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You are here: Cabinet PapersReport Back on Unintended Consequences of Discretion in the Criminal Justice System - Recommendations for Further Research

Paper 22: Effective Interventions: Report Back on Unintended Consequences of Discretion in the Criminal Justice System - Recommendations for Further Research

Proposal

  1. This paper responds to Cabinet's direction for a report to Cabinet Policy Committee by 31 March 2007 on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system are exercised, taking into account ethnicity (particularly Māori and Pacific peoples) [Rec 3, POL Min (06) 21/5; Rec 7, CBC Min (06) 22/12 refers].

Executive summary

  1. The criminal justice system rests on the application of discretion and it is vital that the public have confidence in the evenness, consistency, and unbiased application of that discretion. There are already a range of checks and balances across the justice system to ensure consistency and fairness, but given the over-representation of Māori and Pacific peoples in the criminal justice system it is reasonable to question whether these checks and balances are working as well as they should.
  1. I propose that within 2007/8 baselines the Ministry of Justice develop and consult on a detailed research proposal to assess the extent to which unintended consequences of discretion across the criminal justice system may be influenced by bias on the grounds of ethnicity, particularly for Māori and Pacific peoples. The final form of the programme should be approved by the Minister of Justice and other relevant Ministers.
  1. The companion paper Effective Interventions: Programme of Action for Māori recommends research to: assess the true extent of Māori and Pacific peoples' over-representation; expand the current disaggregated Māori apprehensions report; and conduct a qualitative pathways analysis with Māori males and females, and Police. This research will also assist assessing the potential magnitude of any bias effects, meaning that other more focussed research projects could be conducted in future.
  1. I also propose that the Ministry of Justice carry out a literature review of effective practice internationally in identifying and responding to the risk of bias in criminal justice system decision-making.
  1. Agencies across the justice sector have also identified the current state of knowledge about the impact of discretionary decisions on their areas of responsibility; any potential research gaps; and current or planned work to address bias and options to improve consistency of decision-making.
  1. There is significant awareness among justice sector agencies of the need to build constructive working relationships with iwi and other Māori organisations, Pacific communities and other ethnic groups. Initiatives in this area should continue as they help to reduce perceptions of bias and mitigate bias in practice.

Background

  1. In agreeing the Effective Interventions (EI) series of measures, Cabinet expressed a particular concern over the degree to which Māori and Pacific peoples are over-represented in the criminal justice system. Cabinet therefore directed Te Puni Kōkiri (TPK), the Ministry of Justice and the Ministry of Pacific Island Affairs to develop a Programme of Action relating to Māori xxxxxs9(2)(f)(iv)xxxxx, and relating to Pacific peoples xxs9(2)(f)(iv)xx [CAB Min (06) 27/3A refers]. Cabinet also directed officials to ensure that the various EI initiatives are implemented so as to deliver results to Māori and Pacific peoples.
  1. In addition, Cabinet sought further advice on the impact of the use of discretionary powers on the representation of Māori and Pacific peoples in the justice system. Officials were directed to report back to POL by 31 March 2007 on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system are exercised, taking into account ethnicity (particularly Māori and Pacific peoples) [Rec 3, POL Min (06) 21/5; Rec 7, CBC Min (06) 22/12 refers].
  1. Cabinet also agreed that work by agencies to address bias in the use of discretion and options for improving the consistency of decision-making in key discretionary areas be identified within the wider EI work programmes to develop an empirical evidence base about practical initiatives that address Māori and Pacific peoples' offending [Rec 4, POL Min (06) 21/5 refers].

The importance of identifying and responding to bias in the exercise of discretionary powers

  1. The entire criminal justice system rests on the application of discretion. It is therefore vital that the public have confidence in the evenness, consistency, and unbiased application of that discretion. There are already a range of checks and balances across the justice system to ensure consistency and fairness in the use of discretionary powers, including appeals against judicial decisions, standards and manuals to guide the work of police officers or youth workers, and cultural awareness training.
  1. However, in light of the over-representation of Māori and Pacific peoples in the criminal justice system it is reasonable to question whether these checks and balances are working as well as they should. Available literature and anecdotal evidence gathered from offenders and programme providers as part of the Māori and Pacific peoples' Programmes of Action indicates that perceptions of bias in the exercise of discretionary powers are significant enough to suggest that how discretion is exercised in the sector is problematic. The sheer scale of the over-representation among Māori and Pacific peoples creates legitimacy issues for the entire justice system.
  1. I also note that a "trusted justice system" is a third tier outcome in the justice sector outcomes framework. A working definition of the trusted justice system outcome is: "In order for agencies within the Justice System to successfully uphold and enforce the law, it is important that they enjoy the confidence and respect of individuals and groups living both outside and within New Zealand." Research into the likely extent of bias, followed by effective responses to mitigate identified bias, will contribute to achievement of this outcome.
  1. Completion of further research, however, is no reason to delay initiatives by justice sector agencies to address perceived bias and mitigate the risk of any actual bias in the meantime. Justice sector agencies are already aware of the need to mitigate the unintended consequences of discretion as a contributory factor in the disproportionate representation of Māori and Pacific peoples in the criminal justice system, and are working on a range of initiatives to improve both perceptions of bias and the quality of decision-making.
  1. There is scope to draw on existing domestic and international research and other evidence regarding effective responses to actual or perceived bias to support and enhance current initiatives.

Further Research

  1. Officials have reviewed available research findings to identify areas where further research into the existence and extent of bias is most likely to lead to useful results.
  1. The summary of ethnic differences noted in the previous paper Unintended Consequences of Discretion in the Criminal Justice System is reproduced on the next page:[1]

Ethnic disparities from apprehension to prison, 2003 (rates per 100,000)

European

Māori

Pacific

Total NZ

Police apprehensions[2]

3,500

15,500

6,600

5,300

Police prosecutions

2,000

9,700

4,000

3,200

Remand in prison

10

110

40

30

Convictions

1,400

6,300

2,700

2,400

Custodial sentence

110

770

250

210

Sentenced in prison

70

440

220

130

Data are expressed per 100,000 of estimated ethnic populations, and have been rounded.

  1. Combining Police, Courts and Corrections data for 2003 (the latest year for which Corrections data are available), officials have tracked, in a very approximate fashion, ethnic disparities from apprehension through to custodial sentence and imprisonment. The main points that emerge are:
  • adjusting for the size of different populations, ethnic disparities in the criminal justice system are striking. They begin with Police apprehension and (for Māori) widen further at sentencing;
  • adjusting for the size of different populations, about 5 times as many Māori as Europeans were apprehended, prosecuted and convicted; 9 times as many were remanded in prison awaiting trial; and nearly 7 times as many were given a custodial sentence or were serving prison sentences; and
  • adjusting for the size of different populations, about twice as many Pacific peoples as Europeans were apprehended, prosecuted, convicted, or given a custodial sentence; and 3 times as many were remanded in prison awaiting trial or are serving prison sentences.
  1. This information, while based on aggregated data, provides at least a small amount of evidence that the cumulative effect of discretion in the criminal justice system could be contributing to disproportionate outcomes for both Māori and Pacific peoples.
  1. Research into the area of bias in the New Zealand criminal justice system is limited and at times contradictory. I consider that research across the system would assist to clarify the debate and assist departments to target appropriate resources to address any bias that might be found.
  1. I propose that Cabinet agree that further research on the impact of the way that discretionary powers in the criminal justice system are exercised should involve a whole-of-system approach that enables officials to identify the various points of potential bias throughout the system, and the potential impact that bias has on Māori and Pacific peoples.

Process to develop a research project for 2008/9 Ministry of Justice Work programme

  1. If Cabinet agrees to further research, considerable work will be required to develop and design the research project. I propose that the Ministry of Justice carry this out within 2007/8 baselines. Aside from designing the research project, officials will also consider how the actual research could be funded.
  1. The research design will need to cover:
  • Participants - people apprehended/people having police contact but not apprehended
  • Methodology - e.g. interviews, observation, statistical analysis (most likely combination)
  • Statistical design - e.g. so that behavioural influences can be allowed for
  • Monitoring - the potential to monitor "discretion" on a repetitive basis
  • Sample size, locations
  • Duration - timing of milestones
  • Human resources (project leadership, skilled researchers, interviewers/observers
  • Form of report and process e.g. draft report for comment then finalise
  • Consultation - with departments and other stakeholders
  • Communications management and publication in different formats
  • Cost - this could include different cost options for different sample sizes or methods, implications for degree of confidence in findings.
  1. The Ministry of Justice would lead the development of the detailed research proposal, in consultation with justice sector agencies, Te Puni Kōkiri and the Ministry of Pacific Island Affairs. The Ministry would also consult with researchers with expertise in this topic who could assist with research design. The proposal should be finalised for Ministers' consideration by 30 October 2007.
  1. If Cabinet agrees to further research I propose that the final research proposal be approved by me, as Minister of Justice, in consultation with the Ministers of Police, Corrections, Social Development, Māori Affairs and Pacific Island Affairs.

Effective responses to perceived and identified bias - drawing on current knowledge

  1. New Zealand is, of course, far from unique in identifying the potential for bias to adversely affect criminal justice systems. The United Kingdom, the United States, Canada and Australia, among others, have identified bias as a significant issue and worked on strategies to address both perceived and identified bias.
  1. It is proposed that the Ministry of Justice also carry out a literature review of effective practice in New Zealand and internationally in identifying and responding to the risk of bias in criminal justice system decision-making. The Ministry should publish the results of this review by 30 December 2008.

Related research into the causes of offending

  1. The companion paper Effective Interventions: Programme of Action for Māori recommends the following research to be led by the Ministry of Justice in consultation with Te Puni Kōkiri:
  • An assessment of the extent of Māori and Pacific peoples' over-representation once socio-demographic and other variables are taken into account (including an update of the 1999 work by Triggs);
  • Expansion of the disaggregated Māori apprehensions report with traffic dataset and 2006 data; and
  • Qualitative pathways analysis with Māori males and females, and New Zealand Police.
  1. This research should help to improve our understanding of the dominant drivers of re-imprisonment and reconviction statistics.
  1. These pieces of work should together help to pinpoint aspects of decision-making where bias may be a significant contributing factor in over-representation, once other variables have been taken into account. This information can be used to inform further research and/or policy development.

Summary of current work by departments relevant to mitigating bias (perceived or identified)

  1. The Ministry of Justice has consulted with agencies across the justice sector to identify:
  • the current state of knowledge about the impact of discretionary decisions on their areas of responsibility;
  • any potential research gaps they have identified; and
  • current or planned work to address bias and options to improve consistency of decision-making.

Police

Current and proposed work programme to address bias

  1. New Zealand Police support the need for further research on the impact of discretionary powers on different population groups.
  1. New Zealand Police first developed a Responsiveness to Māori strategy (RTM) in 1996 to help them work co-operatively with and be more responsive to Māori. RTM requires "measures that reach the structures, strategies, systems, management, staff and culture of the Police in such a way that it accounts for the needs and aspirations of Māori in all its activities, and in particular its core business".
  1. A number of major projects and initiatives have been developed and implemented under the RTM, in areas including homicides, sudden deaths, land occupations, Waitangi Day celebrations and general crime prevention. The appointment of iwi liaison officers has also better equipped the Police to liaise with Māori in a more culturally appropriate manner.
  1. Under the Responsiveness to Māori strategy, one aspect that New Zealand Police are considering improving is the assurance process around the use of discretionary powers. Police are also continuing to develop policies and guidelines to improve consistency of practice. Two examples of this are the review of the Police Adult Diversion Scheme, and work being done on Restorative Justice.
  1. A revised RTM strategy to 2010 is currently being developed. Key issues are the reassurance of Māori communities, integrity and accountability, and to increase the trust and confidence of Māori in working with Police.
  1. The State Services Commission is currently undertaking research to determine what drives New Zealanders' satisfaction and trust in the State Services, and the relationship between the two factors.  New Zealand Police are working with the Commission on a project that could use these drivers, based on the 'Canadian Citizens First' model that surveys both public satisfaction and agency client satisfaction.  Such a survey would include drivers such as fairness and has the potential to be rolled out across the justice and the wider state sector
  1. The Iwi-led New Zealand Māori Crime Reduction Strategy described in the Programme of Action for Māori companion paper should further enhance relationships.
  1. The New Zealand Police Pacific Responsiveness Strategy (PPRS) ensures that policing initiatives and activities work towards reducing Pacific peoples' offending, re-offending, victimisation and road trauma, and that the Police organisation is capable of delivering responsive outcomes for and with Pacific peoples.

Corrections

Current state of knowledge

  1. The Department of Corrections is completing a paper examining the over-representation of Māori in the criminal justice system. This includes a review of available research on the potential influence of bias as well as consideration of other risk factors which may influence participation in offending.

Potential Research Gaps

  1. The Department Of Corrections has an active research and evaluation programme that supports its programme of service improvement.  All research and evaluation activities give particular attention to outcomes for Māori and the factors that enhance or impede achievement of outcomes. 
  1. Where necessary that includes consideration of decision making processes.  Generally the focus is on improving decisions made by all parties, including offenders.  For example, as a result of evaluation of residential sex offender programmes Māori cultural components of those programmes were enhanced to support Māori offenders' decisions to undertake such programmes.

Current status and work programme

  1. The Department of Corrections has a number of initiatives that are specifically focused at improving relationships with Māori communities that draw on strengths in those communities that relate to the objective of reduced re-offending by Māori and can indirectly address the perception that the Corrections system is biased against Māori. These initiatives include formal iwi level partnership agreements and contracts with marae, trusts and incorporations for the provision of programmes.
  1. The Department is giving priority to a programme of action that directly improves expected outcomes for Māori, in this case reduced re-offending. Corrections' approach has been to place Māori at the centre of all new corrections policy, such as employment policy, education policy and community sentences.
  1. An example of this approach is a new project on prisoner induction. Policy staff will be working with front-line staff to identify prisoner induction processes that can work better for Māori prisoners so that they do not re-offend once they have finished their sentence.

Ministry of Social Development (Child Youth & Family Services)

Current state of knowledge

  1. Child Youth and Family staff become involved in the system when a young offender is placed in the custody of the Chief Executive of the Ministry of Social Development or is referred to a Family Group Conference (FGC) following a Police or court decision. CYF involvement, including FGC youth justice plans and interventions, are guided by the Children, Young Persons, and Their Families Act 1989. 

Potential Research Gaps

  1. MSD advise that there is no research underway on institutional bias based on ethnicity at the FGC level.  Bias would be difficult to measure as each FGC is unique. Where agreement is reached at FGC, the family (regardless of ethnicity) is of equal standing to the other FGC participants as agreed with the other participants.

Treasury comment

  1. The Treasury notes that no research is underway - or discussed - on institutional bias at the FGC level. FGCs are a key point of entry to the criminal justice system and, from what the paper does not say, perhaps a major gap in our knowledge about bias. The Ministry of Justice has been able to show that limited bias occurs in the sentencing outcomes of adults, despite the fact that each court case is unique. The Ministry of Justice may want to work with the Ministry of Social Development to assess what work can be done to assess whether bias occurs in FGCs.

Current and proposed work programme to address bias

  1. CYF has a number of initiatives, policies, procedures and training in place to ensure cultural awareness and use of appropriate, culturally responsive practices when working with people from diverse cultures, including Māori and Pacific Peoples. These include:
  • Māori and Pacific peoples' participation in reference groups and in consultation on training packages
  • Māori and Pacific guidelines within practice tools, assessments (RES and Towards Wellbeing) and CYF's Practice Framework
  • culturally-specific components within its youth justice coordinators comprehensive induction training, in particular coverage of CYF's Māori and Pacific strategies
  • culturally-specific components within its broader training programmes.
  1. As part of the implementation of the Youth Justice Teams, a full youth justice specific induction and training package will be developed and will include a cultural component. CYF is also currently considering a range of additional professional and practice mechanisms, such as peer supervision and local level learning forums for staff.

Developing a sector-wide approach

  1. To strengthen and affirm the initiatives identified above, I propose that Cabinet confirm its expectations of departments involved in the administration of the criminal justice system in terms of their ongoing responsibility to:
  • identify decision points where the exercise of discretion could have unintended consequences because of bias on the part of decision-makers;
  • take steps to mitigate any risks that are identified - from training, operational manuals, quality assurance and internal reviews; to trust-building initiatives such as community engagement and participation.

Consultation

  1. The Department of Corrections, New Zealand Police, the Ministry of Social Development (Child, Youth and Family), Te Puni Kōkiri, the Ministry of Pacific Island Affairs, the Ministry of Youth Development and the Treasury have been consulted. The Department of the Prime Minister and Cabinet and the State Services Commission and have been informed.
  1. The Ministry has also sought the views of the Law Commission, Office of the Ombudsmen, Legal Services Agency, and the New Zealand Bar Association. Further, information on the unintended consequences of discretion was also a theme discussed with community providers and prisoners as part of the programmes of action engagement process.

Financial implications

  1. The design and development of the proposed major research project into the exercise of discretion in apprehension decisions will be completed by the Ministry of Justice within existing baselines for 2006/7 and 2007/8.
  1. The Cross Departmental Research Pool managed jointly by the Ministry of Research, Science and Technology and the Foundation for Research, Science and Technology is a possible source of funding for further research in addition to departmental baseline funding. The Ministry of Justice will also investigate other possible sources of external funding. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxs9(2)(f)(iv)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Human rights

  1. Racially or ethnically based discrimination in the exercise of discretionary power contravenes the anti-discrimination provisions in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. The proposals in this paper are intended to minimise the risk of such discrimination occurring and are consistent with the Bill of Rights Act and the Human Rights Act.

Publicity

  1. A communications strategy will be developed as part of the research design.

Recommendations

  1. I recommend that Cabinet Policy Committee:
  1. note that Cabinet Policy Committee directed the Ministry of Justice to report to Cabinet Policy Committee by 31 March 2007 on the nature of any further research on the impact of the way that discretionary powers in the criminal justice system are exercised, taking into account ethnicity (particularly Māori and Pacific peoples) [Rec 3, POL Min (06) 21/5; Rec 7, CBC Min (06) 22/12 refers;
  1. agree that research on the impact of the way that discretionary powers in the criminal justice system are exercised should involve a whole-of-system approach that enables officials to identify the various points of potential bias throughout the system, and the potential impact that bias has on Māori and Pacific peoples;
  1. direct the Ministry of Justice to develop by 30 October 2007 a detailed research proposal to give effect to recommendation 2 in consultation with relevant agencies;
  1. agree that the Minister of Justice, in consultation with the Ministers of Police, Corrections, Social Development, Māori Affairs and Pacific Island Affairs may approve the detailed research proposal in recommendation 3;
  1. note that the Ministry of Justice will seek external funding to carry out the finalised research proposal, for instance from the Cross Departmental Research Pool managed jointly by the Ministry of Research, Science and Technology and the Foundation for Research, Science and Technology, or other sources;
  1. direct the Ministry of Justice to carry out, and publish by 30 December 2008, a literature review of effective practice in New Zealand and internationally in identifying and responding to the risk of bias in criminal justice system decision-making;
  1. direct justice sector agencies to:
  • identify decision points where the exercise of discretion could have unintended consequences because of bias on the part of decision-makers;
  • take steps, such as training, operational manuals, quality assurance, internal reviews and trust-building initiatives including community engagement and participation to mitigate any risks of unintended consequences of discretion.

Hon Mark Burton
Minister of Justice

Footnotes

1 I recognise that average trend data may mask important trends at a disaggregated level and caution against over-reliance on the aggregated data. Further disaggregation of data as part of the programme of action for Maori will improve the data available for assessing the representation of Maori and Pacific peoples in the criminal justice system.

2 An ‘apprehension’ means that a person has been dealt with by the Police in some manner (e.g. a warning, arrest, referral to youth justice family group conference etc) to resolve an offence.