There is an appetite in the justice sector for conversations about how we can improve our court system, if feedback from recent articles in LawTalk is anything to go by.
And I’m grateful for the good and constructive feedback I’ve received from LawTalk readers.
This column is focused on the use of data and analytics, in my capacity as the Secretary for Justice.
For those who work in the court system, we all have own perceptions about how things are working based on our experiences and interactions. But often that is limited to the parts of the system where we conduct our business, which means perceptions are often not based on exposure to the system as whole.
We shouldn’t be relying on anecdotes and assumptions that can easily be influenced by prejudices.
If we’re going to make improvements to a system, especially one as complex as the court system, we need a view of the system that is based on evidence. When looking at a system’s performance, we need data or we are operating in the dark.
We all have an interest in understanding how the court system works, and particularly the extent to which it is working well or not.
I am a firm believer that to assess the effectiveness, and even fairness, of our court system, we need good data and analytics. Data allows us to measure how well the system is delivering for the people who use it, and provide us evidence to base decisions on.
It is often said that information is power, but the information is not an end in itself. Information is powerful when people make sound decisions based on the insights it generates. That is where high quality analysis plays its part.
Data is not a substitute for leadership, nor is it a substitute for making hard decisions. Data doesn’t create options. Analysis of data can help us to better understand what our options are.
Data can illuminate the effectiveness of those options and give leaders better information on which to base decisions.
As we have canvassed previously, the premise that the court system should be centred on the people who use our services remains fundamental. To get a better system for them, we need to be focused on their needs.
To illustrate my point, one of the indicators we have been tracking is the timeliness measure around category 3 and 4 criminal cases, the most serious cases which attract prison sentences of two years or more.
These are the most complex criminal cases, and their progress through the courts to a conclusion has a major impact on the lives of the accused, victims, witnesses and families.
Previously, we set ourselves a target of resolving 90% all serious harm cases within 12 months.
I am aware of the arguments that how long it takes to resolve a case should not be a priority over fairness and ensuring the outcome is right. I don’t believe these goals or aspirations are mutually exclusive. Complex cases naturally take longer and I don’t think for a minute that anyone would suggest we are trying to rush cases through or erode fairness and getting the right outcome.
But if we are prioritising the wellbeing of the people involved, then helping ensure they get through the system in a timely manner must be part of our thinking and we should measure it for the reasons given above, for “justice delayed is justice denied”.
Unfortunately, timeliness for serious harm cases has been slowly heading in the wrong direction, from around 92% resolved within 12 months two years ago, to around 88% now.
That means in the past two years, more than 1,100 more serious harm cases have taken longer than a year to be resolved, and all that that entails. It is a lot of affected people.
We now have data that is showing us where we need to look at an emerging pressure point in the system which, it could be argued, is detrimental to the wellbeing of people in the system.
There are two main reasons for this. One is that more serious harm cases are entering courts. Secondly, these cases are requiring more court events to resolve.
We have seen an increased number of category 3 cases filed. On average, in 2015, 3,514 cases were filed per month; in 2017 that had increased to 3,816 (a 9% increase).
This means there are now more than three and half thousand more serious cases are entering our criminal courts this year compared to 2015.
To the second point, these cases are also progressing further through the court system before being resolved. As these cases progress further through the system, more court events are required which is requiring more resource and taking more time.
To emphasise this point, the average number of events required to resolve serious criminal cases has increased from around six court events in January 2015 to over 7.5 courts events in January 2018. These events can include everything from hearings dealing with bail, name suppression and resolving evidential issues as well as the trial and, if the person is found guilty, sentencing.
There is a direct relationship between the total time it takes to resolve serious cases and the number of court events required. On average, the increase in court events has led to an increase in time to resolve serious cases by one day per month for the last three years, from 146 days in January 2015 to 181 days in January 2018.
Whilst these factors have been increasing, the average time between court events has not.
This has remained constant throughout, of between 23 and 24 days between each event. This is the factor that courts staff and administration can influence.
To address the increasing time it takes to resolve serious criminal cases, all parties need to get behind the timeliness goal and work together to improve the experience of the most vulnerable New Zealanders in the court system.
For other criminal category types in the District Court, timeliness performance has improved markedly.
The average active age of category 1 cases (criminal cases that can’t be sentenced to prison) has dropped by almost half since 2012/2013 while the average active age for category 2 cases (criminal cases that can be sentenced to prison under two years) has fallen by 7% over the same period.
Also, the timeliness for the tribunals we support has improved significantly with average active age now 30% less than it was back in mid-2013.
Despite achieving these great results, we are now seeing these timeliness gains start to erode as the courts are having to deal with the increase in serious harm cases, and the increase in the number of events required to dispose of these cases.
Why is this important?
- “Justice delayed is justice denied”;
- The impact on people of these cases;
- Need to help people reach closure and get on with their lives.
It’s not that timeliness is an end in itself. It’s that timeliness is one of the best ways we can check that the system is humane.