Balancing state needs with individual rights

Youth justice and DNA sampling are two of law researcher Nessa Lynch's areas of focus.

Dr Nessa Lynch

At what age can a person be prosecuted for murder in New Zealand? When Dr Nessa Lynch poses this question to students in her youth justice course, some guess 18, while others suggest 16. In fact, it’s 10.

“My students always want to talk about the ages at which children are allowed to do things or are held responsible for what they do,” says Dr Lynch, a Senior Lecturer in Victoria University of Wellington’s Faculty of Law.

“At 10, you can be criminally liable for murder but you can’t drive a car, buy a beer or give consent to medical treatment.”  

Dr Lynch’s research focuses on how the justice system balances the interests of the state with the rights of the individual. It contributes to Victoria’s ‘Advancing better government’ area of academic distinctiveness.

She has a particular interest in youth justice, a field she discovered serendipitously while studying for her postgraduate degree in her native Ireland.

When an elective in legal history was unavailable, Dr Lynch picked one on youth justice instead. She was immediately hooked on the subject’s mix of theoretical questions, actual law and real human issues.

“I often talk with my students about how the law is not always aligned with the latest research on brain development,” says Dr Lynch.

“The law system is partly about retribution, but young children don’t appreciate the consequences of their actions. We also hold older teenagers completely responsible for what they do, yet there is now lots of research showing children aged eight or nine may be more capable of concrete thinking and decision-making than 15- to 16-year-olds.”

Under New Zealand’s current youth justice system, children aged 10 and 11 can be charged only with murder and manslaughter. From the age of 12, children can be charged with other serious criminal offences as well as murder and manslaughter, while young people aged 14 and over can be charged with any offence.  

It may be tempting to assume treatment of young offenders has become more lenient over the decades, but Dr Lynch compares the current approach with the penalties imposed for the murder that inspired the film Heavenly Creatures. Juliet Hulme, 15, and Pauline Parker, 16, spent about five years in prison after being convicted of murdering Parker’s mother in 1954.

Now, a young person convicted of murder in the same circumstances would face a presumptive sentence of life imprisonment, with a mandatory non-parole period of a decade behind bars.

While judges’ ability to use discretion in sentencing young people for serious crimes has been restricted since the Parker-Hulme case, fewer young people accused of less serious crimes end up in court. About 80 percent are dealt with by the police through the community-based diversion process.

“It’s a very pragmatic approach, which tends to be the way New Zealand does things,” says Dr Lynch.

“The good thing about diversion is young people don’t get a criminal record and don’t get labelled as criminals. But while New Zealand police are good, we leave it up to individual officers to investigate each offence and decide on the punishment. It’s a bit dangerous to rely on a system that has no real transparency.”

DNA sampling is another of Dr Lynch’s research interests. With Dr Liz Campbell, from Durham University in the United Kingdom, she carried out the first-ever critical analysis of New Zealand’s DNA collection and retention law.

New Zealand was an early adopter of DNA forensic technology, with the Criminal Investigations (Bodily Samples) Act 1995 giving police the power to collect and use DNA to investigate crimes, and to use DNA in criminal proceedings. The Act also regulates two databanks containing DNA from about 150,000 people who have been charged with or convicted of offences.

Police officers once had to apply for a judicial compulsion order to collect samples, but amendments to the Act in 2003 and 2009 gave them wider powers to take samples from suspects they intend to charge.

Dr Lynch says New Zealand’s approach is relatively invasive in international terms. “It’s important to balance the police’s interest in preventing crime with a suspect’s rights. For example, might people one day be denied health insurance on the basis of a predictor gene discovered when police took a DNA sample?”

Another issue is New Zealand has no independent oversight of its DNA databanks. While other countries have independent committees to ensure samples are stored or destroyed as required by legislation, New Zealanders must simply trust the rules are being followed.

In a monograph about the research published by Victoria University Press in 2015, Dr Lynch called for a government review to determine whether police had been given too much power to collect and retain DNA samples and whether our databanks needed independent scrutiny.  

Shortly after the monograph was published, the Government asked the Law Commission to carry out a comprehensive review of the Act. Dr Lynch is advising the Commission on the review.

For Dr Lynch, one of the attractions of working at Victoria is the University research community’s close ties with government and the public sector.

“I can see the Beehive from my window,” she says. “I really like how in Wellington you can phone MPs and ask if they could meet you for a coffee, and they will.”