The New Zealand Law Society supports the use of Audio Visual Services (AVS) in appropriate cases in principle, but says an independent evaluation of a recent Auckland pilot is needed to ensure defendant’s rights are not breached.
The Law Society’s Criminal Law Committee has been involved in the Auckland Custody Unit /Audio-Visual Services pilot, along with taking part in a Remote Participation Workshop.
AVS provides the ability for a defendant to appear in court remotely from where the person is being held in custody.
However, the Law Society says that first appearances in court give rise to particular concerns. When a person is arrested for an offence and not released, traditionally their first appearance in court is conducted in person, as required under section 23(3) of the New Zealand Bill of Rights Act 1990. The right to be brought before a court as soon as possible after arrest recognises the constitutional separation of the judicial and executive branches of government and reaffirms the critical role that the courts play in ensuring the legitimacy of an arrest and detention.
“Therefore a departure from this standard is significant and needs careful consideration before it is rolled out as a ‘business as usual’ model,” says Law Society Criminal Law Committee convenor, Steve Bonnar QC.
In the October 2017 edition of LawTalk, the Chief District Court Judge, Jan-Marie Doogue acknowledged that technology could assist the courtroom but also issued a warning “for all those working in criminal justice, it is important to resist any head-long rush toward new technology simply on the basis that it allows us to go faster and at less cost, when so much else is at stake.”
She said “the influence of technology needs to be moderated, in order to preserve and protect existing standards of criminal justice, including the rights of defendants and victims.”
The Law Society has reviewed a Ministry of Justice and Police evaluation report of the Auckland Custody Unit Pilot, alongside reports from both the Public Defence Service and Duty Lawyer Service, including feedback from duty lawyers who have worked under this pilot.
The Ministry recognises further refinement of the Pilot is necessary before continuing it as a ‘business as usual’ operation, but the Law Society is urging caution for a number of reasons.
“While the ACU Pilot has been successful in assisting some defendants to appear remotely rather than being brought to the courtroom, we think there’s still a need for an independent evaluation before it becomes the norm. Broader access to justice concerns need to be addressed. The PDS and Duty Lawyer reports raise significant practical concerns. The Duty Lawyer Service report indicated that duty lawyers found the pilot created significant additional work and stress. Some have even indicated they may not be prepared to continue doing this work if the ACU pilot becomes the norm. Given they’re an integral part of the process, their concerns need to be heard and considered,” says Steve Bonnar QC.
The Chief District Court Judge supports the Law Society’s request for an independent evaluation.
Other concerns in the reports include that AVS has created disengagement by defendants.
“While some defendants preferred having an AVS appearance in court, feedback also indicated that some defendants didn’t like the impersonal nature appearing remotely and felt they couldn’t speak to the duty lawyer to the same extent as if they were appearing in person.
Some defendants after an AVS appearance did not even appreciate that they had appeared in a public court setting,” Mr Bonnar says.
When making a decision on whether to roll out AVS for arrest appearances, the Law Society says cost savings and administrative efficiency must not override the need to ensure that proceedings are conducted fairly and that defendants’ rights to a fair trial, including to be heard, to consult and instruct counsel, and to overall access to justice, are protected.