Legal Aid

September 2nd, 2009 at 6:46 am by David Farrar

The discussion paper by Dame Margaret Bazley is here.

At this stage there are no firm recommendations, just issues for discussion.

  • In last year grants increased from 73,905 to 85,158. Mostly criminal, followed by family.
  • Cost of increased in last year from $108 million to $124 million. Of that $67 million is criminal. Family cases cost more on average per case.
  • 45% of legal aid budget goes on 5% of cases
  • The top 100 cases (0.17% of total) cost 17% ($18.3m) of total scheme
  • Top ten cases cost 300 times the average
  • There is a reluctance by LSA to apply the “prospects of success” test for legal aid applications, as they do not wish to usurp role of court.
  • Legal aid for Treaty claims is available from three sources – LSA, OTS and CFRT, and double dipping may occur even though info is shared.
  • A small but significant number of legal aid lawyers are of low quality, often unprepared, and over-committed
  • Problems especially with sole barristers with no offices in Auckland – “car boot lawyers”
  • The relatively low rate for legal aid work may be responsible for the quality issues identified.
  • In UK they are looking at preferred legal aid suppliers which reduces compliance costs and providers greater certainty of income for those preferred suppliers
  • Another option is a fixed fee for categories of cases
  • Little performance monitoring of providers
  • The focus on legal aid payments on court events ,may encourage lawyers to use only court events to move cases forward
  • Pros and cons of capping certain categories of legal aid are discussed
  • Bulk funding of some services to be considered
  • Pilot of Public Defenders Service to be extended in Auckland. Review found savings in legal aid costs, savings in court time and costs, improved quality of services,better training of junior lawyers, and greater trust between prosecutors and defence.

I have blogged previously my support for the PDS concept, and it is good to see the trial seems to have been successful. I think expansion of this service will be part of the solution – but only part.

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38 Responses to “Legal Aid”

  1. Patrick Starr (3,674 comments) says:

    “Problems especially with sole barristers with no offices in Auckland – “car boot lawyers””

    is this a bad thing? – whats the cost to taxpayers for them to have offices

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  2. tvb (4,502 comments) says:

    The PDS is basically the State taking over the provider of legal aid services. So the state is involved in the prosecution, the courts and now counsel who are supposed to be independent – are also an employee of the state. I do think having independent contractors does ensure that independence. I am in favour of having “preferred suppliers” with clear expectations of service. I do not think the agency should be contracting with suppliers of services where they fall outside those expectations and are expensive to do business with. I find it odd that when the Government and private sector are looking to increase the use of private contractors you and others are going in the opposite direction for legal services – where independence is crucial for the client. I believe having a salaried employee for defence work will reduce service, be more expensive (all those employee add-ons like holiday pay, sick leave, superannuation, office costs) and will encourage “drones” to do the work because they do not care and will get paid what-ever service they provide.

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  3. Mr Nobody NZ (391 comments) says:

    I also think that they need to look at other programs like the Diversion system. Auckland Central has an excellent system and the Sergeant in charge of it has a massive focus on not only the Victim and reparations but the also addressing the causes of the offenders actions, while other areas Diversion is treated as a rubber stamp exercise to simply remove pressure from the court system.

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  4. toad (3,674 comments) says:

    I offer qualified support for a Public Defenders Service DPF. The danger is that it becomes a haven for lazy or incompetent lawyers who would not otherwise survive as litigation barristers, and poor service is delivered to criminal defendants.

    But I think that can be averted if salaries are sufficiently high (I suspect there are many lawyers who would prefer to work for a salary and avoid the administrative hassle of having to run their own practices) and rigourous monitoring of standards occurs.

    tvb, following your reasoning, the State shouldn’t be involved in prosecuting alleged offenders either. A Public Defenders Service would need to be structured to ensure its independence (which is more than I can say for the Crown Law Office – I have seen some completely untenable legal opinions presented and litigation pursued by Crown Law – presumably at the political behest of the government of the day. The litigation involving Ahmed Zaoui is a prime example of that.)

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  5. tvb (4,502 comments) says:

    The “car-boot” phenomenon probably happened in response to the 1/3 CUT in hourly payments in the late 1990’s and were then FROZEN for 10 years. In response to that Lawyers cut their over-heads and law firms (who have high over-heads) dropped out of the work. But my question is why should the state be funding gold plated law firm offices?? I do believe that the independent contractor system could be better managed by the agency.

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  6. gazzmaniac (2,307 comments) says:

    I don’t object to a crown defenders service, provided that it can provide the service required. Whether it has employee lawyers or lawyers on contract probably really doesn’t matter, provided that they are incentivised correctly. IMHO anything outside the mandate of the CDS should be paid for by the accused.

    What is it that we require of one? My thoughts are primarily for a speedy case, proper and impartial advice to the client, and in certain cases some research to be done – maybe they could also have PIs on contract.

    I really don’t think that any iwis should be getting legal aid for Waitangi claims – there are many iwis, if not all, who have lawyers in their ranks and know the system well. On top of that, they are virtually guaranteed to get something at the end of it, so there is no need for legal aid.

    I also object to legal aid for fighting resource management cases – however magistrates will have to take this into account if someone has to represent himself.

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  7. peterwn (3,305 comments) says:

    Strictly speaking, Public Defenders lawyers should be on the same pay scales as Crown Law and other public sector lawyers but that seems unlikely.

    About lawyer quality – I have been on two juries and in both cases I considered the Crown prosecutor needed a kick up the arse. In the latter case the Crown prosecutor tried to bullshit the jury on ‘self defence’ and I was disappointed the judge did not rebut this in the summing up.

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  8. tvb (4,502 comments) says:

    On major trials – like multi accused meth trials, homicides I think the LSA should pay a group of Senior Experienced Counsel a retainer of say $250,000 pa to do this work. That retainer is to give the Agency 1st call on their services and they would simply do the trials on an as required basis. The “retained” lawyer could undertake other work outside legal aid but legal aid work would have first call on their time. This would probably give the experienced counsel an incentive to “do a deal” as their fee is a flat fee for the whole year and is paid irrespective of how much trial time they undertake.

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  9. F E Smith (3,307 comments) says:

    The UK has tried major reforms, referenced a number of times in the discussion document, and has met with widespread opposition from the profession. This includes bulk funding, lowest rate tenders for work and a sharp reduction in barrister’s rates of pay.

    When they tried to set up a panel as tvb moots at 8.03am, they expected 2000 barristers to go on the panel and got 200. Barristers and firms of Solicitors in the UK are going out of criminal law on a major basis.

    Just like they are here. The report clearly notes that low pay is a factor and the defence bar is not replacing itself. The low rates of pay and the admin are causing a real reluctance on the part of firms to undertake criminal legal aid work.

    The ‘car boot barrister’ problem is mostly restricted to Auckland, although the report only mentions that as an aside, and is rarely seen elsewhere. But it misses the point about why the defence bar become barristers. We become barristers because the firms DO NOT want us to practice criminal law within the firm structure. If we really want to do so, then we are paid appalling money when compared to our similarly experienced civil litigation and commercial colleagues. Therefore we head to the separate bar to make our own living.

    Has anyone else noticed that Dame Margaret has not turned up ANY evidence that defence lawyers are rorting the system? She merely repeats the Justice Department mantra (and it is, because it has turned up in previous MoJ reports) that defence lawyers MAY be incentivised to stretch out cases to make more money. There appears to be, however, absolutely no evidence of that.

    In fact, she rightly points out that legal aid has increased in cost because more prosecutions are being brought by Police as the Police numbers have risen, and because the Labour Government broadened the criteria of eligibility for legal aid two or three years ago. None of that is the fault of the defence bar.

    The Crown should be a government department and we should not have private firms undertaking prosecutions on a profit making basis. Surely there are millions to be saved by turning the prosecutions over to a department that would not be incentivised to take dodgy prosecutions because they make money from it…

    If the LSA does not monitor the performance of defence counsel then it is because there is no clear mandate to do so. I am on a branch litigation committee and I am well aware of the state of the local defence bar. There will always be lawyers who should not appear in court, both for the Crown and the Defence, but right now nobody has any clear authority to do something about it. Ironically, the LSA would probably respond best to a complaint from the Judges!

    I don’t think the PDS is has lazy or incompetent lawyers, but it is a government department and therefore has not the independence of being separate from the prosecuting authority. And it only saves money, and even then not much, on the small summary matters. The jury trials see no savings at all and they don’t do the big ones any more. If the PDS had just the one major, multi-defendant and multi-week trial to do then their savings would go out the window.

    But I come back to what I think the major point of this document should be seen as- there is no evidence in it of lawyers delaying the progress of justice in order to make money.

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  10. david (2,563 comments) says:

    One conundrum of the system which encourages top drawer lawyers to participate, is that it provides those who have nothing, a defence opportunity to be represented by a much higher level of quality representation than the “average Joe Blow” who doesn’t qualify and has to pay but can’t afford the top drawer.

    I don’t know the answer but it seems that there is an opportunity to do some heavy work on measurable outcomes so that the productivity and bangs for teh buck can be identified and some controls put in place. This would reserve the higher quality LA lawyers for the more complex cases and we just might have to acceppt that there is a level short of perfection that has to be set so that multiple appearancces and appeals are restricted.

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  11. Jack5 (5,151 comments) says:

    Astonishing that it cost taxpayers $561,000 to let in Ahmed Zaoui, who crashed into NZ as an illegal immigrant.

    Why should taxpayers offer legal aid to illegal immigrants at all? Surely a tribunal can hire a translator, interrogate the gatecrasher in the style of European legal systems, and decide whether the person should stay.

    What about other money that has been funneled to Zaoui?

    His entry was the result of the MSM backing far leftists who made Zaoui a cause celebre.

    Add to that the NZ Herald report (link below) of the Mt Roskill school invasion and you can see why many of us think the MSM are failing this country in a huge way. TV yesterday reported that an Afghan youth gang was involved. The Herald doesn’t mention “Afghan” . If it was white or Maori kids who had broke into a classroom you can guarantee their ethniciity would have been made clear.

    The multiculturalists, lefties and liberals have brought us the blessing of triads. Does this mean they have brought us another course to the crime meal — Muslim gangs?

    The link:

    http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=10594670

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  12. GPT1 (2,122 comments) says:

    “A small but significant number of legal aid lawyers are of low quality, often unprepared, and over-committed ”

    To which you can add “undertrained”. With less and less firms doing any legal aid (a large Chch firm, for eg, dumped criminal legal aid some time ago and has recently dumped family legal aid as well) no one is training the litigation lawyers before they go to the independant bar. Or they’re going straight to the independant bar and learning on the job (if at all).

    And in terms of civil legal aid I know of only one person who does it in Christchurch.

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  13. Chuck Bird (4,924 comments) says:

    I heard Barry Hart and Greg King on the radio talking about how other areas of law like matrimonial and treaty claims used more money. I do not accept that as valid argument. All areas should be looked at.

    I think most people would agree that someone charged with a crime particularly a serious crime should be supplied with a lawyer if they cannot afford one. I agree with this but do think there should be limits. There should also be disincentive for merit less defences and appeals.

    When someone is convicted of a callous murder I do not have problem paying for an appeal against conviction if it has some merit. However, I do have a problem funding an appeal against sentence on the grounds that some other scumbag committed an even more callous murder and got one year less non parole period.

    I also have a problem funding criminals with a list of convictions as long as your arm.

    I very much doubt if I will end up in criminal court but it can happen to anyone. Say I used too much force defining my home and property. I have asserts so could end up paying tens or hundreds of thousands of dollars and be found not guilty. Yet some recidivist criminals seems to have no limits on how much legal aid they can get to fund merit less defences like the scumbag who murdered the deaf girl.

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  14. GPT1 (2,122 comments) says:

    I do find it ironic that Labour supports bulk funding for defending criminal charges laid by the state but it’s completely unacceptable (if not “the forerunner of privatisation”) for education.

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  15. F E Smith (3,307 comments) says:

    Chuck, what about merit-less prosecutions? The Poilce can bring prosecutions with impunity because they know that in 99.5% of the time there will be no repercussions on them if the charge has no basis.

    It happens a great deal more often than you might think.

    The Bazeley Discussion Document makes the point that a lot of the criminal legal aid increase has been caused by an increase in the number of charges brought by Police. This corresponds pretty much with the increase with the number of Police in service.

    What interests me more is the increase in admin cost per case from $100 to $250 per file. Now, for a straight guilty plea we lawyers get $248, so the admin cost in those situations is actually more than the payment to the lawyer!

    I don’t think you can really limit the number or nature of appeals. What seems without merit to the public can actually be an important point of law. Also, don’t forget that there were less than 500 criminal appeals to the Court of Appeal last year, so out of 60,000 grants of Legal Aid I don’t think that is really much of an issue. An appeal to the High Court is paid such a ridiculously low amount that I won’t do them on legal aid. I am supposed to, but I won’t. Payments for appeals to the Court of Appeal are generally only a couple of grand a time.

    When you say “Yet some recidivist criminals seems to have no limits on how much legal aid they can get to fund merit less defences like the scumbag who murdered the deaf girl.” I remind myself that most here don’t have legal training, but you must remember that everyone has the right to deny a charge, no matter how stupid the defence might be. The lawyer’s are required to act on instructions even when they are telling the client that their defence won’t work and is embarrasing to advance!

    Also, remember that legal aid officers are not lawyers and have no experience in running cases. We are at the mercy of civil servants. So you can’t have the legal aid based on whether the defence is a go-er, because who decides whether a defence will work?

    We make the mistake of thinking that those high cost cases are indicitive of all cases. They aren’t. Most cases are done at the lowest rate of legal aid and are significantly capped in how much funding you get.

    We have a lot of very good lawyers doing legal aid. Unlike overseas, where criminal defence on legal aid draws only the least capable advocates, we have very high standards at the defence bar. Don’t read too much in what the media are saying about the standard of defence lawyers- the poor ones are a very small part of the equation. Yes, we need ways to weed them out, but if they get private instruction then there is nothing we can do about it. Moreover, it is a mistake to think that the civil litigation lawyers are any better than criminal lawyers. They are not, and we have a great deal more court experience than they do.

    I know the media will try to beat up this issue, but the Bazeley report really pulls the rug from under Simon Power in a lot of areas.

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  16. GPT1 (2,122 comments) says:

    The increase in compliance/administration is really ironic. At the same time as legal aid rates have been slashed (1990 onwards) compliance has increased to almost 20% of the total budget. So around 20 cents in every dollar that LSA has is spent trying to make sure no one rips the system off. Great use of money.

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  17. tvb (4,502 comments) says:

    I too query where all this money is being made out of seeking multiple adjournments. Most cases are being adjourned (for sentencing, reports at the request of the Judge). My attitude to adjournments is they waste time and money and should be avoided, there is certainly no financial incentive to seek them. So I ask Dame Margaret produce the evidence how multiple adjournments are rorting the legal aid system. Facts please.

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  18. GPT1 (2,122 comments) says:

    Adjournments (remands) are generally a pain in the ass. I have a sentencing matter that is up to its 3rd go. Admittedly for good reasons and outside of my control but there is no money in preparing for three dates weeks apart. Hell, there’s no real money in any of it.

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  19. F E Smith (3,307 comments) says:

    I don’t know about you, GPT, but I never seem to make any money with adjournments. You can claim for the 5 minutes of court time you use, but the LSA won’t give you any more money.

    I don’t know where this idea that adjournments are lucrative to the defence lawyer comes from. It is pure bollocks.

    Let’s say I have a trial coming up. I get say 10 hours prep time for it. For some reason it doesn’t go ahead (for example one I had earlier this year where the complainant didn’t turn up). I do not get any more time for preparation and can only claim the time I spent in court. And I don’t get paid until after the trial takes place! So there is no extra money for us at all, other than the piddling little amounts for the appearance.

    Adjournments are a pain. Many of them these days are caused by the Police, as confirmed to me by one of the local registrars last month. The Police are getting more disorganised about all of this, not more organised, and this costs us all time and money.

    Give me a straight guilty plea any day. Far better money for less work!

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  20. backster (2,184 comments) says:

    CHUCK;;;;;;;You are right on, the easiest way to reduce the cost would be to ration the availiability of legal aid per capita to a limited number of convictions. As can be seen from David’s summary the reverse tends to apply with the worst recidivists consuming a disproportionate amount of the funds available.

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  21. Chuck Bird (4,924 comments) says:

    F E Smith

    There are a few issues here.

    Firstly, merit less defence. Stephen deals with it very well.

    http://www.stephenfranks.co.nz/?p=2072

    He also deals with the other point I raised about appealing sentence for murder.

    His suggestion is that if some lowlife gets 28 year minimum NP he should have to demonstrate it is way over the top and the appropriate sentence should be something like 14 years to get any reduction. I do not accept in the case of some horrendous crimes we should apply some logical formula. I wish I could find his article on that. He puts it much better than me. His solution is that in the case of vicious murder the perpetrator should not get an automatic second bit of the cherry without a cost. It the sentence was not manifestly hash and the appeal fails more time should be added on.

    If the case of murder I can accept a recidivist crim getting legal aid but not for lesser offences.

    If ACT’s three strikes policy is adopted a criminal gets a warning after certain offences. There is no reason why a recidivist criminal cannot be warned next time they pay for their own lawyer or they are on their own. Everyone deserves a second chance and maybe a third of forth but there should be a limit.

    I do not see why I should pay legal aid for someone up for their tenth DIC plus driving while disqualified for the lawyer to tell the court that his mother never loved him or her and they had an alcohol problem.

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  22. GPT1 (2,122 comments) says:

    FES – the bit you forgot to mention is that you will have spent 20 hours preparing (paid for 10), the trial is then put off for several months and you have to spend another 10-15 hours getting back up to speed. If you are really, really lucky LSA might give you a couple more hours prep. So you end up doing 30-35 hours prep and getting paid for 12 rather than 20 hours and getting paid for 10. Brilliant.

    The new Criminal Disclosure Act has caused more chaos not less. The police powers that be have no decentralised the disclosure process to Officers in Charge. Most of whom joined the police to run after criminals and drive cars not do paper work (with all due respect). Even if the OC is a diligent type and not on holiday or night shift trying to find out who they are to get disclosure is difficult and adds more hurdles to the process. So instead of dealing with Prosecutions for all non-Crown matters you end up dealing with a number of different cops on shift work. Hardly any surprise the police are the cause of more remands.

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  23. F E Smith (3,307 comments) says:

    Chuck,

    you pay for someone accused of their tenth EBA (Excess Breath/Blood Alcohol) charge precisely because they are likely to go to gaol if they are convicted. They need counsel to represent them because they obviously have real issues that is affecting their life and judgement. Usually that many EBA convictions is a sure fire sign of an alcoholic and that is one of the reasons why counsel is appointed to assist, because the person themself won’t be able to do it.

    One thing you must realise is that Judges have a phobia of the self-represented litigant. They hate them. Self-reps tie up the Court, say things they can’t and never know what they are doing. They stretch out proceedings and cause delays like you wouldn’t believe. Funnily enough, all of the things that defence counsel are accused of! But can you imagine the chaos if Clayton Weatherston had defended himself? Or if Graeme Burton had done so?

    But no judge will encourage people to represent themself. That is why we have duty solicitors, because even for the simple stuff they slow things down and stuff things up. But if you warn a crim that next time they will have to represent themselves, well they just will represent themselves! I have lost count of the number of people I have had to persuade that they haven’t got a defence but instead have mitigating factors in their case. What you will find, I suspect, is that in fact more people will defence matters and not less. So that proposal would probably backfire as far as the court is concerned. And judges time is far more expensive than a legal aid lawyer’s time.

    I think you would be better increasing the recovery regime to a stage where they can automatically obtain attachment orders on wages or benefits to get the legal aid back. That is where I think the focus should be.

    The thing about penalising people for appealing is that you put a chill on the appeals of those who might truly be innocent or have been subject of a miscarriage of justice. I don’t think we can do that in a society where we presume the accused person is innocent and where we say you have a right to a fair trial. If you take away that right, then you will get rid of a lot of appeals.

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  24. Chuck Bird (4,924 comments) says:

    Chuck, what about merit-less prosecutions? The Poilce can bring prosecutions with impunity because they know that in 99.5% of the time there will be no repercussions on them if the charge has no basis.

    It happens a great deal more often than you might think.

    You do not have to convince me. I sat for three day on a jury on a rape trial where the only so called evidence was a bitter woman’s lies. The verdict took less than half an hour max. A number of the jurors went and had a drink with the poor guy and his supporters. That may be poor form but there was no way he was guilty. I called the police prosecutor and he told me of the accuser sticks to her story police policy is to let the jury decide. Whatever happened to the criteria of a prime facie case.

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  25. F E Smith (3,307 comments) says:

    GPT: I was understating it, mate!

    We have all been there on our cases, haven’t we! Was it you who posted about doing 9 hours work on a file and getting paid for 3 hours?

    My experience is that if the trial is a ‘standard’ trial then if it is put off the LSA is unlikely to give you more prep time. Sometimes they do if there is an excessive wait between dates (like 6 months or more) but that is rare.

    Of course, nobody mentions the paperwork involved, which is excessive. A colleague of mine did an appeal in the Court of Appeal once. The overall bill was $1500, plus the flight up and back and a night’s accommodation ($99, in case anybody was wondering, and I know because I booked it for him!). When he got back and did the bill the LSA said that he had forgotten to file a particular bit of paper with them so they weren’t going to pay him a cent. So he did the whole thing for free.

    We have all had times when the LSA has made us work for free. Or to do extra work for no extra pay. It is just part of the job. But at least we shouldn’t get blamed for the problems when they aren’t of our making. They should have left the administration with the Courts and the Profession, when admin costs were so much lower than they are now.

    The Criminal Disclosure Act is causing all sorts of problems and the Police are exploiting them. Most significant is that they are giving disclosure to the clients and then refusing to give a copy to the lawyer after the client loses it. There is an easy way around that, however: just plead not guilty and then you get a nice clean copy!

    There was nothing wrong with the old way at all. These politicians just want to write new legislation to give themselves something to do.

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  26. Chuck Bird (4,924 comments) says:

    F E, I can accept an appeal against conviction for murder. I guess my view is somewhat coloured regarding sentence as i believe that worse murders get life without parole. But on appeal against sentence for murder I believe there should be a cost. If someone like the killer of the deaf girl gets 23 years he should consider himself luck he did not goet life without parole or the death penalty as he would he the US. An appeal on the minimum non parole show lack of remorse and should be shown with an extra few years added on. I wish I could find Stephen’s article on his blog but he has so many>

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  27. F E Smith (3,307 comments) says:

    Chuck, I have seen that more often than I care to think about it!

    Good on your jury for going and having a drink with the accused- hope nobody gave him a hug!

    With the cops it is usually a matter of whoever calls first gets believed.

    I envy your jury service. They had a number of years to call me before I was admitted and never got the chance! I would love to see just how it looks from the jury box and what happens in the jury room.

    I had word get back to me once on one of my clients who went down in front of a jury- apparently the jury didn’t like the way she looked and therefore decided to convict!

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  28. big bruv (14,147 comments) says:

    Fuck all this legal aid crap, just bloody do away with it.

    If I break the law and choose to fight the charge I can hire my own overpriced pompous lawyer, everybody else should have to do the same.

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  29. F E Smith (3,307 comments) says:

    bruv, you will have my support on that any day of the week. My income can only improve if I cease to do legal aid work!

    Actually, a local lawyer told me that after his firm stopped doing family legal aid their workload was just as busy but their profits went up signficantly. At that moment my main short term goal in practice was to get to where I only did legal aid if I really wanted the case.

    So, can you make that submission to the Legal Aid review?

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  30. big bruv (14,147 comments) says:

    Ha ha…

    The bastards would not let me within a hundred miles of the place F E.

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  31. GPT1 (2,122 comments) says:

    As an aside Chuck Bird is touching on a matter that has raised eyebrows with the Court of Appeal “tinkering” with sentences. Basically the principle is that a sentence should only be reduced or increased if it is manifestly excessive or manifestly, erm, soft. Recently the CA appears to be fiddling around with a few months here and a few months there – almost trying to do the now defunct (hooray) sentencing council’s role by default. Seems strange to me.

    9 hours for 3. Sounds about right. I have gone on about the clean skin with concerned parents who was not guilty but took piles of time and I got the resounding PFO from LSA when i had the temerity to suggest a bit more time might be in order.

    The great irony with the Criminal Disclosure Act is that after years of getting the police up to some sort of reasonable standard for disclosure the minimum requirements are now less under the Act. FES’s point about disclosure being given to the client is very good. Who writes these frigging laws? Let’s be honest it is a fair stereotype to point out that if they weren’t stupid they probably wouldn’t be in the shit to start with. So basically Parliament is expecting stupid people to assist a Court system that they barely understand. Awesome.

    As you say there actually wasn’t anything broken when it came to disclosure.

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  32. tvb (4,502 comments) says:

    The Disclosure Act was the trade-off for getting rid of deps. The criminal justice system is about balance. Push something in one direction and you get a reaction elsewhere. The bottom line is Judges and Police want clients represented. So how do you provide that fairly. Of course there are some rogue lawyers who create rpoblems, though I have not seen them operate all that much. The vast bulk of lawyers make the system work, without which there would be bedlam. It would be very tempting indeed for lawyers to withdraw from the Court system for 1 month and see what happens.

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  33. peterwn (3,305 comments) says:

    Instead of just putting the boot into car boot lawyers, perhaps someone would like to scrutinise the behaviour of both lay and legal prosecutors. I have the impression that on the eve of a defended hearing they quickly look at the file, realise that the turkey is not going to fly and pull the charge just before the hearing.

    In one case there were two 5 day jury trials (the first jury was hung) and there was no way the prosecution was going to get a conviction unless the prosecutor could bullshit the jury. What a blooming waste of everyones time, not to mention a (almost certainly) destroyed police officer career.

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  34. GPT1 (2,122 comments) says:

    TVB – It would be very tempting indeed for lawyers to withdraw from the Court system for 1 month and see what happens.
    Would it what!!

    Peterwn. As far as I know Police Prosecutors only look at the files they prosecute they day before. I don’t know when the get them – certainly no more than a few days earlier. I regularly get cases pulled on the day of fixture after preparation has been done. Crown tend to look at cases earlier and for major ones through out the investigation but then again, as FES notes, the Crown can have their own reasons for going through with something.

    I also suspect that there has been an increase in non police prosecutions over the last several years. There are all sorts of crimes hidden away in various acts – quite a lot of them strict liability and a good number with some fairly stoic fines. And unlike the police *some* of the prosecuting bodies get some or all of the fines.

    As an aside on prosecutions a Chch Judge recently lamented – what has happened to the caution? Not every piece of misbehaviour or crime has to go to Court. Hear hear.

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  35. F E Smith (3,307 comments) says:

    tvb, we defence lawyers were very close to a withdrawal of service last year. Had there not been even the one-off 10% increase in the rates then you probably would have seen a strike after the budget.

    It almost happened again this year, but then the LSA released an updated set of guidelines that was a bit more fair than previously.

    However, if Simon Power keeps on accusing his professional colleagues of defrauding the legal aid system then he might not have a strike on his hands but a wholesale and total refusal to do legal aid at all. The Courts would go nuts with so many self-represented people on hand and delays would skyrocket.

    Of course, then people would have to start paying privately to get representation and there would be a huge market for people to lend money to our clients to cover our fees.

    We do legal aid as a public service, not because it is the only way we can make a living. Power needs to realise that.

    GPT, you are correct in that the police prosecutor usually only gets a days preparation for the file. Of course, by then it should be complete and all they have to do is present it. That shouldn’t be too difficult.

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  36. GPT1 (2,122 comments) says:

    ‘Shouldn’t be too difficult’ – perhaps FES. My point was more that because they get it so late deficiencies in the case are often not addressed until the 59th minute past the 11th hour. In fairness, most of the police prosecutors (at least the uniformed ones) are fairly good at making an objective decision on whether they have the evidence for a fair prosecution.

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  37. F E Smith (3,307 comments) says:

    That is true, mate, but isn’t that what Status Hearings are supposed to be about? If only the police treated them as they were meant to be- disclosure completed, file briefed and nothing more to do!

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  38. vanguard (3 comments) says:

    I’m a defence lawyer working in Auckland and I agree with the comments of F E Smith et al above

    Often, it does feel like a “no win” situation doing criminal legal aid work. We are criticised for keeping overheads down by taking shortcuts eg not having an office, yet at the same time we are criticised if we make too much money off legal aid! We are certainly not allowed to be business-people with an eye for profit like our corporate lawyer colleagues.

    The irony now that I have a flash new office with a lovely piece of art-work and friendly support staff is that I have had precious few clients come up to savour the ambience, sip earl grey tea, and discuss the finer legal points of their cases. It should come as no surprise that those people who have trouble even showing up to their own court hearings, aren’t the best at keeping legal office appointments either! Some of them don’t even have telephones or a stable address. Some are in custody. Some keep moving around, changing their phone numbers, and NEVER make contact or show ANY interest in their own cases.

    The criminal lawyers in this thread will know what I am talking about. However it seems that Dame Margaret wasn’t interested in talking to lawyers when writing this “discussion paper” because none of these practical problems we encounter at the coal-face are mentioned!

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