The Criminal Justice System: Reform is coming
Hon Simon Power
Minister of Justice
July 2009 Speech Notes
The Criminal Justice System: Reform is coming
One of the things that has struck me the most since becoming a Minister is the importance of time.
When I last spoke to the Institute of Policy Studies in February, it was to open a symposium on the causes of criminal offending.
It was timely in two ways.
It was the 100-day anniversary of the National-led Government.
It was also timely because the focus of that seminar was very much on my mind as I looked beyond the immediate post-election priorities for the justice sector.
Back in February, I quoted President Kennedy to characterise the surprises that a new administration faces when everything they claimed in Opposition turns out to be true.
So forgive me if I cite him again on the matter of time, when he said "We must use time as a tool, not as a crutch".
To me, that’s not just about making the best use of the limited time we have as Ministers to effect change.
It’s also about recognising that just because it may take a long time to do something is not a reason not to start.
The new Government moved quickly in its first three months to introduce a number of initiatives to improve the immediate response of the justice sector to crime -- to improve public safety.
Two of those pieces of legislation are already in place, and six further bills are at various stages in the parliamentary process.
From Opposition, I saw too many measures that would have had a direct impact on public safety left to languish, because the previous government appeared to run out of time.
But they had not run out of time -- they had run out of will.
The initiatives that our Government pursued in its early days were targeted in their approach, picking up on the gaps and imbalances in the system that posed a threat to public safety.
We made it clear to the courts that sentencing for offences against children must take the physical and psychological vulnerability of those victims into account.
We reversed the 2007 changes to bail laws, tipping the benefit of doubt back in favour of public safety for borderline cases.
We are introducing police-issued safety orders to protect victims of domestic violence by removing those who pose an immediate threat to them.
We are limiting parole for the worst repeat violent offenders.
We are disrupting gangs by increasing penalties for participation in organised criminal groups, and we aim to make it easier for Police to intercept their communications and remove gang fortifications.
We are expanding the range of orders that the Youth Court can hand down to a core of young offenders, to include mentoring, drug and alcohol treatment, and parenting programmes.
We are making wider use of DNA sampling and matching, in recognition that it is the modern day fingerprint.
And we are introducing a levy on offenders to fund assistance for victims of serious crime.
That was just the first 100 days.
There is much, much more to do.
Not all of the 100-day initiatives fit exclusively into the framework of improving public safety.
By introducing a victim compensation scheme, we have acknowledged that the imbalance in the justice system goes beyond public safety.
The compensation scheme is being accompanied by a review of the Victims Rights Act 2002, as well as the range of services available to victims.
One of the messages we heard from the public at the last election was that the rights of victims had come a distant second to those of offenders.
But there is also another imbalance at play here.
A select committee inquiry in 2007 found that victims sometimes felt alienated from the criminal justice system, but particularly by the court process.
There is something wrong when the only people that are in court through no fault of their own are the ones who feel shut out of it.
It raises the question, who is the justice system for?
Since I last spoke to you, one of my priorities for the justice system has been to refocus it on the participants who don’t earn their living from it.
For a start, that means improving the timeliness and efficiency of criminal court cases.
In the past few years, court waiting times have increased to unacceptable levels.
Parties now wait for an average of one year for District Court jury trials, and sixteen and a half months for High Court jury trials.
Courts are operating under an excessively complex and outdated legislative framework.
We are seeing repeated adjournments because there are inadequate incentives on parties and their counsel to address matters out of court and progress cases as they should.
Late guilty pleas are wasting court time.
Relatively minor cases can be tried by jury, which increases the length of trials and costs involved.
There is an over-reliance on onerous paper-based processes and under-utilisation of modern technology.
These problems not only create inefficiency, but frequently delay justice from being delivered to victims and the accused, as well as causing inconvenience to witnesses and jurors.
In fact, the Ministry of Justice estimates that there are more than 14,000 unnecessary court appearances each year.
Delays in trials have also contributed to increases in the prison population, as those remanded in custody have to wait longer to have justice served -- from an average of 35 days to 55 days in the past decade.
The Ministry and the Law Commission have released a series of proposals that are expected to lead to less delay, fewer adjournments, shorter trials, fewer stays of prosecution, increased efficiency, and, most importantly, a more satisfactory process for victims and witnesses.
These proposals include:
Requiring parties to discuss cases in an attempt to resolve
them, to avoid unnecessary court appearances.
• Requiring the defence to identify issues in dispute so the court can focus on those issues at trial.
• Removing the prosecution’s ability to choose a jury trial for something that could go to summary trial, and raising the jury trial threshold from more than three months to more than three years.
• Improving the process to determine whether jury trials are held in the High Court or the District Court.
• Clarifying the rules for proceeding in the absence of the defendant.
We are also considering introducing legislation to enable the different participants in criminal proceedings to appear by audio-visual link.
This will help not only to speed up the trial and hearing processes, but it will also reduce the need for transporting prisoners, and offer a net saving on security and court attendance costs of between $11.6 and $17.8 million over 10 years
These are complicated issues, but the proposals will get another airing when we release a draft bill for further consultation at the end of this year, with a view to enacting it by the end of next year.
A participant-driven perspective is also behind the review of legal aid that is being undertaken in parallel to the criminal procedure simplification reforms.
We have already acted quickly to ensure community law centres had enough funding to stay open.
We want to make sure people who are unable to afford their own legal representation can access it through legal aid.
Despite various reports into the administration of legal aid, or whether the eligibility is at the right level, we haven't had a fundamental discussion about whether the system works for those it is supposed to serve, or those who pay for it.
The review which I established in April, led by Dame Margaret Bazley, will consider all aspects of legal aid.
In particular, it will consider how the system can be best structured so it delivers effective legal services to those who need them the most, in a way that is cost-effective and sustainable.
Quality is important, because that in turn will have an impact on the wider justice system, and especially on the way the courts operate.
Without wanting to prejudge the outcome of the review, I do think we should consider whether or not services should be funded directly to clients, or to an organisation that would do the work as a matter of course.
As an example, I watched the Public Defence Service in action at Manukau District Court last month, and was impressed with the level of preparedness of the Public Defenders, and the speed with which cases were progressed through the court.
Evaluations of the trial have found that the flow of Public Defence Service cases through the court system is faster, yet these savings were achieved with no difference in outcome for the clients.
I accept that any fundamental changes that result from this reform of the court system will encounter some resistance from those who work within the system.
I would merely ask them to put aside their institutional interests and consider if the justice system works from the perspective of those who it is intended to serve.
Tradition is not a good enough reason not to change.
As fundamental as this reform of the criminal court process is, it still only deals with the response of the justice system to crime once it has occurred
The historic focus on responding to crime after the fact is understandable.
Governments are responsible for police, courts, and corrections – agencies that predominantly react to crime.
Changes can be made to policy settings within each agency that have a direct – and often quantifiable – impact on the way offenders are dealt with.
And, noting once again the importance of time, such changes are also able to have an impact in relatively short order.
(Such as within three years, to pick an entirely random example).
As I’ve said before, the danger is that governments become fixated on outputs rather than the outcomes – the things they know they can change rather than the things they could hope to change.
That, in turn, leads to a misdiagnosis of the real problem.
Take the prison population, which has ballooned by more than a third since 2003, and is now at record levels.
The previous government viewed the number of prisoners as the actual problem.
Building four new prisons was certainly money that could have been better spent, although it didn’t help that they blew the budget out by half a billion dollars.
The prescription of the last government for the problem of too many prisoners was to let them out, by way of various changes to the sentencing and bail laws.
The then Minister of Corrections claimed that “almost 30 percent of the inmates” in jail are “no risk to society”.
It’s an attitude that persists today – as if the prison population has been inflated by some sort of administrative error or political gamesmanship.
But if we fixate on the number of prisoners at any point in time, we risk forgetting what came before.
The people in our prisons right now are there because they committed crimes against other New Zealanders.
Even if there had been no changes to sentencing laws, we would have witnessed an increase of some sort in the prison population – because a 51 per cent increase in reported violent offending over the last decade cannot go unanswered.
That doesn’t mean the high prisoner muster isn’t an issue – it is.
But it is primarily a symptom of a much more fundamental problem – crime itself
Preventing crime from occurring in the first place is not something that previous governments have prioritised.
As I’ve said before, it’s much harder to count the number of crimes we may have prevented.
And, to return to the importance of time, any crime prevention policies are unlikely to generate immediate results.
But the longer the task may take, the more important it is to start the work now.
In April this year, the Hon. Pita Sharples and I co-hosted a Ministerial Meeting on the Drivers of Crime.
We brought together a wide cross-section of those involved in the criminal justice sector, including representatives of government and non-government agencies, iwi leaders, judges, police, academics, church leaders, and MPs from across the political spectrum.
Although many of the participants would otherwise disagree on the way to deal with offenders after they have committed crime, there was a remarkable degree of unity in identifying the drivers of crime.
(This may explain why it has never been an election issue).
Unsurprisingly, it was acknowledged there is no simple answer about what drives crime.
The most important factors stem from family and community environments, such as poor parenting, poor educational attachment, and disconnection from societal norms.
However, it is the interplay between factors that appears to make the difference
For example, childhood maltreatment is a universal risk factor for antisocial behaviour, but that does not mean that all maltreated children become delinquents.
Similarly, there was agreement that the underlying drivers of crime are similar for Maori and non-Maori, but that the prevalence of those risk factors tends to be higher for Maori.
The over-representation of Maori in the criminal justice system as both offenders and victims means that addressing these drivers in a concerted way could make a real difference.
The Ministerial Meeting was remarkable, more for the degree of consensus that emerged around these issues for the first time.
The proceedings have been collated and publicly released, and the participants have since had the opportunity to make further submissions, which I am publicly releasing today.
In the coming month, the Government will also consider a number of priorities to start addressing the drivers of crime.
The key feature of these proposals will be a co-ordinated approach across government agencies, and I am pleased to say that social sector chief executives have already given their enthusiastic commitment to addressing the drivers of crime.
I am under no illusions as to how long it may take before such policies begin to have a recognisable impact.
But once again, that is not a reason not to start.
Alcohol is one of the factors that could have a more immediate impact on crime levels if we make the right policy changes to the current law.
The conclusion of those who attended the Drivers of Crime meeting was that alcohol was a facilitator, rather than a driver of crime.
It reminded me of something a guy I went to university with used to say: "A drunk man’s words are a sober man’s thoughts".
When I sat in the back of a District Court and a Family Violence Court last month, I was struck by just how many of the cases under consideration could have been averted if not for the presence of alcohol.
We need to tread carefully to ensure that all consumers are not punished by efforts to limit the damage alcohol can cause.
But the law surrounding the sale and supply of liquor must be dealt with in a substantive way – and dealt with once during this parliamentary term – if we are to begin to have any impact on the crime rate.
Therefore, it is my intention to address the issues raised in the Law Commission’s forthcoming report as part of one package, which includes the Sale and Supply of Liquor and Liquor Enforcement Bill currently before the House.
I’ve asked the Law Commission to deliver its final report by March, to enable the package to be passed by the end of next year.
At the same time, the Government will continue to reform other elements of the criminal justice system – and we are just getting started.
Work is well under way on a further piece of domestic violence legislation to improve the responsiveness of the Family Court and enhance the protection of children.
This will include proposals to:
• Clarify when children remain
covered by a protection order.
• Prevent the wrongful removal of children from New Zealand.
• Better align the Domestic Violence Act 1995 and the Care of Children Act 2004, in particular improving protection for children exposed to psychological abuse
As well as this, the Law Commission is close to completing a review of Part 8 of the Crimes Act, dealing with offences against the person.
I have asked the commission to pay particular attention to the appropriateness of penalties for crimes against children.
Politics is the marketplace for ideas.
So, in addition to these changes in the family violence area, I believe we need to have an open debate about the way in which sexual violence cases are conducted.
In this regard, I am currently considering potentially far-reaching reforms, including:
• The introduction of a positive definition
• A requirement that the court consider any steps the defendant may have taken to ascertain whether the complainant had consented, and
• Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.
I have also asked the Law Commission to look at alternative approaches for dealing with sexual violence cases before the courts, with specific direction to investigate inquisitorial models.
This is a debate we need to have if we want to improve on the reporting rate of between 9 and 12 per cent for sexual violence offences.
Finally, the partial defence of provocation in homicide cases will be the subject of reform.
I want to say right now that I do not believe this defence has any place on the statute books.
It wrongly enables defendants to besmirch the character of victims, and effectively rewards a lack of self-control.
It’s a full agenda which will only grow bigger as the Drivers of Crime policies come on stream, and other issues develop.
And now you can see why I’ve discovered a new appreciation of time.
Because it’s already Day 247.