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Administrative impositions on the judicial process

31 August 2018 - By John Burn

As a retired barrister I see an increasing risk to our courts system in the way the Ministry of Justice is imposing its own changes and standards on the delivery of justice.

The historic approach in this and other Westminster-based countries left judicial decisions squarely in the hands of our judges. But now one can observe certain examples of what could be called legislative over-reach with the consequence of these decisions being no longer untrammelled and not necessarily the outcome which the sitting judge would have desired.

In another legal journal I have criticised section 9(2) of the Sentencing Act 2002, which entitles the court to take into account a plea of guilty and when it was made.The effect is that a plea made at the onset of proceedings may be treated as an ameliorating factor and thus to reduce the sentence. But if it is not made until the case is ready to start, then it may be treated as a reason to increase the sentence – by limiting the concession otherwise to be allowed.

But the only effect of a late plea which the authors of the Sentencing Act dislike is the need to cancel a trial so that jurors and witnesses may have to be sent away. Of course, this may annoy the careful administrator in the ministry, but it should surely have no effect on the fixing of the sentence. A crime has been admitted, and the judge should have the right to fix the appropriate penalty. I know that the courts have sought to say that a late plea shows less remorse, but this stance ignores many other reasons which may have caused the plea to be late – changing legal advice, change of lawyer, slow realisation of guilt – none of these should affect the fair and proper sentence. But the truth is that the ministry has taken over.

I have also come across section 26 of the Criminal Procedure Act 2011, which now obliges any person who wishes to bring a private prosecution to lodge a charging document. Under this recent provision the registrar may accept the document, or refer it to a District Court judge for a direction that the person file all statements, exhibits and other evidence on which he intends to rely.

The judge will then decide whether the documents lodged are sufficient to justify a trial, or if the proposed prosecution is an abuse of process. In the case of Spratt v Savea Judge SJ O’Driscoll, CRI-2014-009-0014923, 29 April 2014 an ex-policeman was arrested in a hotel for disorderly behavior. He was held overnight but the charge subsequently withdrawn; a charge of failing to supply details under the Sale of Liquor Act substituted but then withdrawn. He denied the charge and complained of excessive force and wished to sue for damages, but the court – in a decision on which I prefer not to comment – decided that there was not enough evidence and dismissed his claim.

This, of course, occurred without the applicant being heard, or calling witnesses, or the defendant giving any evidence at all. My point is obviously that the administrators have intervened in the age-old right of every citizen to bring an action for private prosecution. For an effective step is now inserted to limit the time and cost of a court hearing.

It is well known also these days how the probation services have now been instructed not to seek imprisonment if possible – this simply on grounds of economy, and not in any way on the basis of the degree of seriousness of the offence. Inevitably, this flows on to the court and again restricts the range of penalty which the judges previously had at their disposal.

There is also the rather odd fitting of a continuous recording system in every court – separate from the recording of evidence – for the information of the administrators in the ministry. No clear justification for this has been advanced, but I see it as another imposition on what was the age-old independence of the judiciary.

I wonder if we really appreciate what limits on the legal right of the citizen are being slowly advanced, and I cannot see that the ministry is aware of any shortcomings in this respect at all.


John Burn johnfburn35@gmail.com is a former barrister living in Christchurch. He worked as a lawyer and then barrister sole in Christchurch from 1964 to 1980, then as a litigation partner with a Sydney firm for two years before returning to practise as a barrister in Christchurch from 1984 to 1990. From 1991 to 2013 he was a member of the New South Wales bar in Sydney.

Last updated on the 31st August 2018