Legal Services Commissioner
Justice Centre I 19 Aitken Street I DX SX10125 I Wel ington
T 04 918 8800 I F 04 918 8820
[email address]
18 April 2023
I Brown
[FYI request #21959 email]
Our ref: OIA 102998
Tēnā koe I Brown
Official Information Act request: Duty lawyer operational policy
Thank you for your email of 1 March 2023 to the Ministry of Justice (the Ministry), in which
you request for information about the revised duty lawyer operational policy as part of a pilot
under the Criminal Process Improvement Programme (CPIP).
Your request has been referred to me as it falls within my responsibilities as Legal Services
Commissioner and is being managed in accordance with the provisions of the Of icial
Information Act 1982 (the Act).
On 30 March 2023, the Ministry sent you a decision letter granting your request. I would like
to acknowledge that due to an administrative error, that letter was sent to you a day after the
final day for responding under the Act.
I have set out and responded to each part of your request in turn below.
On 18 October last, the Legal Services Commissioner, Tracey Baguley, wrote to
legal associations in relation to the above policy, specifically about "recent media
reporting of concerns around the additional payments to duty lawyers for advancing
specific criminal proceedings."
The letter then said that "(a)fter seeking further feedback from the profession, I have
decided to undertake a review to develop options for addressing the concerns while
stil delivering improvements in access to justice from more meaningful court events
and less delay. The review wil be assisted by a working group of senior members of
the legal profession, Ministry officials and representatives of the Public Defence
Service."
1.
Copies of the communication/s seeking feedback from the profession as referred to
by the Commissioner
2.
Copies of the feedback provided by the profession, whether by groups, associations,
societies, or individuals
3.
Al internal correspondence relating to each of the above, including but not limited to
internal emails, reports, minutes, or discussions
I requested the feedback in a discussion at the CPIP Steering Group (which includes
representatives from the legal profession) on 18 October 2022. This was a conversation at
the Steering Group and no minutes were taken. Following the discussion with the Steering
Group, I made the decision to suspend the additional payments to duty lawyers for
advancing specific criminal proceedings. That decision was captured in the letter to the legal
professional bodies the same day. There was no internal correspondence relating to the
decision.
I am therefore refusing these parts of your request under section 18(e) of the Act, as the
document alleged to contain the information does not exist.
4.
The names of all members of the working group;
5.
Records of the appointment of those members, any meetings (and minutes thereof),
discussions (however conducted), research, analysis, or other documentation
created by or provided to the working group
In response to part 4, the following table outlines the names of the working group members. I
am withholding the names of the 4 representatives from the legal profession under section
9(2)(ba) to protect information that is subject to an obligation of confidence.
Name
Role
Tracey Baguley
Legal Services Commissioner
(Chair)
Marie Shields
Programme Manager, Criminal Process Improvement
Programme
Harsahiba Kaur
Workstream Lead, Criminal Process Improvement Programme
Robert Ives
Manager Legal Aid Services
Peter Hutchinson
Director, Public Defence Service
Sarah McPearson
Secretariat, Criminal Process Improvement Programme
Records of appointment of those members do not exist as the working group members were
appointed at the Steering Group meeting on 18 October 2022 from its membership and from
the CPIP team. I am therefore refusing part 5 of your request under section 18(e) of the Act,
as the document alleged to contain the information does not exist.
Although there have been offline discussions, the working group has met formally once, on
19 October 2022. The list of documents created by or provided to the working group, and my
decisions on their release is appended to this letter. Copies of the documents are enclosed.
6.
Any reports, whether interim or final, of the working group to any person;
There were no reports created by the working group. I am refusing this part of your request
under section 18(e) as the information sought does not exist.
7.
Any correspondence to any minister or ministerial office in relation to any of the
above.
I have interpreted this question as relating to the decision to pause the additional payments
to duty lawyers and convene the working group, the proceedings of the working group, and
documents created by or for it.
Enclosed to this letter is the briefing
Changes to the Duty Lawyer Operational Policy Pilot
provided to the Minister of Justice. These documents have been partially released to you as
some information has been marked out of the scope.
I am satisfied there are no other public interest considerations that render it desirable to
make the information withheld under section 9 of the Act available at this time.
This response, with your personal details removed, may be published on the Ministry
website at: justice.govt.nz/about/official-information-act-requests/. If you require any further
information, please contact Ministry of Justice Media and Social Media Manager, Joe Locke,
at [email address].
You have a right under section 28(3) of the Act to raise any concerns with the Of ice of the
Ombudsman. The Ombudsman may be contacted by email to:
[email address]
I trust you find this information useful.
Nāku iti noa, nā
Tracey Baguley
Legal Services Commissioner
Appendix: Documents attached
Date
Document
Document Title
Decision
Type
on release
19 October 2022
Minute
Criminal Process
Released
Improvement Programme
in part,
(CPIP) – Duty Lawyer Policy
with some
Working Group meeting
information
withheld
under
section
9(2)(ba)
11 November 2022 –
Justice topic notes Justice Topic Notes for the
Withheld in
24 February 2023
Minister of Justice
full under
section
9(2)(f)(iv).
11 November 2022
Letter
Feedback from the legal
Withheld in
associations about Duty
full under
Solicitor work
section
9(2)(ba)
19 October 2022
Spreadsheet
Spreadsheet collating the
Withheld in
feedback at the Working
full under
Group and from the legal
section
associations
9(2)(ba)
20 October 2022
Briefing
Changes to the Duty Lawyer
Released
Operational Policy Pilot
in full
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Points noted during this discussion:
s9(2)(ba)
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Legal Services Commissioner
Justice Centre I 19 Aitken Street I DX SX10125 I Wellington
T 04 918 8800 I F 04 918 8820
[email address]
1982
Changes to the Duty Lawyer Operational Policy Pilot
ACT
Hon Kiri Al an, Minister of Justice
20 October 2022
Purpose
1.
The purpose of this paper is to provide information on the changes to the Duty Lawyer
Operational Policy being piloted as part of the Criminal Process Improvement
Programme (CPIP).
Background
2.
As a result of the increasing complexity of criminal cases, the Criminal Process
Steering Committee was established in late 2020 by Chief District Court Judge
Taumaunu and the Ministry as a Justice Sector initiative, to determine a sector
INFORMATION
response. As a result, CPIP was formed to develop more efficient ways for the criminal
jurisdiction of the District Court system to operate.
3.
The objective of CPIP is to reduce pressure on the criminal jurisdiction of the District
Court through better utilisation of court time and resources so that cases can be
resolved earlier and with fewer court hearings.
Duty Lawyer Operational Policy
OFFICIAL
4.
CPIP is made up of nine workstreams with each workstream focusing on a different
stage of the criminal process. The Duty Lawyer Operational Policy only forms part of
the changes developed within Workstream 1 (Bail Applications) and Workstream 2
(Duty Lawyer Scope and Admin).
THE
Current state (in all courts not operating under the CPIP pilot)
5.
Under the current Duty Lawyer Operational Policy, for matters that qualify for legal aid,
the duty lawyer wil usual y help the defendant to prepare an application for legal aid,
request a remand for legal aid to be granted and a lawyer assigned.
6.
A lawyer is assigned, usually within 24 hours, however contact between the defendant
and their lawyer often occurs for the first time at the defendant’s second appearance
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which is between two to three weeks after first appearance. At that appearance, the
lawyer may seek a further adjournment, a further two or three weeks, so that full
instructions can be given.
7.
If the defendant is in custody at their first appearance, the legal aid application wil be
submitted more promptly to arrange for a legal aid lawyer to be assigned urgently. An
application for bail may then be made on the same day. However, once they arrive at
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court the assigned lawyer may not have sufficient time to undertake al necessary 1982
enquiries and may seek a remand in custody to prepare a bail application.
8.
Increasingly high adjournment rates contribute significantly to the current delays and
backlog in New Zealand’s biggest court, the District Court. Under the current system,
a plea is not usually made for moderate to serious offending until after a defendant has
ACT
appeared in court four times.
Outline of CPIP duty lawyer pilot policy
9.
The aim of this pilot policy was to provide flexibility for duty lawyers to do more to assist
defendants at their first court appearance and removes barriers to advance more bail
applications where appropriate. These changes were implemented as a pilot in
December 2021, at the Hamilton District Court and were further extended to the Hutt
Valley and Christchurch District Courts.
10.
The payments related to this pilot were not intended as an incentive to fast-track cases.
The pilot included a higher hourly rate and a reimbursement for their additional
workload and responsibility involved with progressing or resolving a defendant’s case.
The extra work could involve obtaining and reviewing more information from the Police,
INFORMATION
Corrections, and a court victim advisor, as well as interviewing the defendant, in order
to appropriately advise and represent the defendant.
11.
This pilot was part of a wider set of initiatives to improve processes. Better information
sharing between agencies and the court would mean the duty lawyer can provide firmer
advice earlier and the Judge would be better placed to reach a decision without delay
and the need to adjourn. Equally defendants given more detail earlier in the process
about the case police are alleging may also be better placed to make a well-informed
decision about entering a plea, or alternatively to seek more time to consider it.
OFFICIAL
Key benefits from the changes in the Duty Lawyer Operational Policy
Benefits to victims
12.
This policy pilot may have resulted in fewer court appearances. The longer the disposal
THE
time of cases, the longer the stress of the crime continues for all parties, the victim,
any witnesses, and the defendant and their whānau.
13.
Greater emphasis on richer information provided at the earliest opportunity wil mean
Police are putting further efforts in ensuring victim views on bail are available by the
first appearance.
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Benefits to defendants
14.
Defendants could spend less time in the court system and can finalise cases with same
day sentencing where appropriate.
15.
Participants are provided with timely information to make informed decisions.
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16.
Al owing continuity of lawyer from a first appearance bail application, can increase the 1982
engagement between defendant and counsel thereby reducing the number of
unnecessary events from first appearance to plea.
17.
If the matter was progressed by the duty lawyer service then the defendant incurs no
debt, and the overall reduction in court events to case disposal also leads to an overall
ACT
reduction in legal aid debt for the defendants.
Safeguards – Quality Assurance
18.
The pilot Duty Lawyer Operational Policy included additional guidance for duty lawyers
when determining whether it would be appropriate to progress applicable proceedings,
or whether a legal aid application is required.
19.
The Public Defence Service duty lawyer supervisor is in place to provide direction to
duty lawyers. Their responsibilities include:
19.1. ensuring that any complex matters are allocated to a duty lawyer with
appropriate experience
19.2. ensuring that coverage by the duty lawyers attending on the day is appropriate
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in terms of their skil and experience
19.3. monitoring the performance of duty lawyers and responding to poor
performance.
Legal Services Commissioner
20.
In light of concerns raised by yourself as well as members of the profession, I have
made the following decisions: OFFICIAL
20.1. The additional payments for these specific activities in the duty lawyer pilot
policy are suspended from the 18 h of October 2022.
20.2. A review wil be undertaken to develop options for addressing the concerns
THE
while still delivering improvements in access to justice. The review wil be
assisted by a working group of senior members of the legal profession, Ministry
officials and representatives of the Public Defence Service.
20.3. The first meeting of the working group was held 19 October 2022 and analysis
of the resulting potential changes to the pilot policy is underway.
20.4. I wil discuss the findings of the review with you and keep you updated as the
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work progresses.
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