http://business.timesonline.co.uk/tol/business/law/article6329052.ece

What IS it that some people find so hypnotising about the number 3?

MNIJ – The number 3 was immortalised in the expression “Three more years”… a taunt that you socialists will be hearing quite often I should think.

Winston – Welcome to the circus. Interesting to hear your thoughts about judge vs jury trials. My limited experience of court-room activity was from serving on a jury where I became aghast as the lack of basic comprehension skills of the other jurors. Of the 12, only three of us, by my reckoning, could gasp the relatively simple case. Five of them repeatedly confused the claimant and defendant throughout our deliberations. That episode made me terrified of the remote prospect of ever being assesses by a jury of my peers… for peers they were not!

FES – Thanks for your comments above. Well considered and educational.

The difficulty with legal aid is that to earn a similar living to that of my civil/commercial colleagues I have to be overloaded with cases. That is not a good thing as it can lead to problems if I don’t manage to keep on top of it. It is not uncommon for me to have 3 or 4 appearances in a day, going up to a record (for me) of 8 separate appearances in 1 1/2 hours (not counting duty solicitor work) on one particular day last year. That was the day I looked at my diary and saw that I was completely booked for the next 6 months (on that note, I did a pre-trial appearance for a friend last year as he was out of town. His memorandum noted that he was unavailable until March this year as his diary was full. That was in August 2008!). I know that for some of my colleagues that is pretty normal, especially as they do family work whereas I refuse to practice in that area.

Ideally we would earn more money for the work we do and we can carry a lesser workload, which is better for all parties (client, practitioner and Court) but I don’t see that happening. Some of my colleagues are doing over 200 cases a year. That is 4 cases per week, which is amazing when they have a mixed practice.

I note that a number of my more ‘high flying’ colleagues are now refusing to do any summary legal aid work at all, and are picking and choosing their bigger cases as the see fit. Not really within the rules, but I would still love to be at that stage!

But we are running short of defence lawyers. Junior defence lawyers are becoming increasingly rare in my area and we just don’t have the firms willing to carry them through. One mate of mine did the sums on how much he could earn as a PC1 and applied to the Crown for a job! The Crown in our area now has more junior criminal lawyers than the defence bar!

As you will have found out, the advocacy skills you learn as a criminal brief hold up very well in civil court, so I think that is where I will be headed in the not too distant future.

The issue you identify regarding regeneration is well made. Leaving aside Mr Power’s comments for the moment the only way that you are going to atract new blood is increasing the LA rates. The NZLS achieved that last year to a lesser extent but not by enough. The static provider numbers was part of the submission to Justice if I remember correctly.

The cynic in me would say that economic conditions will force a number of practitioners to move into criminal work to help pay the bills, but they won’t have their hearts in it and will disappear back to more remunerative work once (or if) things improve.

You are right about civil litigation to a certain extent and it’s now a bigger chunk of my practice now but mostly its about leaky homes these days which is mind numbingly dull.

Legal Aid provider numbers are basically standing still, while the numbers in the profession are increasing. Whereas right now we have 8% of the profession doing at least one legal aid case a year, soon that will lessen but lawyer numbers will increase, so a net loss in percentage terms. What is really worrying is that only 10% (i.e. about 100) of criminal legal aid providers have less than 4 years experience, while 20% (or about 200) have between 4 and 9 years experience. I can tell you that in my area, the number of new providers coming onto the legal aid programme can generally be counted on one hand. Even worse, most of them don’t progress past PC1.

Civil Litigation is starting to look very tempting…

Also if three strike comes through where are all the counsel at PC4 level going to magically appear from to do the work?

Damn straight.

Although, because there will be more PC4 trials, including – for example – some summary jurisdiction indecent assaults heard by judge alone, it will be a hell of lot easier to qualify as PC4.

I don’t have a philosophical objection to the Three Strikes concept,

I do. Why should law be set based on the rules of baseball? Why not 4 points for a try, 6 balls in an over or 15 points in tennis as the basis for setting laws?

What IS it that some people find so hypnotising about the number 3?

No argument there- some of the stories my more senior colleagues tell me about some old time High Court judges are classic. Sadly, those appalling anecdotes are pretty much daily occurrences for some of our DCJ’s.

I am amazed at how much Auckland briefs charge (and receive) for their work. It is almost enough to make one move there, although I think the lifestyle where I live is probably better (subjectively speaking). PC4 rates, however are appalling when compared to private charge out rates. Even more so when the Crown receive more per hour for what is a much easier job.

Really? Scary! So if you’re a known bad egg then it is significantly harder for you to receive the same standard of justice as anyone else. Doesn’t that make a bit of a mockery of the thing about justice being blind?

I don’t have a philosophical objection to the Three Strikes concept, although I prefer the concept of giving the maximum penalty available without parole on the third strike, rather than life imprisonment. Was that DPF’s idea? I can’t remember.

Section 361B does allow the option of judge alone on indictable charges but it is relatively rarely used, at least in the area that I practice in. I don’t know if the stats are different in yours.

You will find a vastly superior standard of law practised in the High Court, both by judges and counsel.

It is still the Police who choose trial jurisdiction, probably 95+% of the time from my experience.

Yes. But choosing to charge a matter indictably does not mean it goes to a jury. Section 361B allows indictable judge-alone trials (as for that matter, do the following sections).

One might ask the government, why, if it thinks there are too many trials, it is seriously considering a three-strikes law. How will it like the legal aid bill when it realises that a number instances of lower-end serious crimes (indecent assault, assault with intent to rob) will be categorised as PC4 level trials for legal aid purposes (higher paying, and with more senior and again higher-paid – lawyers required) because of the prospect of life sentences?

My own attitude has undergone a complete transformation after my wife was charged with a comparatively minor traffic offence. Despite the fact that the prosecution scenario involved a gross violation of the laws of physics, she was found guilty by a bigoted and prosecutorial judge – as our lawyer pretty much told us she would be as soon as he knew who the judge was. Several things were striking about the whole process – the extraordinary delays by the police in providing any of the information requested, the determination on the part of the police and prosecution to secure a conviction at all costs, and the utter contempt displayed by the judge to any argument produced in favour of the defence. The latter was not just directed at our defence – the case was interrupted numerous times, and in each case the judge sided with the prosecution, in one case regarding it as highly unreasonable that the defence were asking for an adjournment because the police had only provided a requested document the day before, in the form of an illegible fax. Give me a jury over a judge any day of the week.

We did experience numerous delays in getting to court, none of them the fault of our lawyer. One suggestion I have for speeding up the judicial processes is that judges might reasonably be asked to put in a full working day to justify their large salaries. As things stand, they seem to start at 10am at the earliest, take long breaks for morning tea, lunch, and afternoon tea, and get vaguely panicked if it looks as if there may be a chance that they won’t get out of the door by the stroke of 5pm.