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NZLS hopes Kerr decision will result in PDLA improvements

02 July 2020

The New Zealand Law Society | Te Kāhui Ture o Aotearoa welcomes the recent Court of Appeal decision in Kerr v New Zealand Police and hopes the decision prompts long overdue improvements to the Police Detention Legal Assistance (PDLA) scheme.

The Law Society intervened in the Court of Appeal case, which considered whether the right to consult and instruct counsel on arrest implied an obligation on the State to facilitate the availability of legal advice.

“Mr Kerr appealed the High Court’s refusal to set aside his conviction for refusing to give a blood sample, on the basis that his right to consult and instruct a lawyer had not been complied with”, Elizabeth Bulger, NZLS Legal Services Committee convenor, said.

Mr Kerr had been detained by the police on a Friday night for drink driving and was later required to provide a blood sample. Mr Kerr asked to speak to a lawyer, but neither his own lawyer nor 12 other lawyers on the PDLA list at the time, were available. Mr Kerr subsequently refused to give a blood sample and was convicted of that offence in the District Court. Mr Kerr’s appeal to the High Court was dismissed.

The Court of Appeal granted leave to the Ministry of Justice, New Zealand Law Society and New Zealand Bar Association to intervene.

“The Law Society has been actively engaging with the Ministry of Justice over the years to ensure the PDLA scheme remains effective. It is vital that those who have been arrested or detained have access to and receive legal advice as guaranteed to them by the New Zealand Bill of Rights Act”, Ms Bulger says.

Appearing on behalf of the Law Society, Rachel Reed QC and Honor Ford submitted that the Bill of Rights Act right to consult and instruct a lawyer implies an obligation on the State to facilitate the availability of legal advisers and that it was not unreasonable for a toll-free phone number to be provided for people requiring access to a lawyer while in detention, and to ensure that number was staffed on a 24-hour basis.

In quashing Mr Kerr’s conviction, the Court held at [68]:

“It remains incumbent on the executive to afford a detained motorist the facility to exercise the s 23(1)(b) right “in a real and practicable way”. If the executive does that through the PDLA, then it must ensure that the scheme fulfils its purpose of providing contact details of lawyers capable of and willing to provide legal advice to detained persons”. [emphasis added]

The Kerr case prompted a change to the Christchurch police’s list of lawyers, with a roster system set up in 2019. Following the Court of Appeal decision, the Law Society considers that a nationwide review of the PDLA scheme – as signalled by the Ministry of Justice in 2018 – is needed and should be a priority.

“It is helpful that the Court of Appeal has provided clarity about the government’s obligation to ensure the PDLA scheme fulfils its purpose. The Law Society is committed to working with the Ministry of Justice to look at ways the scheme can be improved, to ensure the right to counsel is facilitated”, Ms Bulger says.

Last updated on the 2nd July 2020