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Criminal pre-trial processes - justice through efficiency. Government response to Law Commission report [2006] NZLCGovResp 89

Last Updated: 29 January 2019

GOVERNMENT RESPONSE TO LAW COMMISSION REPORT ON

CRIMINAL PRE-TRIAL PROCESSES

- JUSTICE THROUGH EFFICIENCY

Presented to the House of Representatives

GOVERNMENT RESPONSE TO LAW COMMISSION REPORT ON

CRIMINAL PRE-TRIAL PROCESSES - JUSTICE THROUGH EFFICIENCY

INTRODUCTION

1. The Government has consulted widely on and has carefully considered the Law Commission’s Report 89 Criminal Pre-Trial Processes – Justice Through Efficiency. The Report recommends far reaching reform of criminal pre-trial processes to improve the quality of justice and administrative efficiency. The Government thanks the Commission for the report and acknowledges its extensive consideration of issues relating to the summary jurisdiction. The Government responds to the report in accordance with Cabinet Office circular CO (01) 13.

BACKGROUND

2. In their report Criminal Prosecution (NZLC R66), 16 October 2000, the Law Commission expressed concerns regarding some aspects of status hearings. The Commission subsequently invited the Ministry of Justice to give it a reference for further work regarding status hearings. In response, the Minister of Justice asked the Commission to review the purpose and practice of status hearings with the following terms of reference:

‘The Law Commission shall review the purpose and practice of status hearings in the summary jurisdiction, and in particular shall consider:

• whether status hearings improve the efficiency and effectiveness of the criminal justice system;
• the role of the judiciary;
• the role of the prosecutor and of counsel for the defendant;
• the observance of the rights of defendants and victims;
• media reporting of status hearings;
• the desirability and legitimacy of sentence indications;
• whether there is a need for regulation, either statutory or non-statutory;
• whether status hearings should be extended to the indictable jurisdiction.’

3. The Law Commission took a broader approach than was originally envisaged in these Terms of Reference and re-framed the issue, not as to how status hearings might be improved, but as to how the pre-trial processes as a whole should function in either resolving cases or preparing them for trial.

SUMMARY OF LAW COMMISSION REPORT AND GOVERNMENT RESPONSE

4. The Law Commission put forward 70 recommendations. Key proposals include:

• Broadening the scope of early disclosure of prosecution evidence and a greatly expanded role for the Police Prosecution Service, particularly early charge scrutiny¹;

• A range of steps taken to encourage meaningful discussion between defendants and their counsel, and defence and prosecution, at an early stage;

• There should usually be no more than one adjournment (two appearances) during the administrative period² of a case;

• Formalised case management processes should be put in place involving a case memorandum³, as well as status hearings and sentence indications and, as part of the case management process, defendants proceeding to trial should be required to disclose pre-trial the issues in dispute, in order to facilitate case progression;

• A range of sanctions for procedural non-compliance by prosecutors and defence counsel.

5. The Government:

• Notes that the scope of early disclosure of prosecution evidence would be broadened by the Criminal Procedure Bill as reported back to the House and agrees in principle with the Law Commission’s recommendations on an expanded role for the Police Prosecution Service, subject to the undertaking of more detailed design and costing work by Police.

• Considers that:

• there should be, on average, fewer appearances during the administrative period of cases;

• given that the availability of sentence indications and discounts appears to be a factor in early guilty pleas, there is significant utility in providing formally for sentence indications and discounts in the court process;

¹ ‘Charge scrutiny’ means the review of a charge to ensure that it is based on sufficient evidence, is in the public interest to lay, and is supported by a fair and accurate summary of alleged facts.

² The ‘administrative period’ of a criminal case is that (early) period of a case in which matters that do not ordinarily require the intervention of a Judge are dealt with. These include: arranging disclosure; organising legal aid; dealing with bail matters; granting suppression orders; transferring hearings; and noting pleas and elections, among other things.

³ The ‘case memorandum’ proposed by the Law Commission is a document recording the outcomes of

discussions that, under the Commission’s proposals, parties would be encouraged or required to engage in before they appear before a Judge. Matters covered in the memorandum would include the outcome of plea or charge negotiations, and, where there is to be a ‘not guilty’ plea, case management issues, such as whether a status hearing is required.

• a formalised case management process has potential to better facilitate the progress of a case, but that a single process might not be appropriate for all cases; and

• has asked officials to consider options for developing and implementing a formalised case management process that provides a targeted response to the needs of different types of cases to facilitate case progression, including consideration of how and when sentence indications and discounts might be given.

• awaits the outcome of further work on case management processes to make clear the benefits of any mandatory defence disclosure requirements before the Law Commission’s recommendations on defence disclosure are considered, and

• Considers there may be merit in the Law Commission’s recommendations that Courts be allowed to make cost orders against under-performing counsel, and has asked officials to carry out further work. However, does not support the Law Commission’s other recommendations on sanctions for procedural non- compliance, in light of initiatives already begun and the work initiated to develop formalised case management processes.

6. A summary of the activity the Government has committed to in this response is contained in Appendix 1.

LAW COMMISSION REPORT AND GOVERNMENT RESPONSE

7. In its report, the Law Commission formed the view that status hearings could not be properly evaluated and reformed in isolation from other parts of the pre-trial process with which they are inextricably linked. It went on to define two principal problems associated with the pre-trial process. These are repeated delays, and unnecessary court appearances to resolve issues in court which should have been done out of court. It also identified, as a significant problem, cases that do not proceed to trial on scheduled days (“cracked trials”).

8. The 70 recommendations the Commission developed to eliminate these issues consequently propose a strengthening of case management practices and include:

• Processes to facilitate early Police prosecution decisions about which charges, if any, should proceed;
• Reducing the number of court appearances for administrative matters;
• Out of court discussions between parties about appropriate charges, whether the defendant will plead, and the conduct of the trial;
• A case management memorandum that is filed in court, recording the outcome of the discussions, and by which a plea or jury trial election could be entered;
• Legislation to regulate the informal but common practice of sentence discounts for defendants who plead guilty early;
• A range of sanctions for procedural non-compliance by prosecutors and defence counsel;
• New Criminal Procedure Rules and a review of the Solicitor-General’s Prosecution Guidelines.

9. The Law Commission focussed its attention on prosecutions initiated by the Police, these being the vast majority of cases progressed through our criminal courts. However, it considered that, except where reference was made specifically to the Police, the recommendations would have generic application to all prosecutions.

10. The Law Commission considered there was a high potential for efficiency gains for the court system arising from its recommendations, although it also noted that some agencies are likely to incur additional costs if the recommendations are implemented as suggested.

11. The Government notes that there is a general consensus among those consulted in the course of preparing this response⁴ that the timeliness of criminal pre-trial court processes overall falls short of a standard that most New Zealanders consider desirable, and that this also has consequences in regard to how economically our Courts can be administered. More specifically, the Government acknowledges the adverse effects that arise from unnecessary adjournments. It accepts that action should be taken to avoid resulting delay for defendants, witnesses, and the victims of crime to allow for more effective and efficient use of court resources, and to promote public confidence in our Court system.

12. The Government appreciates the broad approach to these issues taken by the Law Commission and has carefully considered its recommendations to ensure that any changes would deliver tangible improvements while maintaining general confidence in our court system. The magnitude of the proposed changes is significant, and the Government is cognisant of the need to allow sufficient time in which the different participants in our court system can robustly develop and implement any new approaches or initiatives.

13. The Law Commission recommended that its proposals be regarded as ‘a package’ and the Government acknowledges the inter-dependencies between them. However, the Government considers that the recommendations can, for the purposes of its response, be meaningfully addressed under five headings:

• Police Prosecution Practice;
• The Administrative Phase of Prosecutions;
• Case Management;
• Defence Disclosure;
• Disciplinary Measures.

⁴ See Appendix 2 for a list of agencies consulted in formulating this response.

Police Prosecution Practice

Proposals

14. The Law Commission proposed changes to Police operational and prosecution practices and legislative amendments to achieve more timely and broader initial disclosure and to support appropriate charging.

15. More specifically, the Law Commission proposed that:

• Initial disclosure on request would be more comprehensive than is currently the case, and would be the responsibility of the Police Prosecution Service;
• At an early stage in each case, the Police Prosecution Service would undertake independent scrutiny of charges laid by an investigating officer to ensure that there is sufficient evidence to prosecute and that the prosecution is in the public interest; and
• There would be changes to the Crimes Act, Summary Proceedings Act and Bail Act to clarify present requirements for bringing accused persons to Court and to allow sufficient time for the Police to prepare files before an accused person’s first appearance.

16. The Law Commission also recommended that the current Police Adult Diversion Scheme ("diversion") be discontinued and replaced by a Police caution scheme, thereby eliminating the need for some cases to come to Court at all.

Comment

17. Decisions to prosecute a citizen have serious consequences (whether or not guilt is eventually established) and strong efforts must be made to ensure that decisions to lay charges are well founded on sufficient evidence and are in the public interest. There was widespread agreement among those consulted that early file scrutiny by the Police Prosecution Service could be expected to contribute an important additional safeguard and quality improvements in this area.

18. In addition, there was widespread agreement that accused persons are unlikely to make decisions regarding plea until good information about the case against them is known. Timely and more extensive disclosure, at an early time, can therefore be expected to be crucial in determining how early pleas are entered.

19. Further, the changes proposed by the Law Commission regarding early disclosure and early scrutiny, particularly insofar as they require a much greater role for the Police Prosecution Service, would require significant additional resources and institutional change to Police operations. As indicated earlier, the Police would need to undertake more detailed policy and design work as to the practical and financial implications that would result from the implementation of these recommendations for the Police Prosecution Service.

20. Regarding the Law Commission’s recommendations concerning diversion, there was widespread agreement among those consulted that, in the overall case

resolution context, there would be limited potential gains to be made in terms of the use of court resources by replacing the current diversion scheme with a Police caution scheme. This is because the number of people going through diversion in the course of any given year is relatively small as against the overall number prosecuted, and in most cases involves only a very brief court appearance before a Registrar (who is also empowered to withdraw the charge if diversion is successfully completed). Furthermore, there are a number of significant advantages of the current diversion scheme including:

• If diversion fails, the case can proceed without delay because the prosecution has already commenced;
• The shadow of the Court provides a useful incentive for many accused persons to complete diversion; and
• Appearance at Court provides a number of safeguards for accused persons (in particular, the file is already prepared to prosecution standard and it should be clearer to the accused what situation they are faced with; duty solicitors are available to provide legal assistance – a caution scheme would require the establishment of a new system to advise accused persons; and putting time between an arrest and the decision to divert at or before the appearance at court allows for a “cooling down” period, avoiding the temptation for the accused to make hasty decisions before accepting, or rejecting, an opportunity to undertake diversion).

21. This noted, Police themselves agree that there are inconsistencies in the way in which diversion operates in different parts of the country and that overall, it is desirable for it to be operated in a more standardised, and more formal way than is currently the case.

22. The Police have been undertaking a review of the Police Adult Diversion Scheme and are now updating and refining the overall policy (including national operating standards), processes and practice requirements. The aims are to better standardise the delivery of diversion (including, in particular, decision-making processes and best practice), documentation, resolution options and processes, training and support, and performance recording and monitoring. Importantly, Police expect that the changed processes will result in greater use of diversion than is currently the case. This in turn will benefit the courts by freeing up time that would otherwise have been spent pursuing full prosecution processes.

Response

23. The Government agrees that if disclosure can be given earlier, and if it can be relatively comprehensive, a significant number of defendants can be expected to be able to decide if a guilty plea is warranted at an earlier point in time than may currently be the case. Further, the Government acknowledges the importance of disclosure in terms of ensuring fair process in criminal prosecutions.

24. The changes in relation to disclosure recommended by the Law Commission, are already contained in the reported back version of the Criminal Procedure Bill currently before the House which, once enacted, would establish the Criminal Disclosure Act. The Government supports these provisions in the Criminal

Procedure Bill, although it acknowledges that implementing them will require additional financial resources for New Zealand Police.

25. The Government supports, in principle, the Law Commission’s proposals to expand the role of the Police Prosecution Service, in particular to allow more thorough scrutiny of files at all stages of the prosecution process. However, it is clear that to implement these recommendations substantial additional resources will be required for New Zealand Police, most particularly the Police Prosecution Service, and, as well, sufficient time would need to be allowed for New Zealand Police to make the necessary institutional and operational changes. Thus, before any final decisions are made in this area, the Government considers that more work is required to quantify the operational and financial impact of the changes recommended by the Law Commission. The Government has therefore directed the New Zealand Police to undertake policy and design work as to the practical and financial implications of the Law Commission's proposals and to report to the Minister of Police by 30 June 2007.

26. The proposed changes to police bail provisions (that is, to extend to up to 14 days from the current seven the date of first appearance) would provide Police with the flexibility they would need in order to undertake the required level of file scrutiny recommended and clarify the current position. However, they would require legislative amendment. The Government has therefore directed the Ministry of Justice, in consultation with the New Zealand Police, to investigate options for implementing the Law Commission’s recommendations regarding police bail and report to the Minister of Justice by 30 September 2006.

27. The Government does not support the recommendation to discontinue the Police Adult Diversion Scheme and replace it with a caution scheme. However, the Government does acknowledge that there may be some merit in assessing whether the basis of the current diversion scheme might be formalised differently than at present. The Government acknowledges that there may be merit in considering formalising the diversion process, and has directed New Zealand Police to undertake an analysis of options and report to the Minister of Police no later than 30 March 2007.

The Administrative Phase of Prosecutions

Proposals

28. The Law Commission made a number of recommendations to encourage meaningful discussion between defendants and their counsel and between defence and prosecution at an early stage in order to promote the smoother progress of cases, and to reduce the number of appearances before a judge. The recommendations require that:

• Initial disclosure by the prosecution should occur early;
• There should be early contact between the defence and the prosecution;
• Facilities should be provided at courthouses to encourage early discussions between prosecutors and defence;
• There should usually only be one adjournment (two appearances) during the administrative phase of a case;
• Adjournment periods should be as short as possible;
• Registry staff should dispose of uncontested administrative matters, freeing judges to deal with guilty pleas and contested matters.

29. The Law Commission also recommended that defendants be compelled to provide instructions to their counsel through the imposition of a bail condition once a defendant is remanded to a status hearing.

Comment

30. There was widespread agreement among those consulted that many of the problems causing delay in the Courts arise at a very early stage in proceedings and that if these problems can be eliminated, many problems arising later may also be significantly diminished. The Government is therefore committed to addressing issues arising early in the prosecution process as a priority.

31. Whilst the Government should, and will, seek solutions that are both effective and efficient, it does need to be acknowledged that it would be unrealistic to expect 100% effectiveness and efficiency in every case. Criminal cases, by their very nature, can be unpredictable, and may be driven by individual choices that are not easy to anticipate. There will also always be a small number of cases where delay is unavoidable and occurs for very good reasons such as new evidence becoming available and needing additional time to allow for consideration, or the illness of a key witness.

32. The Law Commission’s report referred to the List Court Pilot at the Wellington District Court as one project that was seeking to provide solutions to issues arising early in the prosecution process. The List Court Pilot was initiated after submissions to the Law Commission’s report on the structure of the courts identified the operation of the List Court as a major area of concern.⁵ Its aims were to:

• improve defendants’ understanding of what was happening in the List Court process;
• reduce the amount of waiting time and visits to court by defendants; and
• ensure that administrative matters were dealt with before defendants appeared before a Judge.

33. The April 2005 evaluation of the Pilot found that these objectives were substantially achieved and made additional recommendations for improvements. The Government is advised that many of these improvements have now been made and the Ministry of Justice is seeking to identify how benefits arising from the systems established at Wellington can be extended to other Courts. However, this provides some challenges.

⁵ Law Commission Report 85, Delivering Justice For All – A Vision for New Zealand Courts and Tribunals, March 2004.

34. Unfortunately, while considerable qualitative benefits can be identified from the Wellington system, it is more difficult to establish any quantitative benefits in terms of efficiency savings. (Indeed, it is noted that both the Police Prosecution Service and Courts have found they require additional staff to maintain the new system.) In addition, the system at Wellington relies on facilities, including interview rooms and a Registrar’s counter, which cannot be made available in many courthouses throughout New Zealand given the Ministry of Justice’s current (historical) building stock and the cost of the modifications required. Therefore, alternative means of providing the ‘one-stop shop’ type service based in Wellington needs to be found if this idea is to be implemented in other areas. This is being considered in the context of work to improve and streamline court systems and processes to facilitate the smoother flow of cases through the Courts, as part of the Ministry’s ‘Service Improvement Programme’.

35. In its 2004 Baseline Review, the Ministry of Justice found that there were a number of areas of process improvement opportunities for the Courts. The Government has therefore funded a programme (the ‘Service Improvement Programme’) established by the Ministry and aimed at, among other things, reducing delays in the high volume District Courts and improving customer service and access to services. The programme includes a number of projects that Government expects to have both direct and indirect impacts on issues arising at very early stages of a prosecution.

36. Projects that form part of the Service Improvement Programme include:

• Local Court Improvement Project (which will, by identifying current best practice and extending it across the country, reduce case queues/backlogs, improve local practice and timeliness in making cases ready to bring before the Judge, and establish the basis for an ongoing programme of quality assurance and continuous improvement in court management);
• Registrars Powers Project (which will deliver training to registrars to support their management of cases during the administrative phase of a proceeding, and explore options to extend registrars’ powers in order to free judges for the matters that require judicial consideration);
• Rostering, Scheduling and Case Management Project (which will, among other things, develop proposals to improve rostering and scheduling processes that will contribute to reducing delays in high volume District Courts, and establish registry systems that support judicial case management);

37. Within the programme, considerable emphasis is being placed on concepts of integration and on being able to measure progress and impact. In this sense, the thinking underlying the programme is consistent with the Law Commission’s observations that solutions to issues that have arisen in pre-trial processes (and by extension, in courts processes generally) need to be seen as part of the same ‘package’. Ad hoc interventions to effect solutions at random points in any process risk failure.

38. In addition, work already initiated by the Legal Services Agency to review the provision of initial criminal legal services can be expected to address some of the

issues identified by the Law Commission in respect of the earlier stages of the pre-trial processes.

39. The Legal Services Agency review aims to improve the availability and accessibility of publicly funded legal services under the Police Detention Legal Assistance (PDLA), Duty Solicitor and legal aid schemes (as far as the links to initial appearances are concerned). The Agency is currently considering an initial report, which proposes further work to progress a number of key improvements, including:

• Improving the service profile and accessibility of the PDLA scheme;
• Incentives and disincentives to support better outcomes for clients (such as early contact with lawyers) within Agency funded criminal legal services;
• Improved quality of services through improvements in the administration of the Duty Solicitor scheme, including changes to listing criteria for lawyers, alternative contracting approaches, and mentoring and supervision structures;
• Options for continuous representation from the time the defendant is detained by the Police.

40. The Legal Services Agency will continue to work closely with other justice sector agencies in implementing any changes. The Agency is currently developing test plans for improvements to the administration of the Duty Solicitor scheme in the 15 largest courts.

41. There are, as the Law Commission has pointed out, substantial difficulties that arise when accused persons fail to instruct counsel in a timely manner. However, there was widespread agreement that including the obligation to instruct counsel as a condition of bail, and requiring defendants to remain at the courthouse until they have contacted their assigned counsel, raised issues of policy and practice that make these proposals both undesirable and unworkable.

42. For example, there was little confidence that defendants would always willingly wait at court until counsel could be located, implying a need to compel them. This is fundamentally at odds with the right to liberty enshrined in our human rights legislation.

43. Further, making it a condition of bail that defendants give instructions to counsel implies a level of duress that is not appropriate in regard to an individual’s right to autonomy. And, at a very practical level, it might not provide the appropriate incentives for many defendants anyway, leading to significantly higher workloads for Police and the Courts (if these bail conditions were to be enforced).

Response

44. The Government agrees with the Law Commission that there is potential for benefits from having better designed and functioning processes during the administrative phase of a case. Work already being funded in the context of the Ministry of Justice’s Service Improvement Programme to implement improvements to processes and systems is aimed at achieving these gains in this

area. In addition the work relating to disclosure, indicated above, is also expected to contribute improvements early in cases.

45. The Government notes that the Ministry of Justice and Legal Services Agency, in their course of their current work programmes, will assess the relevant Law Commission recommendations when considering options for improving processes at the early stages of a prosecution.

46. The Government acknowledges the problems arising from a failure of defendants to instruct counsel but does not support the Law Commission’s recommendations to remedy them.

Case Management

Proposals

47. The Law Commission made a large number of recommendations, which the Government considers broadly fall into the category of case management proposals. These recommendations include those relating to a case memorandum, status hearings, sentence indications, and unrepresented defendants. In general, they are intended to facilitate progression of cases from one step in the prosecution process to the next, and assign responsibilities variously to defendants, defence counsel, prosecutors and the Court.

Comment

48. A case management system provides the framework for moving cases through the Court process from filing to disposition in a timely and efficient way appropriate to the case, and in a way that ensures that justice is achieved. It includes:

• scheduling credible event dates and resources required for each event;
• liaison between parties, and between the Registry and parties to ensure that they are prepared for events and encouraged to carry out judicial directions;
• interventions by the Registry to identify and help parties resolve problems when they arise, and to identify and escalate to the judiciary issues that may impact on case progression.

49. A general approach to case management has been adopted in New Zealand courts for some years and is widely considered to have produced benefits such as a reduction of delays, particularly in the civil and family jurisdictions. In the summary jurisdiction, the key case management initiative has been the status hearings process. However, further case management initiatives in the criminal jurisdiction have been limited and, as indicated by the Law Commission, are not without issue.

50. For case management to be both acceptable and successful the Government considers that two things are important. First, that a correct balance is achieved between the fundamental principles underpinning our criminal justice system and the expediencies associated with managing large volumes of cases through the

Courts. Second, the level of case management intervention should be proportionate to the needs of each case.

51. During the consultation process, various and conflicting opinions were expressed regarding what level of case management and what type of case management interventions were fair, reasonable, and appropriate to our criminal justice system. On the one hand, some commentators saw significant utility in many of the recommendations made by the Law Commission. On the other hand, some commentators urged extreme caution on grounds that a number of the Law Commission’s recommendations threaten fundamental precepts of our justice system.

52. For example, the Crown Law Office had significant concerns that the Law Commission’s recommended processes may result in tailored resolutions to cases, convenient to the parties, but not necessarily in the public interest and clearly stated its opposition to a number of the proposals. Also, some senior members of the judiciary and others considered that principles, such as the requirement on the prosecution to prove the case, the right of the defendant to remain silent on any matters, and the maintenance of impartiality by the judiciary, would be compromised if some of these recommendations were implemented.

53. The recommendations regarding sentence indications and discounts created particular discord among those consulted. On the one hand commentators argued keenly for the rights of defendants to know what they can expect in relation to sentence and for the utility of sentence indications in eliciting pleas from them. On the other hand commentators warned of the grave risk that the provision of sentence indications, as recommended by the Law Commission, would pose in encouraging charge negotiations. Anecdotally, others noted, pragmatically, that sentence indications and discounts are given under the current regime, but that that there may be an uneven approach being taken to them across the country.

54. The Government considers that concerns raised regarding the possible impact of the specific case management initiatives proposed by the Law Commission do not provide an insurmountable barrier to further work and improvements being made in this area. However, the Government is concerned to maintain confidence in our justice system and is therefore unwilling to introduce changes that may impact on some of the fundamental principles underlying the administration of justice without a greater degree of consideration regarding what is appropriate.

55. In addition to these questions of principle, detailed analysis of the Law Commission’s assumptions has revealed that the magnitude of the problems cited in its report were incorrect. For example, the Commission states that “in the majority of cases it takes weeks and multiple adjournments to arrange these administrative matters”⁶. However, in 2004 the median time to resolve cases other than those entering a ‘not-guilty’ plea was 15 days, with these cases constituting 80% of the total summary cases disposed. The 80^th percentile was

⁶ Report 89 Criminal Pre-Trial Processes Justice Through Efficiency, Law Commission June 2005 (Executive Summary, section 4, first paragraph.)

73 days and the 90^th percentile was 127 days, figures that include cases where defendants absconded or had health or other legitimate personal reasons for delay.

56. This implies that a significant number of cases (approximately three-quarters or more) do not currently experience unnecessary delay, and proceed through the Courts without encountering problems. The current system would therefore appear, at least on the face of it, to be working satisfactorily for these cases and introducing changes to the current system proposed by the Law Commission would run the risk of additional delays where there currently are none. For example, the Government is advised that under the Law Commission’s proposals, more cases that might ordinarily be disposed after the 3^rd or 4^th adjournment would be automatically diverted on to the status hearing track. This would imply additional and unwarranted pressure on judicial resources, and increase the median time in which these cases are resolved.

57. Further, the graph below illustrates how the majority of cases are currently disposed within three months, while only a minority of cases can take six months or more to dispose of.

Figure 1

Median Criminal Summary Disposals

(Cases Commenced from November 2003 to October 2004)

11,806
7,161
7,238
16,605
26,568
110,090

120000

100000

80000

Outstanding Cases

60000

40000

20000

0

0 20 40 60 80 100 120 140 160 180 200

Median Days

58. However, even if only up to one quarter of cases do experience unnecessary delay this issue needs addressing. But, rather than the generic system proposed by the Law Commission, the Government considers that a more targeted approach to case management, in which ‘difficult cases’ are selected for specific case management interventions, would be better.

59. The Government is also mindful that, for case management initiatives to be successful, a high level of co-operation between all the participants in the Court process is required. This level of co-operation needs to be actively fostered, under the leadership of the judiciary, and is most likely to emerge where all

parties have been closely involved in the formation and implementation of the systems developed. It also requires that participants be adequately supported and resourced to undertake the responsibilities assigned to them.

60. This includes an able court staff group, to whom much of the responsibility for managing cases would fall. The Ministry of Justice’s Baseline Review, noted above, identified that the Ministry needed to make a significant investment in order to improve capability and capacity of its staff. To achieve this, the Service Improvement Programme includes a number of initiatives designed to:

• Develop staff skills through training and development, career progression and performance management;
• Improve overall capability by reducing turnover/improving retention;
• Better match the supply of resources to demand for services; and
• Improve supporting organisational infrastructure, including IT and property.

61. Together, these initiatives are expected to contribute improvements to case flow through the courts. Court staff, who are under less pressure and who are better trained and supported, will be more able to make better decisions regarding the cases they currently process. In the longer term, it will also increase the potential for them to be able to assume more case management functions, as these functions are developed and refined.

Response

62. In general, the Government supports the consistent application of case management principles for managing the work of the District Courts across the country. However, the Government is not convinced that the proposals developed by the Law Commission provide the most appropriate model for case management in the New Zealand summary jurisdiction.

63. In particular, the Government questions whether one process can be applied across all summary cases. Research on case numbers and time to resolve makes clear that a significant proportion of cases currently proceed through the Courts without undue delay, and suggests that a form of differentiated case management may be more appropriate to ensure that effort and resource is better targeted at more ‘problematic’ cases.

64. The recommendations made by the Law Commission in relation to case management also have significant implications for the training and recruitment of court staff. As above, the Government notes that, as a result of the Ministry of Justice Baseline Review, the Government has committed to a programme of work that will improve, among other things, capability and capacity within the District Courts, and provide the necessary base on which to build case management processes.

65. Further, the Government notes that some aspects of the case management process proposed by the Law Commission may raise risks in relation to some of the principles under-lying our court system. This has been acknowledged and discussed by the Law Commission in its report. The Government considers that

these issues require more thorough consideration before it is able to commit to implementing the process as recommended.

66. Accordingly, the Government notes that work on the development of options for case management in the criminal summary jurisdiction is already on the Ministry of Justice’s work programme. In the course of this work, the Ministry will consider what types of cases are most likely to benefit from active case management and what, if any, aspects of the case management model should be made mandatory.

67. With regard to the issues of sentence indications and sentence discounts, the Government recognises the utility of providing them in order to assist defendants in deciding on how to plea. However, Government also recognises a number of risks associated with them, which should be thoroughly assessed in light of the work to be undertaken on case management.

68. The Government has therefore directed the Ministry of Justice, to investigate options for formalising sentence indications and report to the Minister of Justice on how this will be progressed in the 07/08 work programme.

Defence Disclosure

Proposals

69. The Law Commission recommended that defendants proceeding to trial should be required to disclose pre-trial the issues in dispute, and that defence-opening statements be mandatory in jury trials.

Comment

70. The Law Commission’s recommendations regarding defence disclosure can be helpfully considered under two headings:

• The actual defence disclosure provisions; and
• Their mandatory nature.

71. Among those consulted, there was general agreement that issues of both principle and practice are raised under each of these headings. These issues are discussed by the Law Commission in its report and include concerns, expressed by the judiciary, New Zealand Law Society and representatives from the Criminal Bar, that the defence disclosure recommendations could entail a shift in the accusatory nature of the criminal legal trial process.

72. Notwithstanding these concerns, it was also widely acknowledged that competent lawyers already do some of what the Law Commission recommends (in relation to disclosure and opening statements) on a voluntary basis, where this is perceived as being helpful to progress matters without prejudicing their clients. Moreover, the Law Commission, suggests that usage of these mechanisms may be increasing⁷. It is therefore apparent that the principal concerns held are more

⁷ Report 89 Criminal Pre-Trial Processes Justice Through Efficiency, Law Commission June 2005 (paragraph 169)

directed at the mandatory nature of any provisions regarding defence disclosure and not the actual provisions themselves.

73. At a very practical level, a mandatory requirement for defence disclosure could be frustrated by the simple expedient, as the Law Commission itself acknowledged, of the defence stating, "everything is in dispute". Further, imposing a mandatory requirement on all cases has the potential to add cost burdens for the defence in cases that would not ordinarily require this level of involvement. As noted above, not all cases experience the same sorts of difficulties progressing through the courts. For cases that might ordinarily have progressed with little or no delay, the costs associated with preparation for mandatory disclosure would essentially be wasted costs.

74. If voluntary use of defence disclosure continues to increase for appropriate cases in any event (with support of the defence counsel, prosecution and judiciary) there may be little need to impose a mandatory system in the longer term. This requires further monitoring in the context of the work to develop case management systems noted above.

Response

75. The Government considers the merits of defence disclosure, balancing public interest considerations against the rights of defendants, may require further review but this work should not proceed until work on targeted case management processes is further advanced.

Disciplinary Measures

Proposals

76. The Law Commission recommended:

• Judicial monitoring of counsel performance, with notification to the Legal Services Agency and New Zealand Law Society, as appropriate, and regular, robust responses by those agencies to ‘proven performance failures’;
• Legislative provision for costs orders against prosecution agencies or defence counsel for failing to comply with procedural obligations;
• Legislation addressing when trials proceed in the absence of the defendant.

Comment

77. The Government is committed to put in place systems and requirements that will help ensure that defendants in criminal trials are given sound legal advice (where this is sought), that lawyers do not place unnecessary burdens on the court system through poor practice, and that the New Zealand tax payer receives value from its investment in legal aid. One of the elements of a system for ensuring these things is a robust disciplinary regime.

78. As noted by the Law Commission, the Lawyers and Conveyancers Bill will, when implemented, provide a new disciplinary regime. In particular, the Bill will, among

other things, deal with matters relating to service standards as well as to conduct, and provide for stronger sanctions. The Government notes that the Law Commission does not consider these reforms go far enough. Notwithstanding this view, the Government considers that the new regime should be given a chance to prove itself before further reforms in the area of discipline of the legal profession are considered.

79. The Government has also introduced the Legal Services Amendment Bill (No 2), that makes some changes to the powers of the Legal Services Agency to suspend or cancel the listing approvals of a legal services provider. While, again, these amendments do not empower the Legal Services Agency to the extent envisaged by the Law Commission, the Legal Services Agency is intending to undertake further work to review of some parts of the current Criteria for Approval as a Listed Provider.

80. This further work has yet to be fully scoped and the impact of changes to the current criteria (if any) on legal aid provider performance is conjectural at this stage. However, as part of a review of initial criminal legal services, the Agency is proposing a specific review of the listing criteria and conditions for Duty Solicitors. While not highlighted in the Law Commission’s report, this aspect is considered by the Agency as an important potential service improvement in the Duty Solicitor scheme.

81. The existing legal position concerning whether, and if so in what circumstances, cost orders can be made by the Courts against defence counsel is currently unclear. It would be useful to clarify this situation and, in clarifying the situation, it may also provide a strong signal to counsel that high standards of performance are expected of them, noting that the Costs in Criminal Cases Act 1967, already contains provisions for a costs regime against the prosecution.

82. It would also be desirable to clarify, by legislation, the circumstances in which cases should be allowed to proceed when an accused person fails to attend. The Government has not formed a view regarding what the legislation should say, although it notes that the Law Commission report specifically recommended legislation should take into account the factors set out by the English Court of Appeal in R v Jones⁸ and endorsed by the House of Lords.

Response

83. The Government notes that the Lawyers and Conveyancers Bill contains provisions to address many of the concerns expressed by the Law Commission regarding counsel performance. In addition, the effect of changes to the Legal Services Act 2000 contained in the Legal Services Amendment Bill (No 2) and a review of the Criteria for Approval as a Listed Provider may influence aspects of lawyer performance. A planned review of payment structures may also influence aspects of lawyer performance. The Government considers that, until the impact of these initiatives has been assessed, consideration of recommendations to introduce a new process for dealing with misconduct and performance failures by

⁸ R v Jones (Anthony) [2002] EWCA Crim 2949; [2003] 1 AC 1 (HL).

counsel, which would among other things also significantly change the role of a judge, would be premature.

84. The Government considers that there may be merit in making clear that the Courts can make cost orders against counsel on a limited number of clearly specified grounds. It has therefore directed the Ministry of Justice to investigate options for implementing cost orders against counsel, as recommended by the Law Commission, and report to the Minister of Justice on how this will be progressed in the 07/08 work programme.

85. The Government also considers that there may be merit in legislative provisions clarifying when cases should be allowed to proceed where an accused person fails to attend. The Government has therefore directed the Ministry of Justice to investigate options for appropriate legislative provision, as recommended by the Law Commission, and report to the Minister of Justice on how this will be progressed in the 07/08 work programme.

CONCLUSION

86. The Law Commission extended the scope of its report from an assessment of status hearings by themselves, to an assessment of the pre-trial process generally because it believed that status hearings could not be considered in isolation. The Government acknowledges that, if the problems of the summary jurisdiction are to be adequately addressed, there is a need to take a more systemic approach than may previously have been attempted as demonstrated by the Law Commission in its report.

87. The Government further acknowledges the process undertaken to develop advice regarding this response as one involving participants from all parts of the court process. The problems that exist in the summary jurisdiction cannot be attributed to any one participant in particular and the failure of any one participant in the process is likely to affect the performance of others. Therefore, because the problems are shared, they require shared solutions and the further co-operation of all participants including Judges, court staff, Police, prosecution, defence lawyers, Legal Services Agency and others.

88. The Government’s response to the Law Commission’s proposals accordingly will proceed in two stages:

(i) an integrated set of measures to improve the front end activities around police prosecution, provision of initial legal advice and bringing the matter to Court, on which work will proceed immediately; and

(ii) further work over the next year on developing an integrated approach to case management, including consideration of the place of differentiated processes according to levels of risk of delay and the roles of participants other than the Ministry of Justice (court registry staff) in ensuring case management processes are effective.

Appendix 1

Summary of Activity Committed to in Government Response

Work Already Underway

• Review of the Police Adult Diversion Scheme
• Criminal Procedure Bill (amendments regarding criminal disclosure)
• Initiatives within the Ministry of Justice’s Service Improvement Programme:
  • ➢ Work in relation to case management (including Rostering, Scheduling and Case Management; and Registrars’ Powers projects);
  • ➢ Work in relation to improving court processes and systems, generally;
  • ➢ Work in relation to increasing capability/capacity within courts.
• Lawyers and Conveyancers Bill
• Legal Services Amendment Bill (No 2)
• The review of initial criminal legal services being undertaken by the Legal Services Agency

Work to be Undertaken

Appendix 2

Consultation Undertaken in Preparation of Response

Advice to Government regarding this response was prepared by the Ministry of Justice in consultation with:

• The New Zealand Police;
• The Legal Services Agency;
• Crown Law Office;
• Both courts operation and policy groups within the Ministry of Justice;
• The New Zealand Law Society;
• The New Zealand Bar Association;
• The Chief Justice;
• District Court Judges nominated by the Chief District Court Judge.