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Classification of In-House Public Prosecutors:
Solicitor-General’s Guidance
(Effective 1 July 2020)
1.
This classification
framework
applies to in-house lawyers who lead public prosecutions
in the District Court and are employed by public service departments and Crown
entities. It creates a career pathway environment which al ows for capacity building,
training and supervision of prosecutors. It is designed to assist agencies with allocation
of criminal prosecutions to the appropriate level of in-house counsel, thereby
enhancing the prosecutorial capability of the public prosecutions network, particularly
in relation to advocacy.
2.
The requirements ensure each level of prosecutor has the following skills, which can be
learned as a prosecutor progresses:
2.1
Level 1: Understands court protocol and etiquette.
2.2
Level 2: In addition to level 1 skills, has a good understanding of criminal
procedure, solid ability to lead a prosecution and can appropriately handle
witnesses.
2.3
Level 3: In addition to level 2 skills, has comprehensive criminal litigation skills
suitable for undertaking prosecutions for more serious offending.
3.
Our expectation is that all prosecutors employed by an agency wil be classified. A
prosecutor who has not yet been classified cannot appear in Court on their own, even if
only to deal with an administrative matter.
Key principles
4.
Flexibility and discretion: This document outlines the ordinary criteria for
classification as general guidance against which classification applications wil be
measured. It is by no means a prescriptive or exclusive code. Departures from the
guidance wil be considered on a case-by-case basis and accommodated in appropriate
cases where the applicant has experience akin to the criteria described below (for
example, a prosecutor that has substantial criminal experience may warrant a more
flexible approach in relation to time frames).
5.
Experience: The main focus of the classification assessment for non-Crown
prosecutors is their level of experience in criminal litigation and in-court advocacy, in
particular judge-alone trials (JATs).
1 Consideration wil also be given to other hearings
such as pre-trial hearings involving witness work comparable to that of a JAT.
1 JATs include defended infringement notices, provided that oral evidence is cal ed, before Community Magistrates and
Justices of the Peace.
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Experience in other areas of litigation (eg civil, administrative or family litigation,
clerkship to the judiciary etc) will be taken into consideration and compared, to the
extent it is practicable, to the appropriate equivalent level of criminal litigation
experience.
6.
Junioring and secondments:
Prosecutors in departments and Crown entities may not
be exposed to the same frequency of court appearances as their col eagues from the
Crown Solicitor network. This is particularly evident with regards to trial experience.
To ensure prosecutors maintain high levels of performance, encouragement is given to
junioring and secondment arrangements with other prosecution agencies, as wel as
Crown Solicitors, with a view to enhancing the variety and intensity of the criminal
advocacy experience.
Supervision and peer review
7.
Level 1 and 2 prosecutors are required to have certain written work peer reviewed by
more experienced prosecutors:
7.1
At level 1, all court documents should be peer reviewed by a level 2 (or higher)
prosecutor.
7.2
At level 2, al substantive written submissions (such as submissions on pre-trial
applications or sentencing submissions) should be peer reviewed by a more
experienced prosecutor (who may also be a level 2 prosecutor).
8.
Level 1 and 2 prosecutors are also required to be directly supervised for certain court
hearings. Level 1 prosecutors must always be directly supervised when appearing in
JATs. In other words, they may only appear as second counsel. We expect that
managers wil be ensuring that for other court appearances level 1 prosecutors wil be
appropriately supervised as needed, either directly by having a more senior prosecutor
appearing with them or indirectly by observing from the public gal ery and providing
feedback after the hearing. As Level 1 prosecutors gain more experience managers may
consider that they can conduct very straightforward appearances without supervision in
court (whether direct or indirect). Level 2 prosecutors may conduct JATs on their own,
but must be directly supervised by a more experienced prosecutor (who may also be
level 2, or level 3) for their first three JATs. We would expect that a level 2 prosecutor
would already have acted as second counsel on JATs prior, but if not then they may
need to be supervised for more than three JATs.
9.
Direct supervision in the context of a JAT requires the prosecutors to appear together
(with the supervisor appearing as either lead counsel or second counsel), so that the
supervising prosecutor can offer advice/guidance throughout the JAT.
10.
The prosecutors who are peer reviewing submissions and providing in-court
supervision need not always be the same prosecutor. Nor do they need to be the
prosecutor’s manager. The manager’s role is to guide and mentor the classified
prosecutor and, when appropriate, make recommendations to support applications for
re-classification.
Application for classification
11.
Al prosecutors will be classified by the Solicitor-General. Classification applications
should be submitted by the agency’s Chief Legal Advisor (CLA), thus reflecting their
own professional assessment of the prosecutor and recommendation that the
prosecutor be classified or reclassified.
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12.
Where a prosecutor can satisfy the criteria set out in this framework, it will still be for
their manager/supervisor to decide whether they are suitable for a particular level of
classification and progress applications only where appropriate. The quality of a
prosecutor’s work should be considered before an application is made.
13.
Applications to the Solicitor-General for classification or reclassification may be filed at
any time with the Public Prosecutions Unit by emailing
[email address].
14.
All classification applications to the Solicitor-General should include professional
evaluation of the prosecutor’s skil s by their manager, other appropriately qualified
prosecutor or a senior Crown prosecutor. Applications for classification as level 3 must
be supported by a recommendation from a level 3 prosecutor within the agency (if the
CLA is not a level 3 prosecutor themselves), or a senior Crown prosecutor. In either
case the prosecutor making the recommendation must have direct knowledge of the
applicant’s abilities
15.
Applications should identify how the classification criteria are met. If relevant, the
application should identify where one or more of the criteria are not met, and how the
prosecutor demonstrates an equivalent level of experience or training.
16.
Applications for level 3 classification should include lists of JATs and other significant
litigation conducted by the prosecutor, with a brief description of what those matters
entailed in terms of prosecutorial experience. In particular:
16.1
The type of charges (including which legislation).
16.2
The role played by the prosecutor (eg sole, lead/ or second counsel). If not
sole counsel, the role played in Court should be clearly set out (for example,
made opening submissions, made closing submissions, led prosecution
witnesses, cross examined defence witnesses etc).
16.3
Any significant features of the case (eg number of witnesses, length of the
trial, any particular complexities).
17.
Where two prosecutors have conducted a JAT together, they may both be able to count
that JAT against their JAT experience, depending on the roles they each played. This
wil be a subjective assessment that is undertaken on a case by case basis; the
application wil need to be clear as to exactly what role the applicant played in the JAT
compared with the other prosecutor. The focus wil be on the amount of witness work
that each prosecutor has undertaken (that being the distinguishing feature of a JAT
compared to other types of hearings which al involve oral submissions).
General
18.
Where more than one prosecutor is appearing at a hearing, only lead counsel is required
to have the necessary classification for that hearing. Lead counsel wil be responsible
for the case and for the conduct of second counsel. It wil be for lead counsel to decide
what role second counsel plays in the hearing (for example whether they are merely
observing or will take a more active role such as making oral submissions, leading
evidence or cross-examining).
19.
Where granted, classification decisions will be valid for three years, after which time an
application for reclassification will be required.
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20.
Where a prosecutor does not meet the criteria to be reclassified at the same level, a
decision may be made to classify the prosecutor at a lower level where appropriate.
21.
Prosecution agencies may apply to the Solicitor-General for general or specific approval
to appear in Court as an exception to this framework.
22.
Agencies may choose to voluntarily apply stricter classification criteria. Where
practicable, and if considered desirable, agencies may also choose to adjust and extend
this framework to non-criminal areas of litigation or to non-lawyers who appear in
Court for the agency.
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Counsel Classification - Non-Crown Prosecutions
Level 1 Prosecutor
Level 2 Prosecutor
Level 3 Prosecutor
Entry requirements2
Standard of previous
• Law degree; and
New Level 2 prosecutor:
New Level 3 prosecutor:
experience
• New Zealand practising certificate.
• At least one year of recent
3 criminal
• At least two years of recent
5 experience as a
litigation experience; and
Level 2 prosecutor, or three years of
• Led at least five court appearances before a
recent
6 criminal litigation experience; and
Judge
4, including one sentencing hearing.
• Conducted at least five JATs (can be with
supervision).
Existing Level 2 prosecutor:
Existing Level 3 prosecutor:
• At least three court appearances each year,
• Conducted at least two JATs since last
including one sentencing hearing.
being classified as level 3, and within the
last five years.
Standard of previous
Relevant in-house training regarding the
At least one of the following:
At least one of the following:
training
agency’s prosecutions; and
• PPS Basic Advocacy course;
• PPS Advanced Advocacy course;
Registered for or completed at least one of the
• New Zealand Law Society (NZLS)
• PPS Senior Prosecutor course;
following:
Introduction to Criminal Law Practice
• NZLS Expert Witness course;
•
course;
Police Prosecution Service (PPS) Intro to
• NZLS Litigation Skills course;
Prosecutions Course;
• Departmental Prosecutors Forum
• NZLS Advanced Litigation Skills course;
•
Bootcamp;
Equivalent in-house or external training.
• Equivalent in-house or external training.
• Equivalent in-house or external training.
Operation of a classified prosecutor
Restrictions on work
• Al court documents should be peer
• Substantive written submissions
7 should
None (however peer reviews are encouraged).
reviewed by a level 2 (or higher)
be peer reviewed by a more experienced
prosecutor.
prosecutor (who may be a level 2 or level 3
• Should be directly supervised for court
prosecutor).
appearances at the discretion of the
• First 3 JATs must be conducted under
prosecutor’s manager.
direct supervision from a more
•
experienced prosecutor (who may be a
Cannot lead JATs, but may appear as
second counsel.
level 2 or level 3 prosecutor).
• Cannot lead category 3 JATs, but may
appear as second counsel.
2 This is a summary document of experience which wil guarantee classification at each level. As set out at paras 4-5, the criteria are flexible and comparable experience may be taken into account.
3 Within the three years immediately prior to the application.
4 These may include, for example, Case Review Hearings; pre-trial hearings other than first or second appearances (eg name suppression, bail, disclosure, admissibility of evidence) or sentencing
hearings.
5 Within the five years immediately prior to the application.
6 Within the five years immediately prior to the application.
7 Such as submissions on pre-trial applications, written opening/closing submissions, and sentencing submissions.
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