New Zealand Law Society - Developments in access to justice

Developments in access to justice

Little shared understanding of pro bono legal services

A new University of Otago Legal Issues Centre (UOLIC) report says research suggests there is little shared understanding by the legal profession of what constitutes pro bono legal services.

The report, New Zealand Lawyers, Pro Bono and Access to Justice, was co-authored by Kayla Stewart, Bridgette Toy-Cronin and Louisa Choe from the Legal Issues Centre.

It recommends ten steps to help New Zealand’s law profession deliver more free services to people caught in New Zealand’s widening ‘justice gap’.

The UOLIC surveyed and interviewed lawyers about their attitudes, and actions, towards providing free or low-cost legal help. This was part of a wider project about free and low-cost services offered by lawyers.

Minority of lawyers carry the burden

“Our research confirms that a minority of lawyers carry the burden of helping those who would otherwise face legal problems without legal help, yet encouragingly the vast majority of lawyers we surveyed saw pro bono as an important part of being a lawyer. In fact, almost half wanted to do more, if only we could improve the systems and support. We are proposing clear steps to increase free and low-cost services for those who need them most,” says Dr Bridgette Toy-Cronin.

She says the research aimed to address an urgent need to improve how pro bono services work and reduce a “justice gap” that has emerged as growing numbers of people cannot afford a lawyer, or access legal aid.

“This makes accessing free or low-cost legal help most important, and there have been calls for more lawyers to step into the breach, including a recent suggestion from the New Zealand Law Society President that lawyers should aspire to deliver 35 hours of pro bono services per year (the same target set for Australian lawyers). However, finding solutions and taking action has been hampered by a lack of clarity about what is happening on the ground,” she says.

The study team surveyed 360 lawyers about how they defined pro bono, how often they did free work, the type of clients they assisted, and whether they regarded providing free legal services as a professional obligation. They then interviewed 23 lawyers to understand their attitudes about current practice and potential solutions.

Major research findings

Major findings include:

  • There is a need to better define and target pro bono services towards the areas of greatest need. While 86.4% of the participants reported delivering at least one type of free service in the preceding year, much of this service was not given to people who had legal problems and whose incomes placed them in the justice gap (defined as ‘access pro bono’). Rather, it included other free services such as assisting charities, conducting law reform work, sitting on boards, or sponsoring activities.
  • The access pro bono load is distributed unevenly across the profession and most lawyers would fall short of an aspirational target of 35 hours per year. The majority (58.6%) of participants reported completing less than 35 hours of access pro bono in the preceding year, including over a quarter who completed no pro bono access hours at all; 41% completed more than 35 hours in the preceding year.
  • Access to pro bono resources is inequitable. Some people are guided to pro bono services via community law centres and other advice services, based on their needs. However, a large amount of pro bono is offered via personal connections that rely on an individual’s social connections. This privileges access for those with existing connections to lawyers.
  • To help spread the load and increase pro bono services, there is a need to improve systems and develop ‘carrots’ instead of ‘sticks,’ in the profession and in the workplace. For example, while 53.1% of participants agreed their workplace supported them to provide pro bono services, only one in five participants agreed that their workplace recognised and/or rewarded those providing free services. The study also found that while lawyers believe pro bono is vital and want to do more, they are against the idea of any form of compulsion to provide it.

Recommendations

The study makes ten recommendations aimed at helping the profession to improve the availability of free and low-cost legal services. These focus on three key themes:

  1. that the profession develops a shared definition of pro bono, focused on pro bono that enhances access to justice, and that this definition be the basis for all programmes, targets and incentives for carrying out pro bono;
  2. that a national clearinghouse for pro bono be introduced to minimise the administrative burden on lawyers providing pro bono and to more equitably distribute pro bono services among the public. Clearinghouses match clients with pro bono lawyers and are guided by agreed priorities that aim to direct help to where it is most needed;
  3. that the legal profession associations encourage an increase in the amount of pro bono service via a number of mechanisms including regulatory reforms to reduce administrative burdens and allow for the greater flexibility needed around pro bono services; and the introduction of an aspirational target.

The report also emphasises that increasing access to free services is just “one piece of the puzzle” of providing more equitable legal representation for all New Zealanders, and that it will work best together with improvements across New Zealand’s justice system.

“The justice gap is so large that it cannot be filled only by asking lawyers to provide more free services. We must look for a range of solutions, including innovating legal services to make them more affordable and better funding and administration of legal aid,” Dr Toy-Cronin says.

Criminal Procedure (Mentally Impaired Persons) Court begins

The Auckland District Court has started holding dedicated hearings for defendants whose sanity or fitness to enter a plea may need to be determined.

A Criminal Procedure (Mentally Impaired Persons) Court started on 18 March and will be led where possible by the same District Court Judges to ensure continuity. Chief District Court Judge Heemi Taumaunu blessed the court’s opening session.

While it is on hold during the COVID-19 crisis, the plan is that the court will sit fortnightly and involve defendants from North Shore, Waitakere and Auckland courts who may have a fitness issue and those who are likely to plead not guilty on the basis of agreed insanity.

Chief Judge Taumaunu says the hearings are in effect an aggregated list of these types of cases, brought together through a streamlined process.

“It is not a specialist court but a dedicated list of cases that have been referred after preliminary assessment. The streamlined approach should reduce the time the CP (MIP) process takes, reduce the number of adjournments and avoid people being subject to Section 38 (psychiatric reports) unnecessarily,” Chief Judge Taumaunu says.

“Unnecessary delay is an impediment to accessing justice, and the new approach promises to reduce that delay for some of the most vulnerable people who come before the District Court.”

Streamlined process

Under the streamlined process developed by Judge Pippa Sinclair and Judge Claire Ryan, when fitness is raised in court – usually at first appearance – a forensic nurse will make an assessment. If fitness is found to be a potential issue the defendant will be remanded to the CP (MIP) Court in Auckland for a more in-depth assessment by a forensic nurse in liaison with a forensic psychiatrist.

This will provide the presiding judge more information to decide whether to trigger the full process under the Criminal Procedure Mentally Impaired Persons Act 2003. If the process is triggered, the defendant will remain in the CP (MIP) Court and if not, they will return to their original court to be dealt with under the Criminal procedure Act in the usual way.

At present these defendants tend to appear in the middle of busy list court sessions where it is difficult for judges to adequately address the complexity of their situation in a brief single hearing, resulting in cases being adjourned.

The pre-Level 4 plan was for the CP (MIP) court to have a transitional phase and is expected to take two months from its start date to be operating fully.

Cross-examination strategies in rape trials

Cross-examination strategies in rape trials remain resistant to reforms, which continues to negatively impact on complainants despite initiatives to improve the legal process.

This is a key theme of research by Professor Elisabeth McDonald of Canterbury University’s School of Law. Her research report, Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot, has been published as an Open Access book through Canterbury University Press to make her research freely available to those working in this area of the law (accessible at www.canterbury.ac.nz/engage/cup/new)

The 586-page report contains findings from four years of research. It compares the trial process in 30 adult rape cases from 2010 to 2015 (in which the defence at trial was consent) with 10 cases from the Sexual Violence Court Pilot heard in 2018 (the pilot was established to reduce trial delays and improve the courtroom experience for complainants, particularly children).

Professor McDonald was able to access audio records of rape trials. These contained additional material not included in transcripts, such as instances when a complainant was too distressed to continue giving evidence. This has helped shed light on how and why rape trials still often re-traumatise complainants.

Research aims

The aim of the research was to find out at which points in the questioning process the complainant displayed heightened emotionality, including distress, and why cross-examination (in particular) is so resistant to reform measures. The researchers also considered the extent to which the current rules of evidence and procedure are applied appropriately and consistently, and identified examples of best practice in order to develop proposals for changes to law and process.

Professor McDonald says that from the beginning of the research she “was determined that it would not just amount to yet another demonstration of how the criminal justice system does not do right by rape victims. Rather, it might demonstrate how the adversarial trial process could be different, could provide fair trial process for both complainants and defendants, and not continue to be one of the reasons for the extraordinarily high attrition rates.”

Factors contributing to complainant distress

Professor McDonald says the overall conclusion about the trial process in adult rape cases is that it is not only the nature and content of cross-examination that, at times, unnecessarily contributes to complainant distress.

“This research demonstrates that it is also the marked absence of judicial control over the questioning process and the lack of consistent application of the rules of evidence and procedure that indicate further political attention to the prosecution of sexual cases is warranted.

“In other words, while the primary focus of this research was on reform-resistant cross-examination, and its ongoing impact on the negative experiences reported by complainants, our analysis of all of the complainants’ evidence as well as the closings and the summings-up, exposes that the trial process as a whole is resistant to legal and procedural change. Unfortunately, this conclusion replicates and reinforces the outcomes of many other inquiries into the prosecution of rape. These inquiries conclude that it is societal beliefs that must be changed, in order to see consequential change to the decision-making processes in rape trials.”

Recommendations

The report contains 55 recommendations for changes to law and practice. These cover all aspects of the process, from the investigative process, to initial and pre-trial meetings with complainants, the actual trial process, the content and structure of closing arguments, summing-up and jury directions, evidential and procedural law reform, education and development programme content, and substantive law reform around sections 128 and 128A of the Crimes Act 1961.

New survey results show extent of offences by family members

Almost 80,000 adults were offended against by a family member in 2018, according to a Ministry of Justice report, Offences by Family Members.

The report, which comes off the back of the 2018 New Zealand Crime and Victims Survey, also notes that just over 100,000 adults who had a partner in the last 12 months had experienced psychological violence by an intimate partner.

Figures from the report show:

Māori adults (4%) were found to be more at-risk of experiencing family member violence than European adults (2%).

Adult females (2.8%) were more than twice as likely to report offences by family members than adult males (1.2%).

Young people between 15 – 29 years of age were 1.7 times as likely to report offences by family members (3.4%) than the New Zealand average.

Quite often victims are injured (23%) and require medical attention for mental, emotional or physical health issues (15%) but only one in three offences by family members are reported to Police.

The Offences by Family Members report details who experiences offences by family members, what types of offences occur, and what services victims interact with. The offences include physical assault, sexual assault, psychological violence by intimate partners, harassment and threatening behaviour, property damage and robbery.

National level information

“The report is important because it provides precise, national level information about violence committed within families,” says James Swindells, the ministry’s Manager of Research and Evaluation. “It tells us more about the nature of this type of offending and gives those leading interventions in this area the evidence they need to refine initiatives or develop new ones and to monitor the impact of this work.”

“Our findings show that victims of offences by family members experienced moderate-to-high levels of psychological distress, at more than four times the rate of other adults (37% compared to 8%). Data like this helps people understand the needs of those affected by violence and links with things like mental illness.”

The report also identifies that adults facing high levels of financial stress are more vulnerable to offending by family members. For example, adults who could not afford a non-essential item costing $300 in the next month were five times as likely to have experienced an offence by a family member in the past year than those who could afford the item.

“Future work – once more data is accumulated from further cycles of NZCVS – will help to gain a deeper understanding of the relationship between offending by family members, and the demographic, socioeconomic and family circumstances of an individual,” says Mr Swindells.

Young Adult List trial underway

The Porirua District Court has started trialing a Young Adult List which separates out those aged 18 to 25 from others appearing in court and provides extra support to help identify any health needs or impairments the young people may have.

The first Young Adult List was held on Friday, 6 March, and the sessions will be held at Porirua District Court every Friday.

Principal Youth Court Judge John Walker says the new approach recognises that a high percentage of young adult offenders suffer from neuro-disabilities such as dyslexia, acquired brain injury and foetal-alcohol spectrum disorder.

“Often they also come from a background of being exposed to trauma and abuse. Those challenges do not expire when they come into the adult court. We also know their brains are not fully developed. Currently we treat them as fully functioning adults when demonstrably they are not.”

Judge Walker says if the law is to deliver effective interventions to reduce reoffending, the underlying issues for young adult offenders need to be identified and taken into account.

Judge Walker has developed the initiative with support from the Ministry of Justice, Judges from the Porirua District Court, justice agencies, local iwi and others from the local Porirua community. The first session began with a mihi whakatau, karakia and waiata.

The Young Adult List sessions also feature greater explanation of court procedure to ensure the young adults better engage with the process and understand the proceedings.

Those appearing are able to access a range of wrap-around services similar to those available in the Youth Court, and services represented in the court include specialist forensic services, adolescent focused Corrections Officers, iwi liaison, Alcohol and Other Drug Clinician, Community Link, and Restorative Justice.

Criminal Cases Review Commission in business

The Criminal Cases Review Commission will come into existence as an independent Crown entity on 3 April 2020.

The Criminal Cases Review Commission Act Commencement Order 2020 brings some provisions of the legislation which established the Commission into force on that day. This includes section 7, establishing the Commission, section 8 which declares it to be a Crown Entity, section 49 which defines the legal status of Commission members and other provisions relating to Crown entities.

Unless there are further Orders in Council, the remainder of the Criminal Cases Review Commission Act 2019 will come into force on 1 July 2020.

On 24 February Justice Minister Andrew Little announced that the Commission will be chaired by Colin Carruthers QC and based in Hamilton.

Information disclosed on restorative justice

The Ministry of Justice funds 27 organisations to deliver restorative justice to 57 courts nationwide, Justice Minister Andrew Little says.

Mr Little provided the information in response to a series of written parliamentary questions on the management of restorative justice from National MP David Bennett.

Facilitator critera

Asked what the criteria were that an organisation must fulfil in order to facilitate restorative justice in cooperation with the Ministry of Justice, Mr Little said providers must provide evidence that they can:

  • Ensure their facilitators have completed, or are working towards, restorative justice accreditation through the Resolution Institute;
  • Comply with the Ministry of Justice Practice Framework, Restorative Justice Practice Standards for Family Violence and the Restorative Justice Standards for Sexual Offending Cases (if applicable);
  • Meet and maintain an appropriate level of Social Sector Accreditation;
  • Be culturally responsive to the needs of their communities; and
  • Maintain professional relationships with the courts they service and other key stakeholders in their communities.

He said there were no criteria set by the Ministry of Justice that organisations must fulfil to advertise themselves as a restorative justice provider. However, to advertise as a provider for the Ministry of Justice, they must have been selected and contracted by the ministry through a procurement process to deliver restorative justice services.

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