New Zealand Law Commission
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77 THE PROSECUTION SYSTEM is largely successful in meeting its
objectives. Nonetheless, the fragmentation of state functions and the devolution of the power to prosecute emphasise the need for guidance and control over the system. In order for state prosecutors to act as independent reviewers of investigating agencies, clarification of their powers and role is required. As outlined in this chapter, expansion of the role of prosecutors is essential to implement other improvements to the prosecution system as recommended in this report.
78 In this chapter we set out the Commission’s specific recommendations for reform of the powers and respective roles of:
• Crown Solicitors;
• police prosecutors;
• prosecutors in public agencies.
79 Crown Solicitors are lawyers (generally in private practice) who have the responsibility for conducting indictable criminal trials. There is a Crown Solicitor for each High Court centre and one in Tauranga. They are responsible for both firmly and fairly presenting all relevant evidence to the jury. It is not their role to strive to get a conviction. They require key qualities of independence and objectivity.
80 We have already concluded that the role of Crown Solicitors as independent prosecutors should be developed (see paragraphs 25 and 26) in preference to adopting a different model for reform of the prosecution system.
81 We now consider a number of matters relating to the independence of Crown Solicitors as prosecutors, and their role within the prosecution system. In particular we consider:
• The method of appointment and nature of their tenure.
• Whether Crown Solicitors should be responsible for all indictable prosecutions, including those undertaken by prosecuting agencies but not including those undertaken by private prosecutors and the SFO.
• Whether there should be a power to discontinue prosecutions.
• Whether there should be a power to divert offenders.
• Whether there should be a power to direct or veto prosecutions.
82 We also make one of the key recommendations of this report; that Crown Solicitors should have oversight and effective control over indictable prosecutions before the preliminary hearing. In practice, this would mean Crown Solicitor involvement once a plea is entered or the defendant has elected trial by jury.
Mode of appointment and tenure of Crown Solicitors
83 In order to be effective as independent prosecutors, Crown Solicitors must be free from political influence. Two matters that impact upon independence from such influence are:
• the mode of appointment of Crown Solicitors; and
• the tenure of their office.
If the mode of appointment of Crown Solicitors is subject to political influence, the appearance of independence is undermined. If tenure is too uncertain, the position of the Crown Solicitor as an independent prosecutor may also be undermined by the apparent threat of removal. Equally, if security of tenure is absolute, there will be little incentive or mechanism for improvement of prosecutions by Crown Solicitors.
84 In the Discussion Paper we asked whether the current method of appointment and nature of tenure should change. Our view was that this was unnecessary. After considering the submissions, we have confirmed that view.
Appointment of Crown Solicitors
85 Crown Solicitors are appointed by the Governor-General on the advice of the Attorney-General. Appointments are made under prerogative and are held ‘at pleasure’. Crown Solicitors are officers of the Crown responsible to the Attorney-General, through the Solicitor-General, for the proper exercise of prosecution functions. Successive Attorneys-General have looked to the Solicitor-General for advice on appointments.
86 An appointment as Crown Solicitor is a personal one. However, a member of the same firm has usually succeeded a retiring Crown Solicitor because the firm has become the local repository of skill and experience in the prosecution area. To spread that experience and provide a wider pool of potential Crown Solicitors the Solicitor-General has appointed panels of prosecutors in each district to whom the Crown Solicitor must brief a proportion of prosecution work. The Commission supports this initiative.
87 There was agreement from those who made submissions on the issue that no change was necessary to appointment procedures. The Commission concurs. We consider the constitutional convention for appointments, involving as it does both the Law Officers and the Governor-General, in itself provides a strong degree of oversight and self-regulation of the method of appointment, and ensures proper scrutiny of those individuals prior to appointment. The present system also incorporates sufficient devolution of decision-making powers to the Solicitor-General to ensure appointments are not influenced by political considerations.
Tenure of office for Crown Solicitors
88 Crown Solicitors hold their office at pleasure, and can be removed by the Governor-General acting, by convention, on the Attorney-General’s advice. In practice the Attorney-General would consult the Solicitor-General, as the person responsible for the practical oversight of the prosecution system.
89 One submission suggested that appointing Crown Solicitors for a fixed renewable term would be desirable, with regular reviews considering competency, efficiency and accountability. The Crown Law Office submission noted that the Solicitor-General has put into effect periodic performance reviews as envisaged by Laurenson and Taylor’s 1992 report Review of the Crown Solicitor’s Structure for the Solicitor-General.
90 The Commission recommends that the existing system of tenure for Crown Solicitors remain. The ‘at pleasure’ nature of tenure by convention provides a high degree of security for Crown Solicitors. We have been unable to find any record of a Crown Solicitor being removed from office in New Zealand legal history. Equally, the prerogative nature of the appointment assures that, if necessary, a Crown Solicitor could be removed for serious misconduct or incompetence. The devolution of the power of decision from the Governor-General through the Attorney-General to the Solicitor-General creates a strong series of checks and balances removing the risk of political interference in the tenure of Crown Solicitors.
Crown Solicitors and indictable proceedings
Crown Solicitors to oversee prosecutions before the preliminary hearing
91 Crown Solicitors have a discretion regarding two vital aspects of a prosecution:
• whether a prosecution should be brought by indictment; and, if so,
• what charges should be proffered against an accused.
92 However, Crown Solicitors do not become involved in an indictable prosecution until long after it has commenced, and therefore exercise their discretionary powers late in the process. Depositions files, or records of the evidence given at a preliminary hearing, are forwarded to Crown Solicitors by the Registrar of the District Court some time after the preliminary hearing has been conducted. It is only at this stage that a Crown Solicitor can determine whether a prosecution by way of indictment should be pursued and, if so, what charges should be brought. By now, considerable human and financial resources have already been committed to the prosecution: the initial decisions to charge and the nature of the charges have been made, an indictable information has been laid in the court, witnesses have been briefed, given evidence, and been cross-examined at the preliminary hearing.
93 Late involvement by Crown Solicitors limits the effectiveness of their role as independent public prosecutors by restricting the scope of their powers of oversight and discretion to charge. The existing system is inefficient because the individual with the ultimate power to decide whether a prosecution is to proceed and what form it should take cannot make those decisions until very late in the process. It is also clearly desirable that the independent review of the investigation charging decision should be carried out as early as possible.
94 In their submission, the police were opposed to the earlier mandatory involvement of Crown Solicitors in indictable cases. They submitted that changes to the police prosecution structure and decision-making processes removed the need for earlier involvement (see paragraphs 112–118 for an outline of the proposed changes to the police prosecution structure). The police also pointed out that they often do consult Crown Solicitors in indictable cases. Other prosecuting agencies also did not favour the earlier involvement of Crown Solicitors. By contrast, Crown Solicitors were in favour of such a change. The Ministry of Justice was concerned that earlier involvement would have significant cost implications.
95 Having considered the submissions, we recommend that Crown Solicitors review all prosecution files once a plea is entered or an election for jury trial made, to confirm that the original charges are appropriate, and to give guidance to police on evidential issues. Responsibility for conducting the preliminary hearing itself would remain with the police, except in cases where police elect to instruct the Crown Solicitor (as is the present practice in relation to particularly serious or complex cases).
96 The Commission considers that earlier involvement of Crown Solicitors in indictable cases is likely to result in a number of significant improvements to the prosecution system:
• Earlier control will improve the quality of prosecution cases at an earlier stage. If necessary, different charges can be laid, additional evidence can be sought, experts engaged and pleas negotiated, all before significant resources are committed to the preliminary hearing. Stronger cases at the preliminary hearing stage will promote a greater number of early guilty pleas.
• Earlier involvement should not mean significantly greater cost. Police will continue to be responsible for the conduct of preliminary hearings. Indeed, we expect a possible overall cost saving as police resources are efficiently used, and less court time wasted on cases or charges that are not eventually pursued.
• Crown Solicitors will be able to exercise earlier their important constitutional function of independent review of prosecution decisions and thereby reduce unnecessary distress and expense for accused persons who are not ultimately prosecuted.
97 The Commission recommends that the Solicitor-General ensure that Crown Solicitors review and oversee the prosecution of all indictable offences, except those dealt with by the SFO, once a plea is entered or election for jury trial made. No legislative change is required to implement this alteration in the role of Crown Solicitors. However, the Cabinet Directions for the Conduct of Crown Legal Business 1993 require amendment to reflect the increased role of Crown Solicitors.
Should Crown Solicitors be responsible for all prosecutions by indictment?
98 Some public agencies (including some government departments) wish to conduct their own indictable prosecutions and not use Crown Solicitors. For example, Health Benefits Limited is a company formed to deal with health benefit fraud, in particular by the medical profession. The company investigates fraud, and decides whether to prosecute. It also wishes to conduct any resulting trials on indictment. To date this has not been approved by the Solicitor-General (see also chapter 10, Private Prosecutions). In the Solicitor-General’s view public criminal investigation agencies should not conduct their own indictable trials. We agree. To do so would effectively telescope the roles of counsel and client, and the key elements of independence and objectivity in public prosecution of serious crime, which Crown Solicitors possess, would be eroded. There is a risk that the prosecutor will not put the case:
... both fairly and firmly presenting all relevant evidence to the jury but not ... striving to get a conviction, especially where the evidence arguably does not warrant it.
99 In the Commission’s view, to preserve the independence of prosecutors it is essential that Crown Solicitors (or panel members instructed by the Crown Solicitor) remain responsible for all indictable prosecutions brought by public prosecuting agencies.
Should Crown Solicitors make initial charging decisions?
100 We remain of the view that as a general rule Crown Solicitors should not make the initial decision about what charges should be laid. That is because:
• Efficiency and practicality weigh in favour of the investigating police continuing to exercise the initial charging discretion. It will often be impossible for the police to refer a matter to a Crown Solicitor for charging. Many crimes are committed and detected in circumstances that require an immediate arrest and charge, for instance, a police officer attending a domestic violence incident, or a detective at the scene discovering a homicide suspect with a smoking gun.
• We agree with the submission of the Crown Law Office and the police that Crown Solicitors should be distanced from initial decisions, in order to maintain their necessary independence. The initial charging decision should continue to be regarded as part of the investigative process, rather than a prosecutorial function.
• In practice, Crown Solicitors do occasionally suggest appropriate charges when their advice is requested by the police. This will often arise in complex cases calling for expert legal knowledge.
• Development of charging standards for police and prosecuting agencies will assist in obtaining quality and consistency in the original investigative decision to charge.
101 The Commission recommends that, for these reasons, initial charging decisions should continue to be made by the police in accordance with the Guidelines, and by prosecuting agencies in accordance with guidelines to be developed with the assistance of the Crown Law Office. Crown Solicitors should not make initial charging decisions, although they are free to continue to give advice to the police or prosecuting agencies on the appropriateness of charges when requested to do so.
Should Crown Solicitors have a power to divert offenders?
102 We have considered whether Crown Solicitors should be empowered to divert offenders. In the Commission’s view, it is unnecessary to introduce such powers. Although it was our preliminary view that a power to divert might complement the earlier involvement and increased oversight of Crown Solicitors in indictable trials, in practice we think that the power would be seldom, if at all, used. We agree with the submissions that cases that are referred to Crown Solicitors are generally too serious for diversion to be considered.
Should Crown Solicitors, police and other prosecutors have the power to discontinue prosecutions? Should Crown Solicitors be able to direct or veto the initial charging decision?
103 Initially, the Commission proposed that all prosecutors should have the express power to discontinue a prosecution. We suggested this reform would reflect the existing informal process of discontinuing proceedings by not presenting evidence, or seeking leave of the Court to withdraw informations. Formal guidelines for exercise of the power were proposed to ensure certainty, transparency and consistency.
104 However, we have concluded that a power to discontinue is not warranted. The existing practice requires a charge to be withdrawn (or no evidence tendered) in open court. This ensures judicial supervision of the process, and exposes the decision to the public for comment. We believe the combined effect of judicial and public scrutiny to be sufficient incentive to ensure a principled decision-making process by prosecutors. In contrast, a power to discontinue would not be publicly exercised. A document would merely be filed or a brief appearance in court made. Even if guidelines existed to direct exercise of the power the added control of public and judicial scrutiny would not be available.
105 We also believe it desirable to maintain the current restriction on the power to grant a stay of prosecution. At present, only the Solicitor-General or Attorney-General may exercise this power. This ensures a high level of supervision of the system by the Law Officers who are ultimately responsible for all prosecution decisions. Several submissions favoured retention of the current position and discouraged introduction of a power to discontinue. Those who favoured a power to discontinue suggested a very limited scope.
106 In the Discussion Paper we also asked whether in cases of unusual sensitivity or difficulty, especially where public interest factors are of great importance, Crown Solicitors should be able to direct a prosecution or veto the initial charging decision made by the investigator. Examples might include where a suspected offender holds an important or sensitive office in or connected with the enforcement agency, or where there are significant international aspects to the prosecution. That question by implication asks the question already answered; should the power to veto or stay proceedings continue to be reserved exclusively to the Attorney-General and Solicitor-General?
107 A power to direct a prosecution or veto initial charging decisions can be seen as one aspect of a power to discontinue a prosecution. For the same reasons outlined already we have concluded that the Attorney-General and Solicitor-General alone should retain the power to stay proceedings. Cases so sensitive as to warrant veto of a decision to charge are unlikely to be appropriately dealt with by a Crown Solicitor. These cases can be adequately dealt with under the existing power of the Law Officers to issue a stay.
108 In our view the Law Officers should continue to have the power to direct that a prosecution take place, in exceptional circumstances. The power is recognised by section 345 of the Crimes Act 1961, which permits the Attorney-General, or any person authorised by the Attorney-General, to file an indictment without the need for a preliminary hearing. However, so far as the Attorney-General is concerned, the strong convention against personal intervention in particular cases makes this a residual power only and it is difficult to see how in modern times it could be properly exercised.
Should the police retain the prosecution of summary offences?
109 An important question that we have revisited is whether the police should continue to prosecute summary offences. In our Discussion Paper we considered that they should, and we remain of that view.
110 Given the considerable steps taken by police to establish an independent police prosecution service, and the substantial costs in transferring responsibility for these prosecutions to another body, the Commission confirms its previous view. The police should retain the prosecution of summary offences, subject to appropriate guidelines and mechanisms of accountability being put into place, as recommended in this report.
111 A related issue that we have considered is the position of prosecuting agencies. In consultation meetings, prosecuting agencies generally indicated that they wished to continue to prosecute summary offences. We agree, but again stress that appropriate guidelines and mechanisms of accountability are required (see paragraphs 121–126 below).
An autonomous, national, police prosecution service
112 The key themes of this report are the need for greater transparency, public control and accountability in the prosecution system. Towards those ends the Commission considers it vital to make investigative and prosecution decisions distinct and independent. A central platform of our Discussion Paper was the establishment of an autonomous, national, career-oriented prosecution service within the police to replace the current police prosecution service. We indicated that the new service should be administratively distinct from the criminal investigation and uniform branches of the police. This proposal was seen as so important that if it was not implemented the Commission signalled it would favourably reconsider the idea of a Crown Prosecution Service.
113 As a result of the proposals in the Discussion Paper a separate prosecution service has been developed by the police. The Police National Prosecution Service was formally established on 1 July 1999. The Commission welcomes the police initiatives in this area, and has been consulted as the new structure has developed.
114 The key features of the new Police National Prosecution Service are:
• provision of advocacy services in criminal and traffic summary prosecutions, Coroner’s inquest hearings, defended Youth Court proceedings and licensing hearings (for example under the Sale of Liquor Act 1989, or the Secondhand Dealers Act 1963);
• the decision to charge and the selection of charges remain part of the investigation process and therefore remain a decision for the investigator. The investigator also controls the post-charge investigation;
• all prosecutors are responsible directly to the head of the Police National Prosecution Service, to whom the Commissioner of Police has delegated operational control. Effectively the head of the Police National Prosecution Service exercises control of the prosecution process as an agent of the Commissioner of Police prosecuting on behalf of the Attorney-General and Solicitor-General;
• prosecutors assess whether the charges are appropriate and whether there is sufficient evidence to prosecute (in terms of the Guidelines); identify shortcomings in the investigation and evidence presented, and direct the investigator to remedy the shortcomings; may withdraw or modify charges; receive and modify briefs of evidence, interview and brief witnesses, develop strategy and tactics for the court hearing; and prosecute the matter in court;
• the conduct of post-charge investigation is be controlled by the investigator, subject to directions regarding procedure and evidence by the prosecutor.
115 The Police National Prosecution Service is structured around regional prosecution centres, and where appropriate uses prosecutors on circuit. Each regional Prosecution Service will in time have a briefing centre with specialised staff to manage prosecution files. The briefing centre concept is being piloted in Whangarei. The centre will have responsibility for ensuring criminal disclosure (see chapter 8 for the Commission’s recommendations on disclosure). The police intend to accommodate changes to the disclosure process by introducing new technology. They are also developing new national prosecution policies for matters such as diversion, disclosure, prosecution file format and codes of conduct:
to ensure a nationally consistent and uniform approach ... [and ensure that] fair and consistent prosecution decisions are made while maintaining a transparent and distinct delineation between investigations and prosecutions.
116 The Discussion Paper asked whether all members of the Police National Prosecution Service should be legally qualified. There was agreement in the submissions that this would not be immediately practicable, and some division of opinion over whether it was necessary. The police say that it is likely that the National Prosecution Service will be made up of a mix of qualified lawyers, who may or may not be police officers, and police officers without formal legal qualifications but with some specialised training. Career development will be encouraged – including training before taking up the position, ongoing training opportunities and encouragement for staff to achieve higher levels of academic qualification.
117 In July 1998, the Institute of Professional Legal Studies delivered a pilot advocacy training programme to police prosecutors. The pilot was considered a success and further courses have been held in 1998 and 1999.
118 The Commission is encouraged by the progress the police have made in implementing the proposals it set out in the Discussion Paper towards separating prosecution and investigation functions and welcomes the establishment of the National Prosecution Service. The Commission considers that the development of the National Prosecution Service is likely to achieve the necessary separation of investigation and prosecution functions which should improve the quality of decision-making and increase accountability. A higher standard of summary prosecutions in court is expected because of the greater specialisation and increased training of police prosecutors.
OTHER PROSECUTING AGENCIES
119 There is an increasingly large number of departments and Crown entities, other than the police, undertaking prosecutions in New Zealand. Indeed, with greater fragmentation of the State there has been considerable devolution of the power to prosecute to bodies removed from the direct supervision and control of the Solicitor-General on behalf of the Attorney-General. State prosecuting agencies, to name a few, include the Inland Revenue Department, Department of Labour, Accident Compensation Corporation, Department of Social Welfare and the Ministry of Fisheries.
120 The Attorney-General has ultimate constitutional responsibility for criminal prosecutions. The Commission considers that prosecuting crime is fundamentally a state function. It is, therefore, essential to ensure that all prosecuting agencies meet appropriate and publicly available prosecution standards. The obligation for setting and maintaining such standards lies with the Attorney-General and the Solicitor-General.
121 The Discussion Paper proposed that the Crown Law Office should establish an administrative unit to oversee the prosecution system, with a number of practical functions, including co-ordinating the Guidelines with the prosecution guidelines of other agencies. This is desirable as it will promote consistency of decision-making.
122 Submissions from prosecuting agencies outlined the general view that, while consistency of practice is desirable, the Guidelines are often not relevant to summary cases, and to departmental prosecutions in particular. A number of agencies have developed their own prosecution guidelines as a part of their compliance policy, using the Guidelines as a model.
123 The Commission was also interested in the existing administrative structures within prosecuting agencies that ensure the separation of investigation and prosecution functions. Submissions
and meetings made it clear that, within their own structures, prosecuting agencies are aware of the necessity to keep the two roles distinct.
124 Nearly all government departments or Crown agencies with responsibility for investigation and prosecution also have other roles (in contrast to the police). For instance, Work and Income New Zealand sees its primary role as delivering benefits to those who are eligible for them. Its role in preventing and prosecuting benefit fraud is a secondary one. Many other prosecuting agencies consider their prosecution policies to be a part of broader objectives. A prosecution policy might only form a part of a compliance programme that emphasises education and prevention rather than deterrence.
125 The Commission appreciates the broad range of factors that prosecuting agencies need to consider in relation to their prosecution policies. However, with increasing numbers of prosecuting agencies (in addition to the police) performing the important public function of prosecution we think that it is of great importance that charging standards are created to ensure consistency and quality of prosecutions. Prosecuting agencies should also ensure that their prosecutors are well trained in advocacy and evidence.
126 For these reasons the Commission recommends that the Solicitor-General should establish prosecution standards – for which the current Guidelines are a useful blueprint – for all state prosecuting agencies (that is, all agencies that are departments or Crown entities for the purposes of the Public Finance Act 1989, or are responsible either to the Attorney-General or to a Minister of the Crown). The standards should:
• apply to summary, as well as indictable, proceedings;
• suggest measures for ensuring an appropriate separation of investigation and prosecution functions; and
• reiterate that departmental prosecutors are responsible to the Attorney-General for prosecution decisions, not the Minister in charge of their department.