New Zealand Law Commission
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1 THE OBJECTIVES of the prosecution system (as identified in
Criminal Prosecution NZLC PP28 (1997) ‘the Discussion Paper’ are:
• to subject offenders to the processes of the law;
• to ensure that law and practice conform to the principles of te ao Mäori (the Mäori dimension) and the Treaty of Waitangi;
• to ensure that the human rights and dignity of persons suspected or accused of offences are respected and that they are not placed in jeopardy without sufficient cause;
• to ensure that the interests of victims are secured;
• to limit the use of formal prosecutions to cases where that is the only appropriate method of dealing with a person who has broken the law;
• to ensure that prosecution decisions are made in a fair, consistent and transparent manner and that those who make the decisions are accountable;
• to ensure the prosecution system is economic and efficient; and
• to reflect the aspirations of New Zealanders.
Many of these objectives compete with one another. For instance, the right of an accused person to a free and public hearing may conflict with the privacy interests of a victim of a sexual crime. In such cases, a principled balancing exercise is called for. In some situations one objective may predominate.
2 After assessing the current system against these objectives we concluded that, by and large, the system is effective and respects human rights. It also processes large volumes of cases effectively, reasonably quickly and results in the successful prosecution of large numbers of offenders. However, existing strengths in the system are more a consequence of luck than design. Our prosecution system remains today essentially the English system of the mid-nineteenth century, modified by piecemeal change. The system does not fully meet many of its objectives and is less efficient than it might be. In particular, we have observed that:
• some cases go further through the legal process than they need to; some cases unnecessarily go to trial, some are unnecessarily prosecuted, while others are less well prepared than they might be;
• until a recent change of policy, on which the police are to be congratulated, the fusing of investigation, arrest, and prosecution functions in the police could give the impression of unfairness;
• the relative indifference of the system towards victims heightens perceptions of unfairness;
• a high degree of decentralisation has resulted in inconsistency in prosecution decisions; and
• lines of accountability are uncertain and mechanisms for oversight and control inadequate.
3 This report contains the Commission’s reform proposals to address these problems. Given that the prosecution system is not fundamentally flawed or in need of radical reform, we have concluded that the most effective solution is to modify existing structures to maximise efficiencies. However, it is not enough to deal with these faults bit by bit. The prosecution system needs to be considered as a whole and reformed according to coherent principles. At stake is the rule of law. Any reform must promote adequate minimum standards of common decency and fair play; and maintain the principles of democracy, freedom and equality.
4 As a consequence of the deficiencies identified, and the values that must be protected, a number of key themes have been developed in this report. Guiding these reform proposals are the following conclusions:
• Investigation and prosecution of offences are fundamentally the responsibility of the State.
• Prosecution should be separated from investigation. Separation of these two key functions ensures that there are checks and balances incorporated into the system to protect the individual. It also promotes impartiality and ultimately respect for the criminal justice system and the rule of law. A separate evaluation of a case by someone who is independent, and seen to be independent, of the investigation process:
– helps to ensure the prosecution decision is not prompted by bias or prejudice;
– lessens the chance of corruption or improper motives; and
– brings greater independent judgment to bear.
• Prosecution decisions must be exercised in a consistent way in order to be fair. Where possible, discretions and decisions should be exercised in accordance with publicly available guidelines developed by the Solicitor-General.
• Decision-making processes should be transparent.
• Those who make the decisions should be accountable for them.
• Accountability for and consistency of decisions requires a satisfactory level of control over the prosecution system through Crown Solicitors, the Crown Law Office and ultimately by the Solicitor-General.
• Clear lines and forms of administrative accountability are a corollary of proper control mechanisms.
5 The purpose of this report is to set out the Law Commission’s final conclusions on the legal and administrative structures, procedures and agencies involved in prosecuting criminal offenders. The report begins by considering some of the fundamental issues overarching the entire prosecution system, such as who should have constitutional responsibility for the prosecution system. It then moves on to address the specific machinery, such as a comprehensive disclosure regime, which we have devised in order to promote the key objectives.
6 In chapter 2 we examine the reform models available for the criminal prosecution system. We assess the alternatives and confirm the key finding of the views expressed in the Discussion Paper that the most effective means of remedying deficiencies in the prosecution system is to build upon existing strengths, rather than to adopt an alternative model such as privatisation or a Crown prosecution service.
7 In chapter 3 we consider overarching issues relating to control and accountability. We set out proposals for improving control over the system, by promoting accountability for prosecution decisions, and increasing powers of oversight. We examine some fundamental constitutional issues, such as the nature of prosecutor autonomy and the need for freedom from political influence. In that regard, the position of the Attorney-General is paradoxical and requires special consideration; he or she is the individual ultimately responsible for the prosecution system and has a duty to discharge the office impartially. However, as a matter of convention, the Attorney-General is also a member of Cabinet and the political arm of the executive. Principled grounds for the exercise of the Attorney General’s powers are identified and considered, as is the appropriate role of Ministers in charge of prosecuting agencies such as departments of state.
8 In chapters 4 (Prosecutors’ Powers), 5 (Prosecution Decisions and the Discretion to Prosecute), 6 (Court Review and Supervision of the Discretion to Prosecute), 7 (Preliminary Hearings), 8 (Criminal Disclosure), and 9 (Charge Negotiation), we set out specific reforms designed to promote the identified objectives of the prosecution system. In particular we examine:
• the discretion to prosecute, and how it should be exercised;
• court control and review of prosecution decisions through section 347 of the Crimes Act 1961. We also consider the position in relation to Crown appeals and recommend that an appeal right on specified grounds should be introduced;
• the role of Crown Solicitors as independent prosecutors and how it can be enhanced. We also review the new police prosecution service, and look again at governmental prosecuting agencies;
• charge negotiation. We recommend that the existing practice of charge negotiation should be promoted but strengthened and regulated through publicly available guidelines. We also review status hearings as a forum for charge negotiation and recommend legislative intervention;
• preliminary hearings and how they can be streamlined to promote the efficient use of court and police resources; and
• a comprehensive criminal disclosure regime that is an essential corollary of our proposed reforms to preliminary hearings.
9 There are important elements of the prosecution system that do not fall within the scope of this report (either because review is not warranted or, if it is, because those elements will form an entire project). In particular, we do not at this stage make concluded reform proposals upon:
Alternatives to prosecution
Alternatives to formal court processing and sanction are an important feature of our existing system. Whilst we outlined in the Discussion Paper some of the important alternatives (such as diversion schemes and family group conferences), and considered restorative justice, a detailed reform appraisal is beyond the scope of this work.
Victims in the prosecution system
One objective of the prosecution system should be to ensure that victims’ interests are secured. However, victims’ interests have not historically been to the fore. The State has traditionally assumed the responsibility for investigating and prosecuting all reported crime on behalf of society generally. The role of victims is limited to that of a witness and the victims are to a large extent marginalised by the process. The Discussion Paper therefore proposed that the position of victims in the prosecution system should be strengthened by reviewing and amending the Victims of Offences Act 1987 and amending the Solicitor-General’s Prosecution Guidelines to ensure that both oblige prosecutors to consult with victims and to provide them with information about the progress of the prosecution. The Commission considered that all prosecuting agencies should take account of victims’ interests. In our subsequent paper Justice: The Experiences of Mäori Women: Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei, we recommended opportunities be given for Mäori groups, organisations and providers to share and participate in the formulation and delivery of services for Mäori and, in particular, services for victims.
The Discussion Paper also asked a more fundamental question: should victims’ interests be given greater weight by creating rights and methods of enforcement? We also asked whether the Ministry of Justice should co-ordinate policy-making for victims, and whether the Victims of Offences Act 1987 should be reviewed, and, if so, what should be taken into account in such a review. Six months after the Discussion Paper was published, Cabinet approved terms of reference for a review of support services for victims of crime and directed the Ministry of Justice to lead a working group. That working group has undertaken a substantial review of the area, leading to a number of proposed changes. In the 2000 Budget, Support for Victims was included as a specific output class (Vote: Justice) for the first time, and allocated $1.785 million. The Victims’ Rights Bill 1999 is currently before the House, but its final form is still under consideration. We expect that, amongst other things, it will ensure that victims’ rights are made properly enforceable, place specific obligations upon designated government agencies to ensure that victims’ rights are fulfilled, and improve procedures relating to victim impact statements.
Given the substantial progress that has been made in relation to victims since our Discussion Paper was published, and the ongoing work by the Ministry of Justice in this area, we do not intend to address the matter further in this report.
Te ao Mäori
The Commission considers te ao Mäori (the Mäori dimension) and the Treaty of Waitangi in relation to all its work, and has a number of projects that address important issues for Mäori within the broader justice area.
In the Discussion Paper we set out the results of some preliminary enquiries that included sponsoring a one-day hui for a number of Mäori working with Mäori in the criminal justice system. As we reported in the Discussion Paper, there was a consensus that many Mäori believe the criminal justice system as a whole is defective in that it does not adequately take account of Mäori values nor meet Mäori needs. The hui participants were people of experience, with practical knowledge of the impact on Mäori of the criminal law and the criminal justice system. The 17 matters of concern that they identified (in the context of oral discussion) have been repeated and confirmed by subsequent work that the Commission has undertaken. For example, in Justice: The Experiences of Mäori Women, which discusses issues that contribute to the perception by Mäori women that they are treated as if they are of little value by the justice system – including the criminal justice system – and are thus unable to participate in it. Those perceptions are equally applicable in relation to Mäori men and women involved in the criminal prosecution system. It was confirmed to the Law Commission again and again that many Mäori feel that the processes of the system are often unfair and that the system is particularly hostile to them because it is monocultural. Monocultural attitudes are perceived to result in a systemic bias and unfairness that denies justice to Mäori. This perception of unfairness highlights the need for transparency and accountability by all those exercising discretionary powers within the prosecution system, and highlights the need to ensure that transparency and accountability are consistent themes of this report.
It was the intention of the Commission to follow up these themes in a project tentatively entitled Alternatives to Prosecution. The work we performed in that project again highlighted the alienation from the criminal justice system seen by many Mäori and which has led Mäori to call for expanded diversion schemes, development of restorative justice projects and protocols or memoranda of understanding between police and iwi groups. It also made clear that there is a real need for practical, grassroots approaches such as those suggested, which not only address offending but also empower communities and encourage family and community participation.
The Law Commission, however, will not now continue with the Alternatives to Prosecution project. This is because we learned from the Ministry of Justice’s briefing paper to the incoming government that the Ministry has a similar project that is considerably more advanced than our own:
The Ministry is undertaking a Mäori Perspectives on Justice project to identify Mäori values, cultural beliefs, practices, and principles related to justice. The study will provide an overview of Mäori perspectives of tika or rightness rather than prescribe how the criminal justice system of New Zealand might work. The study will provide a better insight into the Mäori dimension in regard to justice matters, enhancing the Ministry’s capability to find solutions for social issues that continue to plague the lives of a significant proportion of Mäori. The first draft is almost completed.
Accordingly, the Commission will do what it can to assist the Ministry of Justice in preparing and implementing its report.
Perhaps because the Discussion Paper made it clear that the Commission’s investigation of the criminal prosecution process would not extend to a comprehensive review of the criminal justice system as it pertains to Mäori, we did not receive a great deal of comment on these proposals. The proposals are, perhaps, modest but worthwhile nonetheless. The Commission recommends that:
• Police prosecutors should be trained in tikanga Mäori, with a view to improved understanding of and sensitivity to Mäori cultural values.
• The recruitment of more Mäori police and police prosecutors should be encouraged.
• The appointment of Mäori within the Crown prosecution system should be encouraged.
• All Crown Solicitors should receive training in tikanga Mäori, with a view to improved understanding of and sensitivity to Mäori cultural values.
• Court staff and lawyers should emulate the initiatives of judges to improve their understanding of and sensitivity to Mäori cultural values. Training should be ongoing.
• Judges, counsel and court officials should be able to pronounce Mäori words and names properly.
• The involvement of more Mäori personnel in court processes as judges, Justices of the Peace, lawyers and court staff should be encouraged.
Generally, those who responded to the Discussion Paper did not favour delaying the changes proposed pending a wider review, except a lawyer and police officer, who (in a joint submission) thought the necessary training and understanding could not be achieved quickly, would be insufficient, and had an attendant risk of tokenism. They suggest utilising existing Mäori ‘experts’ throughout the country as funded Mäori advisers in a role similar to friends at court.
The police also thought that the proposals were inadequate. They saw the proposals as history attempting to repeat itself by “adding more Mäori people to a mono-culturally driven system [which] does nothing to change the outcome for Mäori”.
The New Zealand Law Society supported the proposals but considered them insufficient to address significant structural and operational concerns; they believe wider review and change is necessary. The Ministry of Justice made no comment pending the outcome of its project on responses to offending by Mäori.
Having considered the submissions, the Commission still considers the proposals outlined in the discussion paper useful, although modest, and reaffirms them. The Commission sees no reason why such practical recommendations should not be instigated at once. The Commission also considers that its recommendations in the report that require fairness, transparency and accountability of all those exercising powers within the prosecution system will contribute to fairer processes for both Mäori and non-Mäori.
There was little comment on whether there should be a full review of the criminal justice system with a view to meeting Mäori concerns and, if so, what body is best placed to undertake such an examination. Much the fullest comment came from the New Zealand Law Society Criminal Law Committee which recommended a Royal Commission to review the whole criminal justice system, including consideration of a separate justice system for Mäori. The Youth Law Project also favoured a full review (but had no opinion on what body might do it).
Minor offences and infringement notices
The Discussion Paper asked whether minor offence and infringement notice procedures should be used more widely, thereby limiting formal trials to cases that warrant a hearing. Of those submissions that addressed this issue, all supported the suggestion, some enthusiastically. None were opposed. The Commission has recently sought a reference to consider the consolidation, rationalisation and simplification of the criminal procedure statutes. The new project would include a close examination of these issues.
10 For the purposes of the Discussion Paper, and in this report, the Commission made the following assumptions:
• the existing division of offences into summary and indictable offences would continue – at least in the short term. In our discussion paper Juries in Criminal Trials: Part One it was suggested that the division of summary and indictable offences is no longer meaningful to determine the court and mode of trial suitable for an offence. Accordingly, that paper suggested that the summary/indictable distinction be abolished. This would be addressed in the proposed project on consolidation, rationalisation and simplification of the criminal procedure statutes. Whilst we assume for the purposes of this report that the division will continue, we reiterate the need for legislative attention in order to bring coherence to this area of criminal procedure;
• the adversarial nature of prosecution in New Zealand should not be changed; and
• the discretion to prosecute should be retained. We consider this issue in chapter 5.