Justice Minister Paul Goldsmith Picks Fight With the Magna Carter

The right to be tried by a jury of your peers? Never heard of her.

Due to a quirk of law and the sheer importance of the right to trial by jury in our justice system, not only is the Magna Carta, an 800 year old piece of legislation, a part of New Zealand’s statutory legislation, it’s also considered a critical part of our constitution.

So it made me do a double take to read the headline, “Government considers raising threshold for getting a jury trial.”

We already have a relatively high threshold for giving someone the ability to select trial by jury in the criminal courts: their sentence must attract a punishment of more than two years. Two years is a significant period of time, and the primary reason it is set at that is that time specifically is that any sentence under 2 years is categorised as a short-term sentence, so offenders automatically receive parole after serving half their time. Any sentence above the two-year threshold becomes a matter for the parole board to determine, and they can choose to delay a prisoner’s parole until the end of their sentence.

This means that the maximum someone could be detained without a trial by jury is 12 months. Once the sentence tips above this threshold, an offender could quite realistically serve a sentence of two years or more, which is an unacceptable length of time to be imprisoned for off the decision of a single person.

Given the sharp jump between a sentence of “no more than 12 months” and “potentially more than two years”, setting the bar for trial by jury here makes sense. It means that category 1 and 2 offences are only given the option of trial by judge — so up to the level of common assault, and including first and second drink-driving offences. These crimes tend to be relatively straightforward, and are dealt with in a straightforward and streamlined manner in the courts.

Anything worse than that is a category 3 or 4 crime, and the sentence is long-term. Because this trial can see you get more than two years in jail, you have a right to trial by jury, a protection in our law that dates back to the Magna Carta of 1216:

No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, ¹ but by lawful judgment of his peers, or by the law of the land.

This is the only piece of the Magna Carter still recognised in New Zealand legislation, though its influence and development through jurisprudence is profound and informally recognised.

Its mechanisms today function very differently from what was originally intended. The Magna Carta was a treaty between King John of England and a group of rebel barons who sought protection for their persons against the reprisals of the King. It protected the populace — and most importantly to them, the barons themselves — from illegal imprisonment and guaranteed them the right to justice in accordance with the law, as decided by the “judgment of his peers”. ‘Peer’ at that time meant quite literally the other nobility.

Through English jurisprudence, this law has evolved from its original wording and intention — we no longer have legal slaves, civil rights have been extended to women, and we don’t “destroy” people in New Zealand for committing crimes anymore — but this clause is still the piece of legislative protection that defends New Zealanders against breach of their rights to justice by ensuring a trial by jury. The King has become the government and freemen become any natural persons, but the principle behind the clause and the treaty stands.

As a side note, this is a similar process to how Treaty of Waitangi jurisprudence has developed.

Goldsmith does raise some salient points around the problems we are having with jury trials slowing down our court system currently. This is absolutely something that needs to be addressed, and by him. In fact, his additional suggestion he put out “for feedback” is much more reasonable and would hopefully solve some of the issues:

Allow more time for when a defendant must decide whether they want their trial before a jury, or before a judge sitting alone.

Except this is not the first time Goldsmith has “put this out there”, and in fact he received some excellent feedback from Duncan Webb on the idea of upping the threshold for jury trials when he brought it up in April of this year:

Labour justice spokesman Duncan Webb said two years’ imprisonment was a significant deprivation of liberty and anyone at risk of that had a right to a trial by jury.

However, sentence indications could be a way to reduce the number.

“If the answer is to make it very clear that, for this crime, there won’t be a sentence of imprisonment, even though the maximum sentence is two years, that could conceivably work,” Webb said.

“[But] to require people who are possibly being sent away for two years to have a judge-only trial, I think that’s a serious undermining of fair trial rights.”

Webb said the idea of being judged by your peers or community was ancient and deeply embedded in our identity.

“The idea that, whatever we do, if it is judged by our community to be wrong then it is in some ways more legitimate than if it is one person sitting in judgment over us.”

Webb said he also wanted the justice system to move quickly, but making decisions about fair trials based on resourcing was wrong.

Obviously Goldsmith wasn’t very interested in listening to that one because he said at the time, “There’s about 20-odd things that we’re working on in order to reduce those delays, and once we’ve done those it’ll be another 20 things.”

But of those twenty things and twenty more again, (…forty? No wonder this government are struggling with budgeting), Goldsmith has presented us this solution. Interesting, that.

Although he words his suggestion carefully as “I’m considering whether the threshold is set at the right place,” the parliamentary press release makes it clear that the change being considered is a raise, and that it is in response to resourcing challenges.

So too did the Convenor of the Law Society’s Criminal Law Committee Chris Macklin.

“Finding a time to convene 12 random people takes a fair whack of time in and of itself.”

Anecdotally, he said, defendants elected jury trials because of a perception of receiving a fairer trial, a desire to get one’s “day in court, " and to go through a slower court process.

The current demand for jury trials required more resources.

“If people are determined to maintain the right to a trial by jury in the same form that we currently have it, then the only answer can be more resources.

“More courtrooms, more judges qualified to preside over juries and therefore more ability to turn over jury trials more promptly.”

And therein lies the old National problem.

Our underfunded services are creaking, and the government has already promised no new taxes (that they’ve broken), no rate hikes (that have happened), and that they will be responsible fiscal managers by taking money away from services like the justice system to distribute disproportionately to already-wealthy New Zealanders (Luxon thinks he’s running a business, not a country, and that’s what businesses do. Just look at our electricity dividends!).

Perhaps we do need to reimagine juries and make some changes to our system. But I somehow doubt judges will look generously upon the excuse “we are bad at scheduling and resourcing” as a justification for trampling over the oldest written right in our law.

Any legislation this government want to pass will need to seriously consider the fundamental rights they are taking away on the floors of Parliament for this to withstand judicial scrutiny, and it’s bizarre to me that this is a fight this government want to pick right now when they’re already under similar scrutiny for patch bans.

Is this a distraction tactic? An easy way for Goldsmith to pass his more reasonable suggestion of giving people more time to choose whether to be tried by a judge or a jury while diverting everyone’s attention away from how increasing crime under his watch? Or do this government really just not understand the constitutional conventions upon which our legal and political system sits?

It really could go either way.