Tuesday, 28 July 2009

Sentencing and the Chief Justice

There has been a great deal of comment about the recent speech given by the Chief Justice on the topic of overflowing jails. What is curious is that the attacks are not on the common sense of her suggestions but suggesting that it was not proper for her to make suggestions of policy about criminal sentencing. The predictably shrill response from the Sensible Sentencing Trust and David Garrett, the spokesperson in Parliament, seem to overlook that she has effectively been chief executive officer of the bench for many years, and has a great deal of empirical evidence about the efficacy of various forms of sentencing. The Sensible Sentencing Trust on the other hand appears to have a ghastly unforgiving attitude that comes close to a totalitarian state such as North Korea. At one stage Russell Fairbrother, formerly a labour MP, suggested we needed a Really Sensible Sentencing Trust. The groups who work with prisoners such as the Salvation Army and the Howard League are rarely consulted by the media. I despair of the narrow and Draconian view of sentencing but do not expect that the sometimes lazy news media are prepared to look more deeply at why judges sentence in the way that they do. There does not seem to be any room for humanity or redemption.

Saturday, 18 July 2009

Hard legal jobs

I read the NZ Herald article http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10585131 about Jonathan Moses, who has just returned from prosecuting in Rwanda. For every lawyer who is made the subject of derision there are also those who take on often poorly paid jobs where you can achieve some real standing and recognition. The trauma of just reading the description of the massacres, let alone listening to the evidence, would shake the strongest will. I have tremendous respect for him and his courage and selflessness in taking on this role. He is the role model for lawyers rather than the slick commercial lawyers who take pride in their latest IPO or deal. Kia kaha! He deserves a comfortable slot somewhere in New Zealand-I hope he is on someones list!

Wednesday, 15 July 2009

I have been following the body "snatching" case in the Christchurch High Court. There is an interesting conflict between Pakeha law and Maori tikanga. It is well established law that the executor of an estate has control over the body, and that she would have the right to determine the method of burial. Against this, it is also not uncommon among different members of a whanau or hapu in Maori families to dispute the place of burial. Clearly Maori tikanga has a diffrent set of concepts as to ownership os the body and disposal after death. The sad factor is that there was no real attempt to mediate before the body was taken up north. Cross cultural mediation is a challenging area that will dig right into the comfort zones for both parties. But my thoughts are for Justice Fogarty, who will know that he will have to decide a matter which will leave one party very unhappy. There is no "right" answer.

Tuesday, 14 July 2009

Today I presented a paper on my Kazakhstan experience to the Wellington AMINZ breakfast meeting. It was well received, with thoughtful comments and questions. In preparing the paper, I reflected on the use of ADR in a society where mediation may be seen as a weak approach to problem solving. Perhaps we need to sell mediation as the adult approach, rather than the combative sport of litigation.

Friday, 10 July 2009

I have just been advised that I have been approved as a Fellow in Arbitration by the Arbitrators and Mediators Institute (www.aminz.org.nz). I am now a Fellow in both Arbitration and Mediation.