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11 THE DISCUSSION PAPER outlined three options for reform of
the structure of the prosecution system:
• privatising prosecution services;
• establishing an independent Crown prosecution service; and
• building on and adapting the present structure.
12 The Commission said that the best reform option was to build upon existing strengths of the present structure. After considering the submissions, the Commission has not changed its view.
13 The Commission does not favour further privatisation of the prosecution system.
14 The State has the right to create and define criminal offences.[8] No behaviour is criminal until Parliament, on behalf of the public, deems that behaviour harmful and passes legislation to make it an offence. The Solicitor-General’s Prosecution Guidelines (referred to in this report as ‘the Guidelines’, and reproduced in appendix C) provide:[9]
Behaviour classified as criminal has been deemed so harmful to society generally that the State, on behalf of all its citizens, accepts the responsibility to investigate, prosecute and punish those behaving in that way.
15 The Commission believes that the preservation of the public peace and the prosecution of offences are essential responsibilities of the State. Under our existing system the Attorney-General has the ultimate constitutional responsibility for the conduct of State (or public) prosecutions, and the power to stay private prosecutions. The Solicitor-General has responsibility for the day-to-day functioning of the criminal prosecution system (see paragraphs 35-37 below). The reality, therefore, is that a crime is treated as belonging first to the State, and only secondly to the victim/complainant, although there is increasing awareness of the need for victims’ interests to be considered. The public utility of criminal law, and the prosecution system generally, weigh heavily in favour of retaining centralised state control. Existing constitutional practice reflects this.
16 Privatisation of the discretion to prosecute was not favoured in the Discussion Paper, and the Commission’s view remains unchanged. This is not an area where the economic principle of competition should predominate. Public interest factors, including consistency of decision-making, are paramount, rather than cost. The discretion itself is a part of the fundamental responsibility of the State to carry out prosecutions.
17 Whilst contracting out the conduct of prosecutions in court is not subject to the same criticisms as privatisation of the discretion to prosecute, the Commission has accepted as a fundamental goal that investigation and prosecution functions should be separated wherever possible (see paragraph 4 above, and Discussion Paper, paragraphs 325–328). There is a danger that investigating agencies that contract out their prosecution function could see themselves as entitled to direct the prosecution decisions in ways contrary to the fundamental goal of separation. Conversely, those who win a contract to prosecute would have an interest in keeping the investigating agency ‘happy’.
18 A number of submissions pointed out the existing private aspects of the current system such as the remuneration of Crown Solicitors on an hourly rate, and the use of panel prosecutors. Further privatisation was not favoured, although some respondents suggested that a wider use of lawyers other than Crown Solicitors and panel prosecutors might be advantageous. The existence of private organisations undertaking prosecutions was a matter of some comment. This issue is covered in detail in chapter 10.
19 The Discussion Paper asked whether it was appropriate to establish a stand-alone Crown Prosecution Service in New Zealand, and reached a preliminary view, mainly for practical reasons of efficiency and economy, that it was not the best option. Instead, the Commission proposed a number of improvements to the existing system. However, the Commission did indicate that a factor strongly in favour of a Crown Prosecution Service was the former lack of clear separation between investigation and prosecution functions within the police and prosecuting agencies generally.
20 There was a clear division of views on this issue in the submissions. Those favouring a Crown Prosecution Service included some judges, the New Zealand Law Society (as a preferred option) and an ex-police officer. Desire for a Crown Prosecution Service arose mainly from concern about the conduct of summary prosecutions, and the lack of separation of investigation and prosecution roles in the police. By contrast, the four government departments that responded in writing opposed a Crown Prosecution Service, as did the Crown Law Office and Crown Solicitors. The police were also opposed. The Ministry of Justice expressed no firm preference; its major concern was that such a fundamental change would be more costly than the present system.
21 The police have responded to the concerns about the conduct of summary prosecutions by creating a prosecution service to ensure separation of prosecution and investigation functions. This is outlined in paragraphs 112–118 of this report.
22 There was almost universal acceptance by prosecuting agencies that prosecution functions should be separated from investigative ones. There was also widespread dissatisfaction at the present standard of summary prosecutions.
23 Prosecuting agencies consulted by the Commission indicated a strong willingness to review their current prosecution systems with a view to developing their own prosecution guidelines, using the Solicitor-General’s guidelines as a blue-print. We consider this development critical to prosecuting agencies and their role in the prosecution system. We also recommend in this report that a specialist team within the Crown Law Office be established, in part in order to assist prosecuting agencies in developing their own guidelines (see paragraphs 67–69).
24 Since publishing the Discussion Paper, the Commission has been encouraged in its view by the recent restructuring of the English Crown Prosecution Service which brings the English model closer to the existing New Zealand system of Crown Solicitors. In his report Sir Iain Glidewell considered that national centralisation of the service in 13 geographical areas was not working and recommended, amongst other changes, a reorganisation into 42 areas (corresponding with police force areas) and the appointment of a Chief Crown Prosecutor to run each area. The 42 Chief Crown Prosecutors were appointed in late 1999, and the Service is now operating under Sir Iain’s new structures.[10]
25 In view of the progress the police have made to implement changes in their prosecution structure and the willingness of prosecuting agencies to do the same, the Commission remains of the view that it is unnecessary to introduce a Crown Prosecution Service for New Zealand. However, we reiterate the importance of the principle of separation of prosecution and investigation functions for all prosecuting agencies.
26 In our view the preferable model for reform is to build upon the considerable strengths of the current prosecution system in order to overcome its identified limitations. We consider that change to the existing system and structures should be made only when it is demonstrably necessary. Nothing in our review of the prosecution system indicated such radical flaws that would warrant an entirely new model for prosecution services.
27 We believe the recommendations in this report will ensure separation of investigation and prosecution functions, and increase accountability, transparency, and public control over prosecution decisions. An improvement in the standard of prosecutions, without significantly greater use of resources, is also likely.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R66/R66-2_.html