Friday, 24 November 2017

Pike River Mining Supreme Court Decision through the Lens of Restorative Justice

The recent decision of the New Zealand Supreme Court about the decision to offer no evidence in a prosecution of the mine manager, has attracted considerable publicity. The decision can be found at Anna Elizabeth Osborne And Sonya Lynne Rockhouse v Worksafe New Zealand
 [2017] NZSC 175 [23 November 2017].

The decision starts by pronouncing that "it is contrary to the public interest and unlawful for an arrangement to be made that a prosecution will not be brought or maintained on the condition that a sum of money is paid." Justice Ellen France summed up at the very end of the decision by commenting that the decisive feature of the case was that it was simply not possible to put any distance between the basis for payment of the money and the decision to offer no evidence.

The Pike River families who brought the case were pleased with the decision because they felt that Mr Whittall should have been prosecuted. He had of course used the proceeds of his directors insurance to make an offer of a substantial sum of money to the families of the victims, and so the prosecution against him was struck out.

Apart from the fact that little attempt at restorative justice has been attempted to resolve the principal issues, this case does offer an interesting perspective on an aspect of restorative justice settlements where reparation may be offered. The purpose of reparation in this case was to avoid a conviction and the consequent sentence. But I suggest that the problem began when the reparation was negotiated without considering whether this should be done through a process of restorative justice conferencing. This left the families of the victims feeling the hurt of their tragic losses but an impression that the consequences of the many failures by the mine operators were left unpunished and therefore they did not obtain justice in the case. So the failure to involve the families in the discussion about the decision to offer no evidence resulting in reparation but no justice illustrates the need to carefully prepare for a restorative justice process.

The decision indicates that the proposal to settle the case did come with an offer by Mr Whittall to meet with the families to convey his personal empathy and condolences. There does not seem to have been an apology, although that is not mentioned.

Howard Zehr (cited from The Little Book of Restorative Justice) emphasises that crime is a violation of people and of interpersonal relationships, and that violations create obligations. The central obligation is to put right the wrongs. It is necessary to address the harms and the causes. So the decision to try to resolve the possible prosecution by payment of money and a meeting with the victims had some elements of an attempt to put right the wrongs. Zehr says that an effort to put right the wrongs is the hub or core of restorative justice. Putting right involves addressing the harms that have been done, and addressing the causes of the harms, including the contributing harms. Because it is victims who have been harmed, restorative justice must start with victims but is ultimately concerned about restoration and reintegration of both victims and offenders as well as the well-being of the entire community.

This is where the process became derailed. The company running the mine closed down and ultimately went into liquidation. Reading the press reports of the time, it is clear that the families felt that this was somehow an avoidance of the moral obligations. So Mr Whittall as the director was the person seen as the offender, and who had therefore the obligation to put matters right. At that time it was the Department of Labour who was responsible for prosecuting work safety offences. They therefore were in the role of a prosecutor. A prosecution process has nothing to do with addressing the harm that has been done or the cause of the harm. A Royal Commission was established to address the causes of the accident, and the families were invited to participate. There had been some attempts to engage with the families, with varying degrees of success. But a proper restorative process would start with the victims and work with them to address the harm. For very human reasons they would be seeking to find the fault behind the disaster, but the liquidation of the company and the  payment organised by Mr Whittall's lawyers appear to have been taken as avoidance of any fault or blame. There appears to have been little inclusive or collaborative processes and a frequent theme of the press reports interviewing the families, is that they felt left out and marginalised. A good example is the issue of entry to the mine to recover the bodies of the victims. It is clear the families felt excluded by a bureaucratic process, and that they have welcomed the commitment by the new government to enter the mines. Zehr talks about the need for respect, and it is clear that the Pike River families did not feel respected as part of the process.

So does the Supreme Court decision affect the restorative process where reparation may be part of an agreement that a charge not be prosecuted to a conviction? The court set out very clear guidelines, but did not discuss whether reparation in a restorative justice context would be affected by the principle that you cannot buy an acquittal. The difference may be the collaborative process of restorative justice, which was not an element in this case.

So how should this have been handled? A collaborative consensus driven process to looking at the causes, addressing the harm and addressing how the victims could be restored? I leave that thought to the politicians who sadly thought more of fault avoidance than a more holistic approach.

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