way to think about a group who are often a bit tedious and cranky.

Science, politics and the media are institutions that rely on a certain culture of contrarianism in order to have value: MPs, researchers and journalists who assume that bureaucrats, established experts and/or the government are always right and always trustworthy are not very useful. We’re currently experiencing a moment of national unity, and this is mostly a good thing, but there’s always a certain amount of conformity and intolerance towards dissent built into nationalist sentiment, so we’re seeing politicians and journalists who critique or question the government come under sustained attack from the government’s supporters and the public. The fiercest backlash has been directed towards Simon Bridges – which I get: I too find him hard to like – but whose job title is, literally, Leader of the Opposition, and the parliamentary press gallery, who’ve dared to ask impertinent and disrespectful questions of the prime minister and her officials.

There are always cranky, conspiratorial anti-government critiques circulating online, and there are always supporters of the government-of-the-day screaming that the media are a fifth column and dissent is treason. But both of these phenomena seem very intense right now. Probably because we’re all stuck stuck at home, and anxious and bored, and watching the livestreamed press conferences and select committees and either feeling patriotic and supportive of the state, or oppressed and tyrannised by it. And media-bashing is every lazy pseudo-intellectual’s favourite pastime (as an aside, it’s been very revealing to see how many of our media and political experts – both self-appointed and those who have advanced degrees in these subjects, comment on them and even teach them at tertiary level – have revealed that they’ve never actually seen a political press conference before, and have no idea how the news is made, or understand why we have an adversarial political system or the rule of law.)

I trust the prime minister a lot more than her critics do. But I also believe that a lot of her cabinet ministers are incompetent, and others are highly unscrupulous, and that this government makes operational and policy blunders on a scale we haven’t seen in our last few decades of technocratic centrism (as I was writing this the news broke that the entire lockdown may have been illegal). And they’re currently making huge decisions based on incomplete information because there is no expert consensus or reliable data available.

So I think there’s value to disrespectful questions and politicised critiques, and even some of the contrarianism, even if a lot of it is misguided or in bad faith, or simply wrong. And I think we need a space for those critiques in our mainstream politics and media instead of shouting it down and leaving it to circulate on the shadowy fringes of the internet. Because the experts are not always right and the government is not always trustworthy. If contrarians warn about the danger to our freedom in this moment, and it makes us more vigilant and we remain free, does it mean the contrarians were wrong?

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