Garth George: Dame Sian has her finger on the pulse

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Such is the sacredness with which traditionalists view the constitutional separation of the Judiciary and Parliament that it was inevitable the Chief Justice, Dame Sian Elias, should be criticised for the contents of her address to the Wellington legal fraternity.

But what a shame it is that the defensive, knee-jerk reactions of politicians and the outrage expressed by one-eyed and ignorant lobbyists received far more space and time in the media than Dame Sian's words themselves.

For her dissertation on crime and punishment in New Zealand in the 21st century, which runs to 15 closely typed A4 pages, is a masterpiece of analysis, and any Kiwi with even a minor interest in one of our most vexed social issues should read every word of it. It's on the internet.

Dame Sian was delivering the 2009 Shirley Smith address, and how the redoubtable Shirley Smith - one of the nation's first female barristers who faced down the male-dominated legal establishment - would have applauded Dame Sian's arguments.

Dame Sian based her address on a 1999 letter to an editor penned by Mrs Smith expressing opposition of a bill increasing sentences. She wrote:

"To provide only a prison at the bottom of the cliff is not a solution. Criminals will just go on falling into it, at great cost to the community.

"We have to find out why blameless babes become criminals. Writing as a lawyer who has read many probation reports I have no doubt that their life experience has been the cause.

"Society creates criminals; society must look at the conditions that cause them."

As if sensing what was to come, Dame Sian told her audience: "I've taken 'blameless babes' as my working title, although I suppose I will have to alter it because it is bound to be misrepresented along the lines of 'Chief Justice says murderers are 'blameless babes'."

As it happened, that wasn't what was misrepresented in the media - it was her suggestion there were other ways to deal with some criminals than to keep them locked up.

That aside, Mrs Smith's proposition remains, 10 years on, as Dame Sian put it, "a critical question we have to address".

"What turns 'blameless babes' (as all criminals once were) into the stuff of nightmares? I do not mean to suggest that a lot of serious thinking has not been given to this topic.

"But what is clear is that it isn't enough to leave such thinking to those working in the criminal justice system. We have to get wider social engagement and buy-in if we are to find answers."

Dame Sian is right. Crime and punishment are social issues that affect almost every one of us in our lifetimes. It is only sensible, then, that society as a whole should be involved in finding solutions.

But we won't. Because it is the nature of most of us to believe that such things are someone else's problem.

Dame Sian said a substantial shift in the focus of criminal justice had been the emphasis on victims of crime, which placed victims at the centre of the system.

"There is no question of going back to the days when victims were largely irrelevant in criminal proceedings," said Dame Sian, "But I would like to see some serious assessment of whether the emotional and financial cost of keeping victims in thrall to the criminal justice processes (through sentencing and on to parole hearings) does help their recovery from the damage they have suffered, or whether they are re-victimised through these processes."

Spot on again. It has worried me for years that the concentration on victims of crime takes the detachment of public ownership away from justice and turns the clock back to the days of private vengeance.

Having canvassed in detail some of the major changes to the justice system in recent years, Dame Sian points out that prison numbers continue to rise.

Any policy to reduce sentences had so far been politically difficult although "I think it is a nettle the public would want to be grasped".

"We cannot blame successive governments. They have responded to high public anxiety. And indeed the high level of crime is a source of proper public concern and political attention. Channelling public anxiety into effective strategies is not easy when the first task is to get across the unwelcome message that there are no simple or quick answers ..."

Achieving a reduction in the number of prisoners required concerted strategies. The five she would opt for, she said, were: community education, intervention strategies for those at risk [of becoming criminals], better support for probation, increased attention of mental health and substance abuse, and a frank policy of being prepared to reduce the prison population by management.

Irrespective of the propriety or otherwise of Dame Sian's remarks, she deserves, as our premier jurist, to be listened to.

- NZ Herald

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