Four years ago I had the honour of taking up the role of Secretary for Justice. Since then I have criss-crossed New Zealand on many occasions and have had the privilege of meeting with and talking to hundreds of people involved in our courts.
There are three key themes that keep coming back to me as I reflect on our courts and the opportunities for the courts going forward.
The system
“System Thinking” will be familiar to some of you and for many, understandably, it will sound unbearably dry. But it is helpful, especially in the context of our courts. ”System thinking” essentially states that nothing exists in isolation and to truly understand how anything works (and more importantly how things can be improved) we need to understand what the interdependencies are between each part of the system. System thinking is relevant in the court system for three reasons:
1. The many participants in the court system
There are numerous participants in the court system. It is not one homogeneous group. All have different roles, skill sets, disciplines and drivers. Thinking about our interdependencies is crucial because our drivers and behaviours vary – and we need to understand how the consequences of those drivers and behaviours affect the effectiveness of the courts. Judges, Police prosecutors, counsel (civil, criminal and family), Crown Solicitors, victim advisors, court staff, security officers, probation officers – their attitude, behaviours and roles impact on the effectiveness of the operation of the courts.
2. Ownership
The court system is unusual in that there is no one absolute owner – no one leader. While Parliament ultimately determines the statutory law and the broad structural framework of the institution and the Rules determine the procedures of the courts, the way the court system actually operates and behaves, reflects the operation and behaviours of all the participants in the court system.
No one person is responsible for fixing all the problems of the system. We only own our individual parts and, even then, we can be reluctant to admit culpability and can be quick to blame others.
For instance, the fact that the system can often be slow is a fact that no single person or entity is responsible for. Because we focus on our independence, we are reluctant to hold each other to account. We need to hold each other to account because the actions of one of us in the system reflects on the whole system – on all of us in the system. But more importantly, by not looking across the system and holding each other to account we miss the opportunity to collectively analyse the foibles of the system – those things getting in the way, slowing it down – and therefore we miss opportunities to improve it.
There are of course very good examples of parties working together. But we could do much more. We need to feel collectively accountable for the system, because in the absence of one owner, one leader – we are all owners and we are leaders, all accountable to the public of New Zealand who enter the court system.
3. Independence
At a principled level, independence is a vital theme of the court system. Most notably found in the phrase “judicial independence”, it actually proliferates throughout the whole system. Each participant owes a duty to operate without undue influence of the others. All lawyers have an overriding duty to the court in the first instance, but also owe a series of duties to their clients. Registrars undertake their duties independent of the Executive, or for that matter, lawyers. The Crown Solicitors exercise their prosecutorial decisions independent of the Executive or public opinion. This flows on to all others in the system, be they probation officers, victim advisors, even court security staff. The Executive, through the Ministry, is independent also in its decision-making around resources, because it is solely accountable to Ministers and to Parliament for the way it spends money.
But despite our independence, we are utterly dependant on each other to make the system work and to succeed in our own roles. No one can operate effectively without the other operating effectively. Judges are dependent on court staff, court staff are dependent on lawyers, lawyers are dependent on their clients, and clients are dependent on all of us. Ultimately, interdependencies affect all of us.
The public judges the court system as a whole. How well it works is a reflection on all of us in the system. How well it doesn’t work is a reflection on all of us. That’s why working together is as important as being independent. In fact, the robustness of our independence depends on how well we work together.
Purpose
Purpose is important, because it helps distil what is essential and what is not. It brings us back to why we are here.
Because courts are a system that is steeped in history, hierarchy, rules, procedures and role definitions, it is very easy to think inwardly and see the system as an end in itself – but it is not.
The court system is here to provide a mechanism for the public to enable cases to be resolved and disputes to be settled according to law.
Seen in this light, the court system is here for the people of New Zealand and, in particular, the people caught up in the system – be they applicants or respondents, defendants or plaintiffs, victims or witnesses.
Without them we are not needed. They are our reason for being.
If we think it is about them and not about us, we must continually think about what their needs are and whether the court system meets those needs.
The reality is that for many of the people that come into the court system, they find it foreign, antiquated, inaccessible and expensive.
There is nothing inherently sacrosanct about the courts and the process. What is sacrosanct, is that people are held accountable for breaking the law and people have a forum to have their disputes resolved, a forum that is impartial, that they trust and that provides for a fair hearing. The method by which this is delivered will change, because society changes. We now see reform in many ways – Matariki Courts; Rangatahi Courts; Iwi Justice Panels; restorative justice; the Drug and Alcohol Courts; greater use of the less formal processes such as the Disputes Tribunal; arbitration and mediation.
All of these initiatives look at how we can provide a process more focused on the people that we are here for. They don’t alter the principles of justice, but they recognise that any one system or any part of a system is a method to deliver on a principle, and while the principle is not negotiable, the method is.
Ensuring the system is people focused is critically important, because if the system is not seen by the public as accessible, understandable, fair and efficient, then two things happen.
Firstly, people decide to settle their disputes in other forums or not at all. The recent debate about arbitration versus High Courts as a way of resolving commercial disputes is a good example of that. Whether we like it or not, the court system operates in a market, and if people think the system is out of touch, takes too long or is not user friendly, they will find other ways to have their disputes resolved.
Secondly, the court system risks losing its legitimacy as a public institution if people start to question its relevance. Although no single person is responsible for the system, the collective whole of the system requires the support of the public to maintain its legitimacy. That requires us to continually be relevant. Without public support, we cease to be legitimate.
Timeliness
Timeliness is an essential part of the court system – justice delayed is justice denied.
Delays are unfortunately a big part of the courts’ story – not just in New Zealand, but in most countries. Some of this story is clearly unfair – for instance 97% of criminal District Court cases in New Zealand are dealt with within 12 months and category 1 and 2 cases are dealt within an average of 2 months.
But there are many instances where the system is unfair to those that experience it. 4,000 District Court Criminal cases per annum are not dealt with within 1 year and the average participant in a jury trial will need to wait 14.5 months for the trial to conclude. That is on average – for 5% of serious harm jury trial cases, it is taking in excess of 29 months to conclude.
Within the court system, it is easy to get acclimatised to such periods of time. Issues of trials are complicated – there are many different parts – there are cases to develop, evidence to collect, arguments to perfect, people to get together.
But the real question is should people be in the court system for the period of time that they are? Is it right that only 46% of jury trials are dealt with within 12 months, with 20% taking up to 18 months? No it isn’t. People should not have their lives put on hold for those timeframes. I have not spoken to anyone – lawyers, judges or registrars who think these timeframes are right – that they are good – that they are what they should be. In a system where everyone talks about work volumes, complexity and available time, making every event meaningful, removing “churn” and, most importantly, helping our people move through the justice pipeline towards resolution must be our ultimate and shared aim.
What do we do about it?
This is a collective problem. It is easy for us to point the finger – registry staff don’t have the paper on file; pre-sentence reports are not ready; judges are adjourning cases unnecessarily; lawyers are gaming the system; prosecutors are overcharging – you’ve heard it all before, we all have. But the solution is not in the finger-pointing – it is in the realisation that we all contribute to delays; it is in the realisation that some of our contribution to delay can be fixed within our own sphere and some require us working with each other, across the system.
This is not to detract from the substantial work that has been and is being done around timeliness. For instance; the Criminal Procedure Act; rostering and scheduling initiatives and Audio Visual Links between courts and prisons.
We need a shared view of the system and we need an intention to make a difference – a view that the current timeframe for many people in the system is too long and an intention that collectively we will do something about it.
Conclusion
The court system is a very technically based system – the devil is in the detail. But we need to take a step back and look at the whole to see where all the detail takes us so that we can determine whether we are going in the right direction and whether we can improve the direction we are going in.
In summary, these reflections propose three points:
- That we are all ultimately accountable for the court system – it has no single leader, we are all leaders. We need to think about how we work together to improve the system, because improvements will come not from our focus on our independence, but from our focus on interdependence.
- The purpose of the court system is to resolve cases or disputes fairly, according to law, for the public. The public is our reason for being. This means two things – we need to deliver courts in a way that meets their needs, and we need to understand that the court system’s continued legitimacy depends on the public’s continued acceptance and support of it – we cannot demand their support.
- Timeliness is our Achilles’ heel – many people are in the system for too long – it is not right, just or acceptable and collectively we need to do something about it.
These are some personal reflections of the court system. I have set out three themes that are important, but what is more important is that we as a group of people involved in this most important institution are quite premeditated about where we think this institution needs to go in the future and where we need to focus.
I have made some suggestions here, but will be very interested in your views and in promoting a wider discussion. Whatever resonates with you, or for that matter what does not resonate, I would like to hear from you so please feel free to drop me an email (andrew.bridgman@justice.govt.nz).
Thank you for taking the time to read the article and thank you for your contribution to the court system.
Andrew Bridgman is the Secretary for Justice.