Legal Beagle by Graeme Edgeler

58

A war crimes inquiry; or why Nicky Hager is wrong

On Tuesday, Nicky Hager and Jon Stephenson released Hit & Run: The New Zealand SAS in Afghanistan and the meaning of honour. The book details a 2010 raid in Afghanistan, carried out New Zealand SAS troop, with assistance from US air power. They say the attack was failure, leaving six civilian dead and 15 others wounded.

The authors make serious allegations, summarised in the book’s concluding chapter (page 110):

[The SAS] and their US allies attacked villages of civilians with helicopter gunships and SAS snipers, killing and injuring innocent people. Confident in their ability to keep everything secret, they needlessly burned and blew up home. Having messed up the first raid, they neither admitted fault nor tried to make amends, and undertook a second raid to destroy more homes. Later, having captured one of the insurgents, they beat him while he was blindfolded and bound, and transferred him to known torturers. They eliminated others with targeted killings. Knowing that international law requires breaches of human rights obligations to be reported and investigated, they did nothing. Instead they covered up and denied everything.

The war crimes and serious breaches of international and domestic law potentially committed by the SAS and its US allies include failing to distinguish between combatants and non-combatants, and the disproportionate use of force, especially the killing and wounding of civilians and attacking or bombarding dwellings that were undefended and were not military objectives; destroying the property of an adversary where that destruction was not imperatively demanded by the necessities of the conflict; failing to search and care for the wounded; and the cruel treatment and torture of a prisoner.

These aren’t just allegations of unlawful conduct by the SAS. These are allegations that individuals committed serious crimes.

I will not lay out the particular facts alleged to underlie each allegation, but one seems to be a particularly clear cut allegation (pages 79-81, footnotes omitted):

About 10 days after the first raid, the SAS launched a second raid on Naik. … An assault team, consisting entirely of SAS commandos, left the rest of the troops and headed straight to Abdullah Kalta’s house. According to one SAS member, they had not come to find Abdullah Kalta or nay of the insurgents, who were again far away. They had intelligence reporting that some families, including Abdullah Kalta’s, had started to rebuild their houses before winter arrived. … The reason for the second raid was to wreck the houses again, this time more thoroughly.

The SAS team that went to Abdullah Kalta’s house did not search. ‘They just went straight in’, they set the explosives, a warning came for everyone in the vicinity to take cover and, boom, ‘they just blew it up’. …

Asked why they did it, a SAS member replies, without hesitation, ‘It was to punish them. Yeah, just that … They went to destroy the house that were rebuilt.’ It was ‘pure revenge on the part of the [SAS] guys.’ They did it ‘just to fuck them up’. Another of the New Zealand personnel said an internal report explained that the point of the second raid was to scare the insurgents and discourage them from further attacks.

New Zealand has adopted the Rome Statute of the International Criminal Court. This treaty forms part of New Zealand domestic law. As part of the International Crimes and International Criminal Court Act, it makes a number of actions, long-recognised internationally as war crimes, express crimes under New Zealand law. A couple of these are in issue to this allegation. Section 11(2) of the Act, and Article 8(2)(b) of the Statute include the following as war crimes:

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

The maximum penalty for someone convicted of a war crime is life imprisonment.

The closing chapter of Hit & Run calls for an inquiry: (page 110)

There needs to be an independent investigation with full powers to question past and present military staff and with complete access to SAS and Defence force records.

The authors name officers, both within the SAS, and in the wider Defence force who “should all be required to appear and give evidence as part of an inquiry”, from then chief of defence LTGEN Jerry Mateparae, and others in senior leadership roles, as well as the SAS Commander, the SAS Commander in Afghanistan, and the SAS ground commander who was on the raid, listed as Captain D.

The book doesn't expressly detail the type of inquiry the authors seek, but I was able to ask Hager a question as part of the live chat held with Nicky by Fairfax journalist Henry Cooke the day after the book was published. Cooke asked Nicky a question I had submitted via twitter:

Hager replied:

The answer is no we have not. As far as I know the New Zealand Police are not the place where you take allegations of war crimes. If there ends up being an investigation into serious breaches of international law and war crimes, then that should logically be well down the track, after there has been an independent commission of inquiry into the events of the book.

This suggestion is wrong-headed. We do not need an inquiry, we need an investigation.

The Rules of Customary International Humanitarian law have been helpfully summarised by the International Committee of the Red Cross, and they provide as clear an authoritative statement of New Zealand’s obligations under customary international humanitarian law as you will find:

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

And this is the problem with all the calls for an inquiry to date. Lots of people are saying that there appear to be war crimes. No-one appears to have appreciated what that means. It means we need an investigation into war crimes. In New Zealand, this is a job for the Police.

I think about this not only from the perspective of New Zealand legal obligation to investigate allegations of war crimes, and the right of victims of alleged war crimes to have those allegations investigated, and prosecuted, but also from the perspective of those who are alleged, even if implicitly, anonymously, or collectively, to have committed war crimes.

I experience these sorts of dichotomies quite a lot. With recent stories of schools and teachers locking disabled children in seclusion rooms, or of youth being detained in police cells, or mentally ill people being tied down in prison, my first thought is often: it could be a breach of this right, or those involved may have committed this crime; but my second thought is usually: people being investigated have rights – the presumption of innocence, the high standard of proof, the requirement to establish a guilty mind, the right to silence. At that point, knowing only what I’ve read in the news media, I usually decide not to blog about my theories of criminality. And people being investigated have the same rights whether they’re a gang member, a school teacher, a serial rapist, a prison guard or police officer or soldier, a murderer, or even a judge.

This does not come “well down the track”. We have an obligation to start now, and those who may be charged have a right to expect it to be done properly. The longer we wait, the more hazy witness recollections become; physical evidence may deteriorate; documentary evidence or videos may degrade or become harder to find; witnesses may move, and become harder to locate, or may die. There is a reason that there’s a right to be tried without undue delay – the longer between the making of an allegation, and the holding of a trial, the harder it is to ensure a fair trial.

And there’s the big one, important to not only those accused of war crimes, but also to New Zealand as a country: there is a right to have the investigation (and if appropriate, the prosecution) conducted in New Zealand. These are allegations of war crimes; allegations of offences recognised as war crimes under the Rome Statute of the International Criminal Court. If there is no war crimes investigation in New Zealand, the Prosecutor of the International Criminal Court can conduct one instead.

This does not need to wait for Government to settle terms of reference on a commission of inquiry. Waiting until one is complete may just take the matter out of our hands.

I used the words *need*, *inquiry* and *investigation* deliberately. An inquiry could be important, and useful. It could determine what happened, who was responsible, and what changes should be made to reduce the risk of it happening again. It could see who knew what and when, whether the public, of the government, or others in the Defence Force were misled and by whom.

An inquiry could advance Hager’s proposal to “reduce the influence of the SAS within the Defence Force”, (p 113) or to provide information to enable “the public and Parliament … to decide whether they want to maintain a force primarily to contribute to other countries’ wars” or whether the SAS instead of “serving secretly under US command … should be scaled down and become a specialised force within infantry troops, available to support peacekeepers overseas and other agencies at home.” (p 114)

But holding an inquiry is not enough for New Zealand to meet its obligation to investigate allegations of war crimes. Holding an inquiry, while not conducting an investigation would compound any breach of international humanitarian law. The independent commission of inquiry Hager seeks would have the power to demand documents, and summon witnesses. But Commissions of Inquiry have limited purposes. Commissions of Inquiry are not criminal investigations. From the Inquiries Act:

11 Limits to scope of power of inquiry

(1) An inquiry has no power to determine the civil, criminal, or disciplinary liability of any person.

This is a problem for an inquiry of the type so far suggested (not only by Hager, but also by other journalists, and even politicians). An inquiry cannot be allowed to interfere with a possible prosecution. The possibility that evidence heard by a commission of inquiry could be evidence that might be heard by a jury at a criminal trial (or more importantly, might be inadmissible at a criminal trial) could mean that there would need to be substantial suppression orders, lest the fairness of future criminal proceedings be threatened.

The necessity of avoiding prejudice to a trial, or even to a police investigation is recognised in the Inquiries Act, which provides that an inquiry can be suspended while the results of other investigations continue:

16 Power to postpone or temporarily suspend inquiry

(1) An inquiry may, after consultation with the appropriate Minister or appointing Minister, as the case may be, postpone or temporarily suspend the inquiry if—

(a) another investigation is being, or is likely to be, carried out into matters relating to the inquiry; and

(b) the inquiry is satisfied that to commence or continue the inquiry would be likely to prejudice—

(i) the investigation referred to in paragraph (a); or

(ii) any person interested in that investigation.

(2) The inquiry must commence or continue when it is satisfied that to do so would no longer prejudice the other investigation or any person interested in it.

Depending on the circumstances, a Commission of Inquiry can look into matters that may be related to questions of criminal liability. The Canterbury Earthquakes Royal Commission reported on the collapse of the CTV building in 2012; and a decision on whether to prosecute is still yet to be made.

But an inquiry into building codes and council practices is very different from one the purpose of which would appear to be to determine whether war crimes and other breaches of international human rights obligations have occurred. The Canterbury Earthquakes Royal Commission reported years before the criminal investigation into the CTV collapse even commenced. And there wasn’t an international prosecutor empowered to investigate if New Zealand did not.

More importantly, the allegations people are currently seeking to be investigated by a commission of inquiry, whether ultimately backed by sufficient evidence or not, are clearly allegations of war crimes. Criminal liability is not a peripheral issue. With the clear possibility of criminal charges following (whether in New Zealand, or internationally if New Zealand takes no action), any hope for an inquiry with full powers to demand the attendance of witnesses to answer questions may be forlorn.

While commissions of inquiry have broad powers to demand evidence and summons witnesses, the powers to compel answers only go so far. And people who may face criminal prosecution cannot be forced to give evidence at an inquiry about issues that may impact on possible charges they may face.

Soldiers don’t have a union as strong as the Police Association to look after their interests, but at some point, those implicated in the allegations contained in Hit & Run are going to get legal advice, and that advice will be very clear, especially for those on the ground who took part in the raids: shut up.

Earlier this week David Fisher and Nicholas Jones of the New Zealand Herald, and Eileen Goodwin of the Otago Daily Times published a story about how, in an investigation of whether National MP for Southland, Todd Barclay, had unlawfully recorded conversations, he had refused to give a statement to police. I was reminded of two things, first the incompetence of police in their last big investigation into allegation of illegal bugging, and second of the words of Robert H Jackson, the Chief US War Crimes Prosecutor at Nuremberg, who, as a Supreme Court Justice a few years later, reminded lawyers:

"Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

It doesn’t matter whether you are Teina Pora, Todd Barclay, or an SAS trooper, it remains good advice. It doesn’t matter if you are clearly guilty; guilty (but can they prove it?); or innocent. Any lawyer worth their salt will tell you to shut up. And no Commission of Inquiry will be able to compel evidence from anyone present while a prosecution remains a possibility.

I do not know whether allegations contained in Hit & Run are true, or whether the allegations, even if true enough to properly found a charge, are capable of being proved by admissible evidence beyond a reasonable doubt. But the Soldiers who were present, those who ordered them to take part, and everyone else involved at whatever level of the New Zealand Defence Force or the New Zealand Government has rights. And one of those rights is to have any allegations against them that need investigating, investigated by a competent authority, without improper pressure being placed on the investigator. They also have the right to have any decision over whether to lay a charge, decided only after a thorough investigation, and considering not only incriminating evidence, but evidence that tends to show their innocence. This is most likely to happen if any criminal investigation begins as soon as possible, and is not prejudiced by a full public inquiry.

There is nothing to stop the Government starting an inquiry. There will be some aspects of what has happened that will be able to inquired into without risking prejudice to a Police investigation, but, as is generally the case with coronial inquests, we will need to recognise that not every question of importance can be answered while questions of whether there will be criminal charges remain unanswered.

In New Zealand, such investigations are a matter for the Police, and decisions over whether to prosecute (in the High Court) are ultimately for the Solicitor-General or Crown Prosecutors. Alternatively, allegations against soldiers may be a matter for the Military Police, leading the possibility of trial at a Court Martial. Neither will have much experience investigating war crimes. In the circumstances, I think the Police are better placed in the case.

There are sometimes reasons to prefer a Court Martial. For example, if the result of the investigation is that there is insufficient evidence to file war crimes charges, but that charges under the Armed Forces Discipline Act for failure to comply with the rules of engagement could be laid against some involved, this could only be done at a Court Martial. However, that is not possible here. There is a time limit for such charges to be brought to Court Martial, and it has well passed. A Police investigation would likely involve assistance from Military Police, and Crown Lawyers in any event.

Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.

When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.

Where Police fail to investigate an alleged war crime, New Zealand has agreed, with the approval of Parliament, that the Prosecutor of the International Criminal Court can step in instead. We should not let that happen.

6

The inflation adjustment of benefits; or a bill for Keith

A little while back on Twitter, I got sucked into a thread on inflation. Someone argued that the general consumer price index was a poor estimate of the effect of inflation on lower income households. Several of us argued back and forth, until someone new chimed in and pointed out that Statistics New Zealand now publishes a range of measures of increase in the cost of living, for different households.

And at least in recent years, the effects of inflation are greater on those who are in the lowest-spending households and households with beneficiaries (their annual inflation was 1.4%, while the annual inflation of the highest-spending households was 0.6%).

The recent numbers, pointed out to me by Keith Ng last week got me thinking about benefit levels. Every year, benefit levels are automatically increased by inflation, but the inflation measure used is overall inflation, not the inflation actually experienced by households with beneficiaries.

We inflation-index benefits because they're supposed to be set at a minimum level to ensure people can continue living, and if we didn't increase benefit levels with inflation, they would fall below the level where people could survive.

Whether they are set at the right level is debateable, but thanks to Statistics New Zealand's new range of inflation indexes, we know that we haven't quite got the details right. The inflation experiences by households with beneficiaries is slowly undermining the buying power of benefits.

Indexing benefits to overall inflation made sense when we didn't have research showing the actual inflation rate for beneficiary households. Now that we know what this is, we should clearly update our laws in light of this new information.

To help see if that can happen, I have drafted a bill to amend the bits on Social Security Act that relate to the inflation adjustment of benefits. It's neutral, so that, if in future, beneficiary households experience lower than average inflation, benefits will increase by less than overall inflation, but it provides for benefit rates (and certain asset thresholds) to be adjusted according to the Household Living-costs Price index - beneficiaries, instead of the overall consumer price index.

I don't know if the Labour Party, or the Green Party will ever get around to promising to reverse Ruth Richardson's benefit cuts. That's a bigger debate about priorities, but perhaps there's an MP willing to pick this up. If our MPs think that benefits are set at the right level, it shouldn't be too hard to get them to agree to keep them at that level, something Statistic New Zealand now tells us is not happening.

19

New Zealand rockets up the anti-Corruption ratings: a non-Spinoff investigation

New Zealand is again atop the Transparency International list of countries with the lowest perceived corruption.

With an index score of 90 out of a possible 100, the perception of non-corruption has also increased (last year, when New Zealand ranked forth, with a lowly 88). It’s not that the rest of the world is getting worse, New Zealand's apparently getting better. What is New Zealand doing right? I decided to investigate.

The Transparency International Survey of Corruption perceptions takes data from a range of international surveys that, in part, have questions on corruption. There are thirteen in all, including The African Development Bank Governance Ratings, the Economist Intelligence Unit Country Risk Ratings and World Justice Project Rule of Law Index. Corruption is a factor in governance, in economic risk, and in the rule of law, so Transparency International takes the data from the corruption parts of those rankings, and brings that together in one place.

New Zealand features in seven of the thirteen reports (Transparency International will give a country a rating if it features in at least three). Transparency International takes the information it gets from each of those surveys, turns that into a score out of 100, and then averages those scores to determine each country’s score.

So, how did New Zealand’s average score increase so drastically, up from a paltry 88, to a stellar 90?

Let’s look at each of the reports.

In the World Economic Forum Executive Opinion Survey (which surveys business executives), our corruption score fell from 92 to 90. That’s not good.

According to the IMD World Competitiveness Yearbook, a survey of business executives by IMD Business School in Switzerland, New Zealand’s corruption score increased from 93 to 95. That’s the two point increase we need to find, but all it does is cancel out the fall caused by the presumably different business executives that the World Economic Forum used.

In the Global Insight Country Risk Ratings, an assessment by in-country specialists who are part of the consulting firm IHS (now IHS Markit), New Zealand’s corruption score was unchanged: 83 in both 2014 and 2015.

New Zealand was up two points in the Economist Intelligence Unit’s Country Risk Ratings (which uses the experts in the Research Arm of the Economist to construct rankings), going from 88 to 90.

Unfortunately, New Zealand was down in its corruption rating in World Justice Project’s Rule of Law index, dropping from 83 to 79.

And New Zealand was down by five points in its corruption score according to score of risk analysis company Political Risk Services’ International Country Risk Guide, falling from 98 points to 93.

How then did New Zealand’s score increase? If you’ve been counting along, that’s only six reports, and New Zealand featured in seven. In the Bertelsmann Foundation’s Sustainable Governance Indicators report, New Zealand’s corruption score increased from 81 to 99. This is the sole reason for New Zealand’s index score increased.

How did the Bertelsmann Foundation arrive at its conclusions? Transparency International describes it in the following way:

The Sustainable Governance Indicators (SGI) examine governance and policymaking in all OECD and EU member states in order to evaluate each country's need for, and ability to carry out, reform.

The indicators are calculated using quantitative data from international organisations and then supplemented by qualitative assessments from recognised country experts. 

What changed between 2015 and 2016 that accounts for the upgrade? The people who prepare the Bertelsmann Foundation’s report have offered their own insights:

New Zealand is one of the least corrupt countries in the world. Prevention of corruption is strongly safeguarded by such independent institutions as the auditor general and the Office of the Ombudsman. In addition, New Zealand has ratified all relevant international anti-bribery conventions of the OECD and the United Nations. All available indices confirm that New Zealand scores particularly high regarding corruption prevention, including in the private sector.

This synopsis footnotes the Freedom House: Freedom in the World 2015 index. And what did that report have to say about corruption in New Zealand: 

C. Functioning of Government: 12 / 12

New Zealand is one of the least corrupt countries in the world. It was ranked 2 out of 175 countries and territories surveyed in Transparency International’s 2014 Corruption Perceptions Index. However, scandals involving political donations from migrant Chinese businessmen have hurt the government’s image. In May 2014, Minister Maurice Williamson resigned amid allegations of intervention in a domestic violence case involving a Chinese businessman who had made political contributions. In another case, donations were made to the National Party by a Chinese firm, one of whose board members is the husband of the Justice Minister.

So why, did Transparency International raise New Zealand’s anti-corruption score increase in 2016? According to the authors of the reports they relied on (and the authors of the reports they relied on) it’s because New Zealand was highly ranked on Transparency International rankings in 2014.

Now that's funny, and points out a pretty big problem with all of these indexes (although at least the Transparency International index is not quite as ridiculous as the index that suggested that North Carolina is no longer a democracy). but it's not actually the reason.

The Bertelsmann Foundation is interested in sustainable governance, of which corruption is only a part of its assessment. Indeed, the data transparency international uses from their assessment comes from a single question:

To what extent are public officeholders prevented from abusing their position for private interests?

The recognised country experts were told this question addresses:

… how the state and society prevent public servants and politicians from accepting bribes by applying mechanisms to guarantee the integrity of officeholders: auditing of state spending; regulation of party financing; citizen and media access to information; accountability of officeholders (asset declarations, conflict of interest rules, codes of conduct); transparent public procurement systems; effective prosecution of corruption.

Helpfully, the experts tasked with answering this question were warned:

Note: Please be aware that the Corruption Perceptions Index (CPI) of Transparency International uses the data and information given in response to question D4.4 for their assessments. To avoid circularity of assessments, please do not base your evaluation on the CPI.

They were asked to give a score from 1 to 10, with scores explained as following:

  • A score of 9 or 10 signifies that “Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.”
  • A score of 6-8 would show that “Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.”

Quantitatively, this appears to be the source of the difference in New Zealand’s Transparency International index score between 2015 and 2016.

So, presumably, that question saw New Zealand get a score of 8 in 2015 (which Transparency International converted to 81), and a 10 in 2016 (converted to 99)?

Actually, no. The Bertelsmann Foundation's assessor gave New Zealand a 10 in 2016, and a 10 in 2015, and a 10 in 2014. It's just that in 2016, this 10 was converted by Transparency International to a 99 on a 100-point scale, and in 2015, that 10 was considered to be worth 81 by Transparency International.

Transparency International explains how this works:

Standardise data sources to a scale of 0-100 where a 0 equals the highest level of perceived corruption and 100 equals the lowest level of perceived corruption. This is done by subtracting the mean of the data set and dividing by the standard deviation and results in z-scores, which are then adjusted to have a mean of approximately 45 and a standard deviation of approximately 20 so that the data set fits the CPI’s 0-100 scale. The mean and standard deviation are taken from the 2012 scores, so that the rescaled scores can be compared over time against the baseline year.

I know a number of people much better at statistics than me occasionally read and comment here, so I won't try to explain it. In the end, I doubt understanding the exact process will help. Although I suspect it gives lie to Transparency International's outline of the results as shocking because so many countries score below 50:

So what explains New Zealand's rise?

In 2015, when New Zealand's Bertelsmann Foundation score of 10 was standardised as an 81, Denmark's score of 10 scaled to 97. Finland and Sweden, whom New Zealand beat on the Bertelsmann Foundation's measure (they received 9s) got scores of 91. The Netherland's score of 7 got scaled to 97 (oops). And Canada's 8 got them 81 like us.

Why did New Zealand rocket up Transparency International's Anti-Corruption ratings in 2016? And why did the Netherland's fall from fifth to ninth? There were data entry errors in Transparency International's 2015 analysis. Fix that mistake, and New Zealand's index score didn't go up from 88 to 90, it went down from 91 to 90. And New Zealand would have been first equal (relying on rounding) in both years.

Assuming, of course, there aren't more errors. And ignoring that these sorts of rankings are stupid anyway.

19

Three Strikes five years on! Now with accurate numbers!

A month ago, I retracted a piece I wrote in 2015 looking at the first five years of the three strikes sentencing regime for serious violent crime, attempting to see how the first five years after three strikes compared to the five years before three strikes.

As detailed in that retraction, the comparisons I then made were invalid. The two sets of data I was comparing were not comparable. I now have this data, following contact by the Ministry of Justice after my retraction (and Nikki Macdonald's excellent work in the Dominion Post) was published, and the Ministry apologised for falling short of the high standard they set for themselves, and offered to provide comparable data if I still wanted it.

The comparison between the years before and after the coming into force is less stark, but there remains a reduction in strike recidivism beyond that in strike crime generally. The extent to which this fall can be attributed to three strikes remains anyone’s guess.

In the first five years after three strikes came into effect 5248 offenders received a ‘first strike’ (that is, a “stage-1 conviction” under the three strikes sentencing regime), and 68 offenders received a ‘second strike’.

In the five years prior to three strikes, 5517 people were convicted of an offence where that conviction would have been a ‘first strike’ had three strikes been in force at the time, and 103 were convicted of an offence that would have been a ‘second strike’.

In addition, no-one was convicted of a third strikes in three strikes’ first five years, while four people were convicted of what would have been third strikes in the preceding five years, and two of them also racked up what would have been fourth strikes.

The bald numbers provide no evidence that the existence of formal strike warnings has a deterrent effect, and arguments about what caused. Though the numbers are low, the lack of third and fourth strikes could well be a consequence of incapacity, rather than deterrence – a second strike conviction means the offender is ineligible for parole, so result in longer times spent in prison.

In its response to me, the Ministry cautions against firm conclusions:

“Please note that although this data shows that reoffending has reduced since the Act came into force, there are several factors affecting numbers of convictions and hence people convicted over the 10 year period in question. These include changes in policing practices (for example, the Policing Excellence Scheme: www.police.govt.nz/about-us/programmes-initiatives/policing-excellence), an overall reduction in crime and a reduction in the number of people prosecuted and convicted from 2009 to 2014. This means that any reduction in offending cannot be solely attributed to the Sentencing and Parole Reform Act 2010.”

We’re now at the level where alternative explanations become more likely. Our first third strike (for offending leading a conviction since the five year period of comparison) is instructive. Raven Campbell was convicted of an indecent assault committed on a prison guard. A conviction for a crime committed in prison was always likely to be the first third strike. Few prisoners convicted of serious sexual or violent crimes will have had the opportunity to have committed a strike offence, been convicted and sentenced (probably to prison) then paroled, to be convicted of a new crime committed after the first, then serve every day of a second strike sentence (for which there is no possibility of parole) before being released involving to commit further serious offending, all within five years.

In addition to the Policing Excellence scheme suggested by the Ministry of Justice (in part, it created a greater Police focus on prevention), any number of other alternative explanations for reductions in recidivism rates for serious violent crime within five years of first conviction: random variation in offending levels, longer sentences for serious offending; changes to parole laws, or to the approach of the New Zealand Parole Board to parole decisions among others. are possible explanations for reductions in recidivism rates within five years of first conviction. We’ve also seen the rollout of extended supervision orders for child sex offenders, which started in 2004 (although child sex offences make up only a small proportion of serious violent crime, and tend to have low recidivism rates).

Establishing whether something like three strikes has had an effect on recidivism rates, or offending rates is hard. The bald numbers tell us little. It is something that could be investigated further, but would need the type of resources I do not have, and I suspect would also research agreements to enable access to information that would be otherwise be withheld under the OIA for reasons of personal privacy. Mostly, I’m just here to point out the problems with others’ arguments. Too many arguments about criminal justice focus on rhetorical effect, or run the risk of falling away when the crime rate changes by a little (if you’re on Twitter, follow Fordham Professor John Pfaff):

I can't take this much further, but there are some other slightly noteworthy notings from the recent OIA releases.

In explaining why it is difficult to come up with comparable data, the Ministry of Justice noted:

Under the Act, warning may be given either when guilt is established (which is usually when the conviction is entered) or at the sentencing date. However, as the time of the giving the warnings is at the discretion of the judge, it is impossible to estimate the timings of when warnings would have been given pre the implementation of the Act.

This accords with how I’ve seen the Act occasionally work in practice – warnings sometimes aren’t given upon conviction, but this isn't a correct statement of the law. Section 86B of the Sentencing Act is clear:

86B Stage-1 offence: offender given first warning

(1) When a court, on any occasion, convicts an offender of 1 or more stage-1 offences, the court must at the same time—

(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning…

When a warning is given is important, because an offence will only receive a higher-level warning (with the consequent parole and sentencing effects) if it is committed after the warning was entered. It will not be common, but there will have been instances where a defendant has avoided more serious strike consequences because a judge has exercised the discretion as to timing that the Ministry of Justice says they have.

In news from a wholly unrelated OIA request I made of the New Zealand Defence Force earlier in the year, I can confirm that former Navy Commander Philip Wiig, who was convicted at a Court Martial of an indecent assault, did not receive a first warning when he was convicted, or sentenced. Although indecent assault is classed as a “serious violent offence” under the Sentencing Act, not all parts of the Sentencing Act apply to Courts Martial, and the three strikes bit is one part that doesn’t. This would apply even if they charge faced was more serious: no conviction at a Court Martial has strike consequences. Now, I oppose three strikes, but I can’t see a particularly good argument that someone with a conviction for a strike offence following a Court Martial should be in a better position if subsequently convicted for further serious offending (whether in a civilian court, or a military one).

Far from the biggest deal, but I like my laws to be consistent where possible, even when I oppose them.