Borrows: 2013 in Courts
Hon Chester Borrows
Minister for Courts
7 March 2013
Speech to the Auckland District Law Society – 2013 in Courts
Let me begin by extending my thanks to Auckland District Law Society President Frank Godinet for having me here to address you this evening. Greetings to you, and also to your distinguished guests.
It’s an honour to be here today speaking to a group of New Zealanders that play such a critical role in our justice system.
I want to start by saying that as Minister for Courts and Associate Minister of Justice I am grateful for your work. And I’m proud of the justice system that your work supports.
Our justice system is built on a proud tradition of an independent, free and fair judiciary and backed by a court system that is accessible to all.
But I’m aware that tradition can be a double edged sword, so today I’m going to talk about some of the big changes happening throughout our justice system.
I want to preface this by pointing out that while change is never easy, change in our courts is particularly challenging.
The courts do not operate in a vacuum – they are part of a much larger, and inextricably linked, justice sector.
Both for me as Minister, and for courts staff and officials, it means that how well we do our jobs depends not just on us, but on the agencies and individuals we interact with.
Courts have no sway on how many people the Police, or other prosecutors, place before us.
We cannot influence – nor should we try to influence – how much time, care and consideration the judiciary feels each case needs.
The legal profession – you and your colleagues – have your own incentives and priorities in how you work with the courts.
And sometimes the defendant can make life difficult for us, either a part of exercising their rights to a robust defence, or by fleeing and refusing to face the consequences of their actions.
In this context, trying to make changes to the court system can be incredibly challenging.
Let me give you an example, from a project that I have been working on since I first became Minister for Courts at the end of 2011.
What we are looking at is trial changing where the defendant is placed in the courtroom.
By tradition, our defendants sit or stand in the dock.
By convenience, our docks are often placed at the back or side of the court, possibly behind glass screens.
It leaves defendants disconnected from what is going on.
They’re separated from their lawyer, who is speaking to the Judge on their behalf.
They’re often more concerned with the public gallery and who is there to support them.
I think this is just nuts.
Especially at the sentencing stage, what’s going on in the court is about the defendant.
It’s about what they have done, about what is going to be done to them as punishment, about what they are going to have to do to make it right.
It seems a no-brainer to me that unless there are specific security concerns, the defendant should be up the front, shoulder-to-shoulder with their lawyer.
The judge should be able to look them in the eye, make them understand that it was their actions which brought them here today, and only their actions in the future which can keep them from coming back.
From a bar and bench who so loudly proclaim their commitment to justice, I expected at the very least an openness to trying new ideas which might improve the way defendants engage with the courts.
Instead, some judges leapt to concerns about security, which both my own experience in the courts as well as the ever-improving court security statistics tell me were over-sensitive.
Surely taking serious and sensible measures to keep judges safe does not require shutting down any attempt at innovation in our courts?
Counsel were also less-than-enthusiastic. I won’t argue that some defendants might lack the understanding of personal hygiene that we might hope for. However, I’d hoped that a commitment to serving one’s clients was not dependent on aromas.
It surprised me the way that a lawyer’s duty to the court and their client – to justice – took a back seat to personal convenience in some of the discussions I’ve had with lawyers on this idea.
Despite these early reservations, progress is being made.
I appreciate the support that Chief District Court Judge Doogue, and first Judge Dawson and now Judge Hinton at the North Shore Court, have given to this initiative. With their help that trial is about to get underway.
I look forward to seeing the results it produces, which I still firmly believe will show an improvement in the way defendants engage with, and responds to, the court process.
I present this to you as an illustration of the challenges we face in trying to deliver a 21st century court system.
I hope it will be food for thought.
Because change can be scary, and it should never be made uncritically.
Government does not have a monopoly on good ideas, and is more than capable of coming up with bad ideas.
We can, should, and must, engage in constructive debate on ideas.
I hope that, from all the different players in the justice sector, we can do that in a way which places first the needs of those who come into contact with the justice system – particularly those who do so as a result of the actions of others.
It is this kind of thinking – focused on how we deliver the best court system for its users, which has motivated me in some of the changes we are making.
Some of these changes we are eager to make. Others have been necessary rather than desirable.
They come at a time when this Government has had real success at reducing crime, which is at a 30 year low.
That success provides the opportunity to modernise the justice system. It lets us use technology to provide better services and make our society even safer.
I want to talk first about the reform of criminal processes. As you know, criminal procedure has been heavily criticised over the past 10 to 20 years. Not only have our courts had to operate under increasing cost pressures, but they have been subject to far too much delay.
We have heard persistent criticism that criminal matters simply take too long to be resolved. We agree this cannot continue. Delay causes unnecessary suffering and grief to everyone in the system and to their families and supporters. Justice delayed is justice denied.
As well as excessive delay, the Courts have had to navigate a horribly complex legislative framework. It’s bad enough for lawyers, but it’s often impossible for lay people to fathom. It means the Courts’ decisions can be hard for people to understand – particularly given that procedural points are often obscure and not well-explained or reported. That can reinforce perceptions that the system is biased in favour of defendants, or against victims.
Compounding these problems, old legislation governing criminal procedures has prevented the courts keeping up with modern developments. It has required them to maintain archaic paper systems. And it has prevented them from using new technology to exchange information and communicate with people.
These conditions undermine public confidence in the courts, our system of justice, and the rule of law. That’s why we have taken the opportunity to simplify criminal procedure, to bring it up to date with 21st century requirements, and to speed up proceedings.
You will all be aware that the Criminal Procedure Act was passed at the end of 2011. A few small parts are already in force, and the rest of the changes take effect from the middle of this year. I am not going to go into huge detail on what this will mean in practice. Rather, what I want to do now is talk about the underlying theme of the reforms.
We want to get things moving. We want parties to progress their cases outside the courtroom where practicable. We want a high level of cooperation between all the participants in the court process, but particularly between prosecutors and defence lawyers. The purpose of this is to get cases resolved in the most appropriate way, more quickly and with greater efficiency.
These reforms will fundamentally change the way criminal lawyers, and others, work in the courts. I strongly encourage you to take advantage of the further opportunities you will have to learn about the Act. The successful implementation of such a significant reform will require the active participation of everyone involved in criminal work.
Your leadership will be important. These changes will only work if you are willing to engage constructively with the new system. I have no doubt that over the next few months, as we work towards these changes going live, we will at times disagree. They will be disagreements driven, on both sides, by a genuine desire to produce the best and most effective court system for New Zealand.
So what I ask is that you work with us to make these changes a success. I make this request confident that I can depend on you and your colleagues to meet it. The help we have already had from the private bar has been significant. What’s more, as much as many people – lawyers included - take great glee in maligning the legal profession, you have a long and proud tradition of putting your own views and interests aside to do right by your clients.
Because the benefits of these changes are worth having. Not just for those of us who work in the court system, but also for those who are there unwillingly such as victims and witnesses. Fewer wasted appearances at which cases are simply not progressed, quicker disposal times, and a generally more comprehensible and efficient system. Over time, these changes will also allow us to use technology to further streamline processes and move away from the Courts’ reliance on paper. This change must increase confidence in the Courts, and deliver faster, fairer justice.
The Criminal Procedure Act will not operate in a vacuum. While it is an excellent start to providing the conditions necessary to improve the way the criminal court system works, further work is required to improve the way court services are delivered.
The courts’ administration must rethink how it manages its services, as required by the Act.
As I have already noted, the new Act has removed barriers that have prevented the introduction of many modern information technologies. You can therefore expect changes brought about by the expansion of information technologies to be a regular feature of the courts in the future. These changes will start with electronic filing of Police charges from July, saving 86,000 hours of police and court staff time per year and resulting in faster and better services for court users.
However, simply layering electronic technologies across outdated service delivery systems will not be enough. Rather, to make the most of the opportunities provided by the new Act, there needs to be a fundamental rethink of how our Registries operate so they reflect 21st century business practice and, most importantly, how those who find themselves involved in the justice system access the appropriate Registry services and information they need.
We are taking the opportunity that falling case volumes provide to improve how District Courts are administered to ensure we spend public money more wisely and to modernise services so they are more in line with public expectations.
In October last year I announced that nine small courts will now only be used for hearings, rather than being open five days a week, and that four of the smallest courts will be disestablished.
The flipside of closing small District Courts that sit empty three or four days a week is that we can invest where it is needed, in places where there is high demand and where services have been disrupted like Christchurch, Manukau, Dunedin and Masterton.
We want to provide courts that are fit for purpose, have good facilities and security and provide the full range of services court users expect to receive.
We know we can make these changes successfully– we are already operating this model in some places and it’s working. Hearing only courts already operate successfully in areas of low demand and ensure there is a broad coverage of places throughout the country where people can have hearings locally.
A basic principle is that we shouldn’t make people come to courthouses to access services unless it’s really necessary. Courthouses should be used for hearings and people should be able to do far more online and in ways more convenient to them.
In the second decade of the twenty-first century people are shopping, banking, and paying bills online. Yet we still expect people to come to a courthouse to carry out basic transactions, instead of providing services in a way that suits them.
More than a decade ago, the Law Commission pointed out that emerging technology provided opportunities to reduce our reliance on physical courthouses. And technology has only improved since then – from fax machines and dial-up internet to email and ultrafast broadband.
We are already moving in this direction. To cater for people wanting alternatives to having to go to a courthouse we have introduced online application and fee payment for the Disputes Tribunal and now allow people to dispute a fine online.
The public response to these services was decisive. In the first month after we activated the ability to dispute a fine online, 40 per cent of challenge applications were made online. No fanfare, no advertising, just court users taking up the chance to access services on their terms.
And they were rewarded with good service, with 99 per cent of those applications responded to within 24 hours.
In the future system, people will have greater choice as to how they access services, which will be delivered through multiple channels, including a variety of on-line self-service options, or facilitated locally by Justices of the Peace or audio visual links.
Processes will be simpler, consistent and faster. Many will be automated and the courts’ dependence on paper will be minimised. Administrative functions will be coordinated and prioritised at a regional and national, rather than a local, level with work managed around common tasks or functions.
Ultimately, modernising courts will create a system that is far easier and simpler for the public to use and understand, delivers faster results and will be better for the people who work in it and who make it work.
Make no mistake, we understand the challenge ahead. Our experience with the operating model for Auckland Family and Civil courts last year has shown us that it is challenging to change when things are old-fashioned and have been done the same way for so long. It doesn’t matter if the old system has its flaws – it’s what people know and they don’t like or necessarily cope well with change.
That experience also highlighted the importance of our work to modernise. The observation was repeatedly made that some of our problems could have been avoided with a fully electronic case and file management system.
The Ministry of Justice now takes the problems in the Auckland family Courts very seriously. It has invested the time and resources to fix these problems. But I want to acknowledge that we did not appreciate the scope of the issues you were raising as quickly as we should have.
I hope that we now have turned a corner for the Auckland Family Courts. The numbers certainly seem to be heading in the right direction, and I’ll be interested to hear later on from you how well the experience supports that.
It would be remiss of me to mention these challenges without thanking the private bar for your help in overcoming them. Identifying and fixing these problems would never have been possible without the constructive way you engaged with us in finding solutions.
Our justice system is based on enduring and important principles. Everyone working in the justice system needs to respect and protect those principles. Yet that cannot mean setting them in stone and pretending that nothing has changed since King John signed the Magna Carta.
Our challenge is to build a 21st century court system. A system which upholds the defining principles of the rule of law, of free and fair justice, but does so within the social context of our time.
The changes we have made, and will continue to make, to our court system will help us meet this challenge. It will bring that tension – between principle and context, where theory meets reality – to the fore.
So, I hope that you will all join us this year in taking another step towards a 21st century court system.
Thank you again for your time.