Friday, 10 May 2013

REFLECTIONS ON CRIME AND PUNISHMENT: A Snap Shot of The Life and Career of Judge Barry Lovegrove

Often criminal law can exact a toll not only on defendants and complainants, but also practitioners.  People begin their careers with an enthusiasm to “do what is right” and to help “make a difference.” Then as the years go by, constant exposure to human misery often sees pessimism and cynicism begin to predominate. One person to whom this did not apply was Judge Barry Lovegrove.

Late last year Judge Barry Lovegrove hung up his robe. After a 50 year career encompassing experiences as diverse as practicing law in the Far North, teaching law at universities in Malawi and Hong Kong, engaging in Masters level research in East and Central Africa, prosecuting for the Malawi government, working in the International Labour Office Official in Geneva and, for 18 years, working as a District Court judge in New Zealand and, since 2002, solely as a panel convenor of the New Zealand Parole Board, retirement is well earned.

This background makes Barry well placed to offer views on the role of punishment and parole in the criminal justice system. He shared some of these insights in a talk he gave in the Law Society rooms in Panama Street, Wellington in December last year, entitled, “Crime and Punishment.”

Barry comes from convict stock, being a descendant of Benjamin Shadbolt of Datchworth, who - after narrowly avoiding the hangman's - was transported in 1845 to Van Diemen's land for 15 years for the theft of a bolt of calico and 11lbs of pork. Ben secured his ticket of leave after 15 years and came to New Zealand where he made good.

The fruit did not fall far from the tree for when Barry was just 5 years of age he was made to sit in the naughty chair in front of class at Three Kings Primary School in Auckland with his wrists bound together, by a Ms Needham – his crime, throwing an apple core in the playground.

Barry recounted feelings of helplessness and nausea from a few years later, in standard 2 at Westmere Primary while enduring the morning ritual strapping of a young Barry Whitmore for yet another failure to do his homework. Mr Jennings his habitual tormentor seemed incapable of any other course of action.

This blunt approach to punishment contrasted with an experience from Auckland Grammar when a prefect caught him flicking paper projectiles with a rubber band in the playground and sent him for the compulsory caning. Displaying early advocacy skills, Barry managed to talk the prefect out of the punishment and was let off with a warning. Barry advised that having been shown mercy he never flicked another paper projectile. The prefect was David Baragwanath. Barry observed of the young David, “how wise he was and how good sense, well argued, is calculated to produce a good result.” 

While at Auckland Grammar, Barry recalled speaking to Mount Eden Prison inmates through the barbed wire fence above the prison’s 'hard labour' quarry.  From the vantage point of the school grounds he once looked down sombrely through the fence at the temporary corrugated iron structure projecting through the roof of the prison to accommodate the extra height of the gallows where William Fiore had just been hanged.

Then aged 19 on his OE Barry recounted seeing three men hanging from a lamppost outside the exit to Addis Ababa airport on arrival in Ethiopia in 1959. A British matron had been raped and murdered at a foreign-aided hospital and someone had to hang in the traditional way at the scene of the crime. Barry spoke with beggars clustered outside the Central Post Office in Addis Ababa whose left hands had been hacked off for theft or both hands hacked off if repeat offenders.

Barry spoke of watching while wanting to turn away from the macabre spectacle of the public hanging before an audience of thousands in the Central Piazza of rebel leader Menghistu Gedamu and of how his legs kicked until finally stilled. His crime: seeking political change.

Arriving back in New Zealand, Barry started professional life as a law clerk in 1963 with Johnston, Prichard and Fee and then with Buddle Weir. In 1967, still with Buddle Weir, he graduated in Arts and Law, qualified as a barrister and solicitor. He then returned to Africa to teach law at Malawi University while completing, externally, a higher degree from the University of Reading in the United Kingdom. 

In Malawi, Barry taught law to young Africans and prosecuted part-time for Dr Hastings Banda's government. Barry recalls that Dr Banda had a fairly uncompromising view of the notion of opposition, “he liked to say, 'I have very few political opponents - and very many well-fed crocodiles'.”

A career in African academe came to an end in 1970, after being asked by the president to become Principal State Counsel. The first job being a 'double-jeopardy' prosecution of 5 young Malawians on 'show-case' charges of treason. The 5 men, like Menghistu Gedamu in 1959, sought political change from the oppression of a dictatorial political system.  The year before, the neighbouring Rhodesians hanged 4 young men at Bulawayo Prison for much the same sort of thing and Barry had no stomach for that kind of action. Like Godfather Don Corleone, an offer from Dr Banda, couldn't be refused. So Barry hightailed it under cover of darkness to South Africa en route to Geneva and the International Labour Organisation. While working there Barry gained an understanding of how politics and law - as the handmaiden of politicians sectional interests got in the way of progress and good ideas.

Barry then completed his Masters at Reading University while pulling pints part time at the Jack-of-Both Sides Tavern.  Having completed his  Masters Barry then spent ten years as a Lecturer in Law at the University of Hong Kong.

While lecturing he also helped open the first pub on Hong Kong Island - The Old China Hand – where he later met the retired executioner from Bulawayo Prison who had hanged the 5 young Malawians he declined to prosecute a decade before. This man had sent over 360 human beings plunging to their deaths over the course of his grisly career.

Returning to New Zealand in 1983 Barry sought the good life on a smallholding in the Hokianga, with his wife and young daughter. However, the reality of gorse, fencing and muddy fields saw Barry moving from stomping the sod, to practising at the bar based in Kaikohe and in David Lange's old office in Rawene. Barry quickly immersed himself in the affairs of his community being elected chairman of the Horeke Primary School Board of Trustees and legal adviser to two schools. He also played a role in the establishment of Ngawha Prison and establishing a jury system in the new Kaikohe District Court. Barry’s interest in having a prison at Ngawha was driven by having Ngapuhi prisoners closer to home where they could maintain their links with whanau. He recounted satisfaction in having all Youth Justice Family Group Conferences in the Far North held on marae.

Barry was appointed a District Court Judge in 1995. From 1999, Barry began his “love affair with parole” firstly as chairman of the Manawatu District Prison Board and, after 2002, as a panel convenor of the New Zealand Parole Board. Drawing both from his time on the bench and from a lifetime of observing traditional notions of punishment, he saw parole offering an alternative to tired old notions of punishment which were counter-productive and costly.

Barry views parole as “a thoroughly enlightened form of social engineering through rehabilitation and the promise of a better tomorrow.” Fuelled by his passion he relinquished his role as a bench judge in 2004 and carried on until 31 October 2012 exclusively as a Parole Board panel convenor. Over that time he estimates that he has spent more time in prison than many who have appeared before him and he has written more reviews of Parole Board decisions under section 67 of the Parole Act than any other panel convenor and has become even more convinced that rehabilitation trumps punishment every time. 

1 comment:

  1. It is an interesting observation that there are an increasing number of lawyers coming in to the system who do not want to work civil cases at district court level. The reason for this being their perception that the poor overall standard of district court judges means that they do not have a level playing field.

    Equally the same could and perhaps should be said of district court judges sitting in the criminal jurisdiction. The perception of poor quality in this instance comes from the background of many of these judges who have been drawn from the ranks of ex prosecutors and are overtly pro police.

    Barry Lovegrove then stands out as being head and shoulders above the majority of his colleagues. A man of great integrity, compassion and a willingness to stand up for what he is right.

    His retirement leaves a huge gap that may never be filled from within the current crop.

    Astonishing that Judith Collins would not even give him a look in at the Race Relations job, a role he would have surely have been by far the best candidate for. Where did they find Collins her by the way? Her arrogance is equal to her ignorance.