The return to zero

I have no idea how the David Bain compensation bid is now going to turn out. But I don't see why that should stop me telling you about it

So, it appears my preparedness to reverse my earlier doubts about David Bain's chances of gaining compensation for wrongful conviction were slightly premature, and that I should have taken the advice of the ever wise and never intemperate Steven Price to "wait and see how convincing [Binnie's] reasoning is before we accept or reject his conclusions." My one sole comfort is that David Farrar took much the same line that I did - meaning that if I'm a mug, at least I'm in the finest and noblest of company.

Given this experience, you'd think the wise thing to do would be to learn from it and refrain from further comment on the issue of Bain's compensation claim until all the relevant information has been released to public scrutiny. But that would be to assume a wisdom that I patently fail to demonstrate on an almost daily basis. And, what is more, this is not a forum for wise activity. It is the internet, and I am blogging ... not doing Really Serious Journalism of a Very Important Nature.

So, without knowing anything more about this issue than has been reported in the media, I'm jumping straight back in boots and all.

Judith Collins' pretty remarkable dissing of Binnie's report on Bain's claim, as dramatically recounted by Tim here, makes me think that it must be really riddled with problems. If it were simply a matter of Binnie making some line-calls in a way that she personally disagrees with, then I don't think that she'd have taken this path. For one thing, it's creating a story where she doesn't need to. For another, as I'll get to later in the post, it's opening up the issue to the risk of litigation. That's why I tend to believe her when she says that:

[Binnie's] report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law. It lacked a robustness of reasoning used to justify its conclusions.

So, assuming the worst about Binnie's report (which, I accept, may be entirely the wrong thing to do ... but see my earlier comments regarding this not being Really Serious Journalism of a Very Important Nature), I'm also going to assume that Robert Fisher (who has been tasked with "peer reviewing" it) will decide that it simply is not fit for purpose as it stands. I note that Judith Collins has been at pains to state that this is Fisher's only role - he hasn't been brought in to provide her with an alternative assessment of Bain's guilt or innocence. Rather, he's simply meant to tell Collins whether or not Binnie's report on that matter is up to generally accepted standards of legal analysis and reasoning. And I think there's a pretty high chance that if Collins (and, assumedly, her MoJ advisers) thinks that the report is error-riddled enough to need review, then the reviewer is going to find sufficient errors to say the report is not to be relied on.

(Please note - that last paragraph was not a claim that there is some sort of conspiracy afoot, or an allegation that Fisher will just tell the Minister what she wants to hear. Instead, it's no more than a claim that the existence of a review in the first place is pretty strong evidence for believing that there really is a problem that the reviewer will find.)

Now, having made two largish assumptions that may very well turn out to be wrong - that Binnie's report is so flawed as to make his conclusions unreliable, and that Fisher will find this to be the case - what then? Well, in her press release, Collins states:

I will receive Mr Fisher’s peer review in the next day or so, which will be forwarded to Justice Binnie for his comment. When I hear back from Justice Binnie, I will take a recommendation to Cabinet on the next steps.

Taking into account the previously mentioned (and quite possibly wrong) assumptions, I can only see four possible outcomes emerging from this process.

  • First, Binnie might accept Fisher's criticism/comments and withdraw his report altogether - in effect, admitting he stuffed the whole thing up and that he wasn't up to the job.
  • Second, Binnie might revise his report in line with any criticisms/comments made by Fisher ... but retain his original conclusion that Bain is innocent on the balance of probabilities. (I assume we're all accepting that this is what Binnie concluded.) 
  • Third, Binnie might revise his report in line with any criticisms/comments made by Fisher ... and reverse his original conclusion on Bain's innocence.
  • Fourth, Binnie might reject Fisher's criticisms/comments (whether in a measured fashion, or an all out, toy-throwing fit of pique) and tell the Minister that his report stands as it is. 

Of these outcomes, I think the first is much the least likely. Judicial egos do not lend themselves to admissions of complete failure. The fourth is more likely - it seems perfectly possible to me that Binnie would effectively say to Collins "I've told you what I think about this and I don't really care what another ex-judge thinks, now you do with my report what you want". But if Binnie did say this, then I suspect it would have much the same outcome as him pulling his report altogether; Collins would recommend to Cabinet that Binnie's report simply can't be relied on and they should ignore what he has to say.

At that point, of course, Bain and his supporters would be back at square one of their compensation bid. Because if Binnie's report is taken off the table - either at his request, or at Collins' recommendation - then there is nothing for Cabinet to consider. Which means, I assume, that the whole compensation claim process has to begin again at the beginning ... with a new person appointed to study the case and provide advice to the Minister. Which then opens up some pretty thorny questions as to who is going to take up this particular poisoned chalice, and where they will come from. Would an overseas figure want the job, given Binnie's fate? What odds that Collins decides that as Fisher already has looked at the issues, he is the ideal person to take on the job of assessing Bain's innocence? 

So it may well be that the upshot of the peer review of Binnie's report is to dump us back where we were over a year ago, with the small difference of there being a different person sitting in the Minister of Justice's chair and deciding how to handle the compensation bid. Which may not make that much of a difference to the issue ... but I suspect probably will.

However, what happens if the second or third options eventuate, and Binnie amends his report to accommodate Fisher's criticisms/comments?

Well, if Binnie were to amend it to say that (having now considered the issues raised in Fisher's review) Bain is probably not innocent, we know Bain's team will be apoplectic with anger. And I'd imagine they'd be very keen to have this revised report quashed before Cabinet can make a compensation decision based upon it. Which then raises some pretty tasty administrative law issues. Most immediately, is the report reviewable at all by the courts? After all, the payment of compensation for wrongful imprisonment is meant to be a purely discretionary matter of prerogative, not a legal right that can be enforced. So what business does a court have with a report recommending that this purely discretionary power be exercised one way or another, no matter the procedural flaws that may have occured in the report's completion? 

Finally, there is the prospect of Binnie purporting to amend his report to take into account any criticisms/comments by Fisher, but sticking with his original assessment of Bain's innocence. What could Collins do then? Could she really send this revised report out for a second round of peer review? And what would happen if that review came back and said "Binnie has still got it wrong"? At what point would she just have to pull the plug on him altogether?

There we go. I think I've successfully covered all the bases so that whatever happens next, I can claim to have (sort of) predicted it. But just in case none of the above happens, you lot should not believe anything you read on the internet. Except for Tim's posts. He's a Real Journalist.