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Reflections on the Roles of Apex and Intermediate Courts in New Zealand
Get PDFThe Supreme Court of New Zealand replaced the Privy Council as New Zealand’s final appeal court in 2004. Appeals to the Privy Council in the general civil jurisdiction lay as of right, but all appeals to the Supreme Court were to be by leave. The legislature chose not to change appellate structures and pathways which had long been designed to limit the number of appeals by leave. Rather, it was hoped that the Supreme Court’s broader jurisdiction and accessible location would allow it to meet its objectives as a final appellate court.
The Supreme Court has done much to develop law for New Zealand conditions. But the number and quality of leave applications constrain its substantive output, which has apparently stabilized at a level substantially lower than was predicted in 2004. The underlying causes can be located in appellate structures and pathways which constrain demand and also affect the Court of Appeal.
This paper examines those constraints and the Supreme Court’s attempts to address them. It identifies consequences for the distribution of law development and supervision of precedent as between the Supreme Court and Court of Appeal. The paper is a call for dialogue rather than a prescription for reform, but it does suggest that consideration should be given to adjusting pathways to improve the range and quality of work decided by panels of three and five judges. It argues that courts in an appellate hierarchy must pursue a collaborative approach if law is to be developed in a reasonably timely and cost-effective way in the common law case-by-case tradition, and it suggests that is best done through appellate restraint and conservative application of the rules of precedent.
Keywords: appellate courts; distribution of responsibility for precedent; appeal pathways and leave criteria
Histories of Legal Aid: A Comparative and International Perspective Edited by Felice Batlan and Marianne Vasara-Aaltonen
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Death, Burials and Funerals: Grieving in the Shadow of Covid-19
Get PDFCovid-19 has radically upended death and dying. Restrictive measures aimed at containing the spread of infections have resulted in a simplification or abandonment of many social and cultural practices related to burials, funerals and mourning. This article aims to examine how the pandemic has affected burials, funeral practices and mourning. It analyses the extent to which the restrictions balance the need to protect public health and the opportunity for mourners to honour the deceased. A consideration of the implications for surviving families and the wider community is important for future pandemic preparations.
Keywords: pandemic; death; burial; funeral; grief; mourning
What is the Role of a Legal Academic? A Response to Lord Burrows
Get PDFIn his Lionel Cohen Lecture 2021 Justice of the Supreme Court Lord Burrows argued that the complementary role that academics and judges play is being threatened by a trend in legal scholarship away from practical (or doctrinal) legal scholarship towards one more concerned with ‘deep theory’ and with reasoning from disciplines other than law. This present article challenges some of the assumptions upon which Lord Burrows’ argument is based. In doing this, it asks why legal academics should see their role as one in which they are under a duty to aid the legal profession and the courts, especially given the present expectations about what amounts to good research, adequate methodologies and epistemological sensitivity. It also challenges the distinction between practical legal scholarship and ‘grand theory’. What is needed, the article suggests, is not less grand theory but a greater understanding both of the nature of disciplines and of some of the epistemological conundrums that attach to law as a body of knowledge.
Keywords: Burrows (Lord); epistemology; Frank (Jerome); hermeneutics; judges; legal scholarship; methodology; theory
The Family Court in England and Wales: An Effective Safety Net?
Get PDFThis article contributes an insight into how the decline of legal aid in family law has transformed the role of the family court in England and Wales, and how this is, in turn, is affecting the sustainability of the family justice system as a whole. It will begin by setting out some of the pressures that have historically characterized the legal aid system in England and Wales, focusing specifically on how family law advice and representation has been uniquely and particularly targeted by a host of intersecting political efforts to minimize people’s use of family lawyers and the family court when their relationships break down. The article will then turn to consider the consequences of this for the family court. Here, the article will reflect upon how these pressures have constrained capacity and altered working practices within the family court. In sum, it will examine how the decline of legal aid has impaired the extent to which the family court can effectively operate as a safety net for families in crisis, and what the future may hold for family justice.
Keywords: legal aid; access to justice; family law; litigants in person
The Post Office IT scandal – why IT audit is essential for effective corporate governance
Get PDFThe Post Office Horizon scandal is possibly the most serious corporate failure in the United Kingdom in living memory, and possibly for more than a century. This is because of its disastrous consequences for hundreds (perhaps thousands) of individuals who were wrongly prosecuted by the Post Office and who lost their livelihoods, and often their homes, on the basis of incomplete and misleading evidence from its Horizon computerized accounting system. That corporate failure has given rise to the most extensive miscarriage of justice in English legal history, with an unprecedented number of wrongful convictions now in the process of being reversed.The Post Office Horizon scandal had many features and causes, but a significant contributory failure was that of corporate governance. There were many warning signs over the years, which should have been acted upon by Post Office Internal Audit and in particular, by specialist IT auditors. The evidence is clear that the Post Office failed to live up to its commitment to corporate governance, and that this failure was neither detected nor acted upon by the government, if civil servants and ministers were aware of the failure, until too late. An effective IT audit function would have contributed significantly to a prevention of the scandal.
Index words: Post Office, Horizon, Fujitsu, IT audit, internal audit, corporate governance, Three Lines of Defence, Institute of Internal Auditors, IIA, AICPA, IAASB, SSAE 16, SSAE 18, ISAE 3402, SAS 70, ISAE 3000, SOC-1, SOC-2, SOC-3, Trust Services Criteria, processing integrity, Justice for Subpostmasters Alliance, Ernst & Young
 
Implementing the electronic signature law in Tanzania – successes, challenges, and prospects
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In a bid to implement the Electronic Transactions Act 2015, Tanzania initiated the adoption of a National Public Key infrastructure (PKI) framework. However, the plan has not been executed as expected because of certain gaps and ambiguities in the laws. This article examines the existing laws providing for the legal validity, admissibility and enforceability of electronic signatures especially using PKI; identifies the weaknesses of the existing laws and recommends new laws relevant to PKI that should be considered, and their rationale.
Index words: Tanzania, electronic signature, PKI, cryptography, certificatio