NZCCL raises its concerns with the Ministry of Justice’s Legal Aid Review.

The Council intends to focus on 4 areas of concern –
1. The delay in determining the outcome of applications for legal aid
2. The lack of clarity in the criteria for eligibility for legal aid
3. A perceived subconscious prejudice or predetermination as to the merits of some applications
4. An unduly complex process with limited ability for objective internal review.

Dame Margaret Bazley
Chairperson
Legal Aid Review
C/- Ministry of Justice
PO Box 180
WELLINGTON

9 October 2009

Dear Dame Margaret

1.0 INTRODUCTION

1.1 The New Zealand Council for Civil Liberties Inc acknowledges and appreciates your invitation to comment on the discussion paper, Improving the Legal Aid System: A Public Discussion Paper.

1.2 The Council aligns itself with and endorses the views contained in the submission presented by Mr Tony Ellis, Barrister, of Wellington. Mr Ellis is the immediate Past President of the Council, and he held that position for several years. Executive members of the Council have witnessed his determination to ensure that Justice is accessible, and that the rules and procedures relating to access are reasonable, fair and transparent.

1.3 The Council notes the statement in your Introduction to the Discussion Paper that, in addition to meeting with many people throughout the country, you have also sat in many courtrooms and watched the legal aid system in action. We note that there is no reference to observing the process ‘behind the scene’, i.e. the manner in which applications for legal aid are received, processed, assessed, determined and reviewed.

2.0 CONCERNS

2.1 The Council intends to focus on 4 areas of concern –
1. The delay in determining the outcome of applications for legal aid;
2. The lack of clarity in the criteria for eligibility for legal aid;
3. A perceived subconscious prejudice or predetermination as to the merits of some applications; and
4. An unduly complex process with limited ability for objective internal review.

2.2 One of the basic precepts in a quality legal system is that “justice delayed is justice denied”. This aspect is of particular importance at the outset of any legal proceedings, or when a new dimension of those proceedings (e.g. an appeal against a lower court decision) is being undertaken. A defendant, or an appellant, is entitled to the best legal representation at every stage in the proceedings, and the more serious the case the more important is the need for that representation, and the earlier it needs to be available.

2.3 The second concern in a sense flows over from the first. The absence of clear criteria for eligibility makes the tasks of the applicant for legal aid and of the person designated to determine the application more difficult, involved and time consuming than they need to be. It is surely possible to determine appropriate criteria that will cover a minimum of 80% of applications, so that in essence both the applicant and the Agency can process the application on a straightforward basis and within a short time frame.

2.4 Mr Ellis has referred to instances where, even at the highest level in our Court system, there has been a well-intentioned but subconscious predetermination as to the outcome of legal aid applications in particular contexts. The presence of clear criteria for eligibility at all levels in the legal system will go a long way towards eliminating this area of concern.

2.5 The fourth area of concern contributes significantly to the delays and difficulties experienced by applicants. The presence of teams of Specialist Advisors to support a Grants Officer seems to be recognition that the current process is now too difficult to manage effectively in any other way. Where those advisors significantly outnumber the decision maker, then it is very difficult to demonstrate that the roles have not in fact been reversed.

2.6 Moreover, in this environment it is equally difficult to be able to request and obtain a review of a decision, and be satisfied that the review is sufficiently objective. The tendency is usually to support the status quo unless it is shown to be demonstrably flawed, and in the process fine nuances are easily overlooked or discarded.

3.0 PROPOSALS

3.1 The Council has 4 practical proposals to put forward –
1. Revise the internal processes at the Agency;
2. Develop criteria which are set out clearly;
3. Implement a 2 tier approval system; and
4. Where an application is declined the decision be made and communicated promptly.

3.2 The most important practical proposal is to ensure that the processes within the Agency are rectified at the outset. They need to be simple, straightforward, transparent and prompt. If the ‘front end’ of the entire Legal Aid system remains flawed, then the model will always be flawed, and no end of fine tuning in its other aspects will eliminate that defect. The injustices that follow may remain buried and undetected for too long.

3.3 The Council considers that the criteria which govern the approval of applications for legal aid need to be specific and set out clearly. In particular, the distinction between criteria which are mandatory and which are discretionary needs to be established. Further, where criteria are discretionary, there needs to be a ranking as to their respective priority. Both the distinction between criteria and the ranking within discretionary criteria may change in the light of experience, and these changes notified in an appropriate manner.

3.4 The Council postulated in paragraph 2.3 that it was surely possible for 80% of applications to be processed on a straightforward basis and within a short time frame. This proposal utilises the Pareto principle, but, without knowing any of the particular details of applications, that percentage might readily be higher. The Council envisages that applications which have a considerable degree of urgency attached to the legal proceedings will fit within this category.

3.5 Applications which are complex will necessarily take longer to determine. Even so, it is, in the interests of justice and access to the law, highly desirable that there be a maximum time frame within which a determination is made. If a determination is outstanding at the expiry of that time frame then the application deserves to be approved

3.6 As a matter of principle, the Council believes that the appropriate mindset that the Agency needs to bring to consideration of all complex applications is not how to exclude it from the ambit of the provisions, but rather how to include it within them.

3.7 The fourth proposal is largely self-evident, and is relatively straightforward when the principle espoused in paragraph 3.6 is applied.

4.0 OTHER OBSERVATIONS

4.1 It is particularly important that the legal aid system is well regarded by all parties involved with it, and to achieve that recognition the process needs to operate with integrity at every level. For any legal practitioner to ‘walk away’ from the system because of perceived delays, difficulties or inconsistencies is an indictment, and an indication that the underlying issues remain too deep or too difficult.

4.2 The Council also considers a greater degree of parity is required in the allocation of resources to those who undertake the duty to prosecute and to those who undertake the duty to defend those individuals involved in the legal system.

4.3 Even in times of economic recession there is still the need for legal aid, indeed probably more so as more economically disadvantaged people collide with the criminal justice system. We have heard anecdotal reports of those facing minor offences increasing being denied legal aid. Those facing a possible period of imprisonment should not be denied aid just to save money. Indeed we query whether it does save money, as the costs of imprisonment for the Government are high, as are the consequences to society of someone imprisoned even for a short time. The Council considers that regardless of cost, economically disadvantaged people facing imprisonment should receive legal aid.

4.4 What further worries us is that people now plead guilty to minor charges not because they are guilty, but because the cost of defending a charge without legal assistance is too great.

5.0 RIGHTS OF THE MENTALLY ILL

5.1 We are concerned that the increasing number of the prison population who are mentally ill and intellectually disabled will not have their voices heard in this review.

5.2 This was referred to by Mr Ellis in his submissions to the Court of Appeal yesterday quoting from Bartlett & Lewis :
P 70 Few countries which have ratified the European Convention on Human Rights have systems of representation that would survive challenge. Most have not considered mental health representation a political or funding priority, and when representation is provided, in some countries it routinely fails to meet any adequate standard. There is therefore a major lack of compliance. …

P 251…people with mental disabilities who are subjected to substandard legal representation cannot be assumed to have the knowledge or the ability to recognise the difficulties and draw them to the attention of the relevant court authorities. If the court believes that reasonably competent representation is a part of the client’s rights under Articles 5(4) and 6(1), then it should insist that the state be proactive in ensuring such a standard. …

P 252 Inevitably, much will depend on funding. Lawyers will be understandably reluctant to perform services for which they are not paid. If a reasonable standard of representation is to be achieved States must be forthcoming with reasonable funding. Such a duty is buttressed by Article 3 of the United Nations Basic Principles on the Role of Lawyers:

Article 3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organisation and provision of services, facilities and other resources.

Governments should be expected to live up to that commitment.

5.3 The Council urges that better funding and training is provided so that this serious disadvantaged group does not continue to fall by the wayside.

5.4 The Council also notes with interest that other minority groups are disadvantaged, and considers the quality of representation may have a part to play in this.

5.5 The Council notes the Government will be required to answer the following questions before the United Nations Human Rights Committee in New York in March 2010, and considered this review should also consider these questions:

Right to life and prohibition of torture and cruel, inhuman or degrading
treatment and treatment of prisoners (Articles. 6, 7 and 10)

“Please indicate(a) whether persons detained on mental health grounds have prompt access to judicial review of their detention; (b) whether inspection systems have been established in line with the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care; (c) what measures have been taken to redress the high number of persons with mental health problems in prisons. Please also provide detailed information on mental health care in prisons.”

“What measures have been taken by the State party to address the high level of incarceration of Maori, in particular women? Has the State party fixed specific targets and timelines for reducing the high number of Maori in prisons? What measures has the State party taken to reduce levels of reoffending by Maoris?”

Kevin McCormack
Secretary/Treasurer