Claiming the justice system for the people

Simon Power wants to reclaim the justice system for the people. He has made a start. He reckons it will take him another two to three years.

He will outline his next steps in a speech to the law profession and academics at Otago University this month (postponed from Wednesday because the funeral of Lieutenant Tim O’Donnell, a constituent, is that day). The law industry is unlikely to rush to congratulate him.

The government is known more for its law-and-order hard line. Corrections Minister Judith Collins last month celebrated the economic value of the new south Auckland prison: $1.2 billion over 30 years. Social and human defeat is trumpeted as economic victory. And just in time: the construction sector is in a parlous state.

Power has gone along but, as a liberal, he has a stronger interest in reform than repression. He wants courts to be more expeditious and more solicitous of victims and witnesses.

He has perturbed and angered practitioners whose reverence for tradition and precedence favours incremental change as a cornerstone. Critics — uncommonly articulate, given their trade — point to 40-year-old Power’s youth and mere five years in legal practice.

Actually, youth and legal training have emboldened him. Non-lawyer justice ministers can be bamboozled by the trade.

Power last year abolished the automatic right to a depositions hearing — in effect a trial-before-a-trial, in which the prosecution lays out evidence for a court to decide if there should be a trial. Now lawyers apply for depositions in only 3 per cent of cases. In the year to June 2010 the average time to committal to trial fell from 186 to 79 days for the high court and 100 days to 60 days for a district court jury trial. Justice is less delayed.

His focus is now on three areas.

One is more flexible processes, including an inquisitorial approach, to complement the greater flexibility courts have allowed in dealing with young offenders and in family cases. Power wants that flexibility applied to other “stakeholders”, such as victims and witnesses (often forced to relive nasty experiences by heavy-hitting defence lawyers) and jurors.

He favours Austria’s approach to crimes against children: collection of evidence close after the offence, tested by a judge with expert help and played unaltered at the trial, challengeable only within strict limits. He studied this and Germany’s inquisitorial system on a quick visit in June.

His other two current focuses are the rapidly lengthening times and rapidly rising legal aid costs of custody hearings and the length of time it takes for courts to issue judgments in civil cases. His proposals will upset lawyers.

There are several strands to Power’s approach.

One is a drive on costs. Power cleared his speech with Bill English. He and English want tighter criteria for access to legal aid and other support without undermining rights and needs, especially of vulnerable women and children — a tall order.

And, under an act passed last month, prisoners are to be video-linked into court for procedural and even substantive hearings, though they will be able to request to attend substantive hearings in person. One prison and 21 courtrooms have been fitted and a pilot starts in Auckland on August 23. Trucking prisoners to court, especially from maximum-security Paremoremo, is costly and time-consuming.

A sub-theme is that the twenty-first century began 10 years ago. The digital age has replaced the age of the tumbril. Judges, who are in law masters/mistresses of their courts, are not all lightning adopters of modern technology and procedure. They need help.

A second strand is the courts’ constitutional independence of Parliament and the Executive (the cabinet and state agencies).

Power has a ready rationalisation for his intrusion. “The justice system doesn’t belong to judges and lawyers, or politicians for that matter.” It belongs to the people. And “if it won’t reform from the inside to meet the expectations of the public, we will reform it from the outside.”

The “we” are politicians, not public service policy analysts whom English wants to cull. Power wrote the first draft of his speech on the plane back from Europe in June and only recently sent it to his ministry for perusal. It has, however, done the Beehive rounds of the Prime Minister and relevant ministers, including Attorney-General Chris Finlayson, a lawyer’s lawyer.

A third strand is attention to human need.

Often the “justice” system is just the legal system, leaving justice parked in arcane corners of legal minds and humanity parked outside the court. Long delays getting to court are unjust to the accused and unfair to victims and witnesses. The adversarial system can be intimidating and damaging.

Power is not just liberal. He is also a family man, with two young children. When he talks of the courts belonging to the people, children are very much part of his people. This is a young man talking. Venerable judges take note.