Features

In law, what plea so tainted and corrupt
But being season'd with a gracious voice
Obscures the show of evil?

- The Merchant of Venice III.II

At any time of the week, Courtroom One in the Manukau District Court is a busy place; in the half-hour or so before lunch, it gets pretty hectic. Lawyers rattle in and out of the double glass doors as their cases require carrying mugs of coffee and piles of files. Clients - along with their cousins, friends, daughters and mothers – sit in the public gallery glancing every so often at the Rainbow's End Rollercoaster outside. Defendants are called up from their seats or from the cells if remanded in custody, walking with a particular inimitable rhythm to each of their strides. Some attempt to say something, others just stand their silently waiting to be asked. At about ten to one, a man is led through the doors. His head rests back on his shoulders. He looks bored or, at least, a bit tired. The police prosecutor alleges sexual assault. The man is remanded in custody until Friday because his assigned duty solicitor is unable to lodge an opposed bail application for lack of information and legal aid approval. This, the presiding Judge Josephine Bouchier points out, impinges on the legal rights awarded to him in the New Zealand Bill of Rights. The Legal Services Agency needs to assign him a lawyer now, but this is unlikely. “Unless a tsunami arrives to rid us of these ridiculous new rules, we're stuck”, she laments to those in the court.
 

What lies beneath?
At the heart of Judge Bouchier's frustration lies a system in transition. Tasked with providing legal assistance to those who cannot afford it, the Legal Services Agency was established in 2000 but the system's history in New Zealand goes back to the 1912. Since July 2010, the operational strategy of the Legal Services Agency has undergone major structural change. So far, the changes have affected criminal law as it comprises the majority of Legal Aid grants and applications. In 2009/10, for instance, criminal Legal Aid grants (assigned to providers) accounted for 61,164 of the 87,885 cases funded[1]. Other funded areas include family, mental health, civil, refugee and Maori land cases.
 
In recent years, the entire organisation has been buoyed by controversy and administrative issues. In 2005, the Labour Minister of Justice, Phil Goff undertook to look at the LSA and its role in the New Zealand legal landscape. What resulted was the Legal Services Amendment Act 2006. The major feature of this, which stemmed from the first review of eligibility criteria for legal aid in almost 25 years, was that it expanded the proportion of the population eligible for the service by around 40%, from 700,000 to 1.3 million people. With this increased accommodation came the inevitable cost increases to the point where total Legal Aid spending has increased by 108% [2] from $97.06 million in 1999/00 to $202.1 million in 2010. Be this as it may, the administrative budget has expanded by 314% in the same period, while the average cost per criminal case has “only” increased by 101% from $669 to $1343.
 

With National's decision to curb spending in the context of the global financial crisis, the retiring Justice Minister Simon Power beefed up the rhetoric surrounding the need for a system re-write. “I think of the justice system as a pipeline and I have got to clear different parts of the clogged pipeline”, he told Greg King, presenter of TVNZ 7's Court Report, last year.
 
In 2009, Minister Power commissioned Dame Margaret Bazley to review the entire Legal Aid system throughout the country. Her recommendations have formed the basis for many of the changes that are presently taking place. Her report was highly critical of the service provided by Legal Aid lawyers, accusing 80% of South Auckland defence lawyers of “gaming” the system. About this figure, she says, “as Chair of the review I had to weigh up all the information that I received and a number of patterns and consistent stories emerged”. Her informal method is the subject of much contention. Labour's Charles Chauvel, Green Party member Dr Kennedy Graham and LSA general manager Stuart White are also among those who believe that the statistic is a “liberal interpretation of something that was said”.
 
 
Mark Henaghan, Dean of Law at Otago University, points out, “the difficulty with the Bazley report was that there was no systematic study of the whole country. They were what you could call anecdotal examples collected over a short amount of time...[but] it suited politics because at the end of the day when you get stories of things being exploited then people get annoyed about it and you are able to prune things back”. He adds, “the underlying issue is; is that cost worth it to society? That was a question that wasn't asked in the review”.
 

Critical report in hand, Power decided to underpin these changes with promises of higher quality service, lower costs and streamlined efficiency. The Legal Services Bill 2010 – which is before parliament at the moment and into its second reading - formalises two major actions. The first proposed change is the loss of preferred counsel in Category One and Two criminal cases and the second is the expansion of the Public Defence Service around the country. In regards to these two highly significant changes, two questions must be asked: will the changes achieve National's aims of higher service quality and lower costs? And were the changes even required in the first place, if an injection of accountability into LSA operational strategy may have been all that was required?
 

Blind justice
“3. Everyone charged with a criminal offence has the following minimum rights:
c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
-Article 6 of the European Convention of Human Rights
 

The loss of preferred counsel in Category One and Two cases has become the motivating action behind a civil proceeding in the Auckland High Court this month. Notably, the proposed law changes have not been passed and the Bill of Rights requirements approved, and yet it has already been implemented into LSA operational strategy. Three plaintiffs, including mother Rebecca Clark, are contesting the November 2010 ruling that formalised their right to choose their own lawyer in the Legal Aid scheme. In February, Auckland lawyers Brian Henry, Tudor Clee and Iswari Jayanandan represented the plaintiffs in a preliminary hearing that was then adjourned until early March. During the proceeding, Justice Rebecca Ellis infered that the prosecution should call on Mr Clee to step down as defence counsel due to a conflict of interest. His senior counsel, Mr Henry, eventually asked him to leave court. Last November, Jayanandan and Clee attempted to sue the Attorney-General on behalf of the Legal Services Agency, seeking an interim injunction to halt the implementation of this new policy. Justice Ellis informally rejected their argument that it contravened the Commerce Act (on grounds of reduced competition) and the New Zealand Bill of Rights, formally stating that they did not have a relevant position, as required in any court proceedings.
 

This time round, Ms Clark, who was denied the choice of legal representation, wants to test the system for herself. She explains that she does “not want to tell her story to every Tom, Dick and Harry”. The plaintiffs are also particularly concerned because Legal Aid is not always free. It can come in the form of a loan or caveat on an asset like a house or vehicle. Even if paying for a service, you are not entitled to the basic consumer right of choice.
 

Legal Services Agency general manager Stuart White goes on to explain, “whether you are looking at this as a loan or not does not make any difference to the way in which we assign the case”. Under the new system, an accepted grant is fed into the Legal Aid computer system and electronically allocated to a lawyer from a pool of available legal representatives. If accepted by the lawyer, the file is then sent to them by mail and they must track down their client. Previously, files were distributed at court after the client had arrived at court and the pair were able to discuss their case in person at a time when they were both available.
 

This loss of chosen counsel came into effect as a result of Dame Margaret Bazley's findings that the preferred lawyer policy was distorting the efficient allocation of cases. Some lawyers were biting off more of the legal pie than others with instances of one lawyer undertaking upwards of 400 cases a year. The publicised focus on case allocation has largely distracted from the greater picture, however.
 

When asked if he believed in the right to choose your own counsel, for example, Mr. White replied, “I don't think there is a right to choose your own counsel and that is because the agency needs to focus on a fair allocation of cases that are supported by legal aid between the lawyers that are available”. But surely, the agency's attention should rest with the needs of the clients you are commissioned to represent? And yet there are no measures to survey the satisfaction of clients using the system. “I guess the only basis on which we can determine whether the system is working satisfactorily is by the level of complaints we receive”, White explains. Similarly, in terms of informing clients of the changes being undertaken he says, “It is quite difficult to reach the client base of the LSA”.
 

Fight for your right
 South Auckland defence counsel Jane Northwood believes the right of preferred counsel should exist. This, she clarifies, is not out of personal interest but comes from a fundamental understanding of how she sees the system play out on a daily basis.  Alongside her colleagues Denise Wallwork and Robyn Turner, she has worked in Manukau for over 15 years. Since the changes in the system, they have seen cases where multiple counsel have acted for one client because “no one bothered to check whether they were assigned”. She has also seen many unsatisfied clients and an administration that doesn't seem to care. She accepts that “there were abuses of the system and several people have been highlighted as being those people”, but she doesn't think the system required complete overhaul.
 

Jane Northwood is not alone. Major Graham Rattray is the longest serving officer in the Salvation Army and is also the National Officer for Courts and Prisons. His business is not with lawyers, but with the other stakeholders in the justice system; victims, defendants and their families. Of those using the new system he says, “I think many of them feel that under the new lawyers their cases are simply just being pushed through, there is not a lot of understanding, not a lot of opportunity to talk about their case”. He sees the marginalisation of what Dame Margaret Bazley calls the “standard, low cost crimes” as the real issue. “We are aware of one or two cases where people have had reasonable defences, but they have been told to plead guilty and told to get on with it. We sense that this does not help the court system in that people who come to court often mistrust the system. I think where there is distrust, people don't try and make a difference.”
 
 
Adriana Pinnock is the president of the Criminal Bar Association. She has over 25 years experience in criminal law and although she no longer represents people facing Category One and Two charges, she is well informed by CBA members who do. The association believes that the right to choose your own legal counsel is a fundamental issue. “It's not just to appease someone who feels that the lawyer who has acted for them before might be able to do a better job, but it also is that the continuity is actually quite useful”, she says. It is this loss of continuity that has left so many people scratching their heads. Surely if a lawyer has a well-developed understanding of their client's criminal record or family background, it would better serve the financial and temporal interests of the court if they acted on their behalf instead of a lawyer who is less familiar with the same? “I have personal experience of that”, she says, “in a matter I am handling currently, it came in really useful for me to know the background because I had acted for the young fellow seven years ago. I knew that what might look like a very serious matter among his convictions was actually something he was convicted of when he was a youth”. This is important because the situation could have otherwise resulted in legal misrepresentation. Similarly, if a woman is more comfortable talking to a female lawyer or a Samoan is able to better express him or herself to a Samoan or Pacific Island lawyer, should their desires not be accommodated?
 

Of the need for the changes themselves, Pinnock believes they were largely unnecessary. “The legal service before they implemented this change had already gone halfway towards ensuring that where a person did want someone specifically, they had good reason”. And she cannot see where the savings are being made; “I can't see how it would save money. First of all the agency has simply shifted into the justice department as far as we can tell and, secondly, in terms of Legal Aid dollars being spent, they have had to establish the Public Defence Service”.
 

Jonathan Temm, QC and President of the New Zealand Law Society, agrees with Ms Pinnock. Generally, he believes that “preferred counsel was being abused by some people”, but that “probably in the fullness of time something in between the two [systems] will be the outcome”. However, he goes on to say, “the madness, I think, is that the government thinks it can run Legal Aid and provide legal services cheaper than the private sector”. In the meantime, LSA is “training these people really well and spending lots of money on [the PDS] and we're happy about it because they are all lawyers and all members of the Law Society. But let us be clear about it; when the chickens come home to roost, it is not going to be cheaper. It is much more expensive and you should have looked at it a different way”. Formally, however, the NZ Law Society agrees with the changes that have been implemented; “when you balance all the things that need to be balanced, rotation is as good an option.” Just like going to a doctor or enrolling in state-funded education, it is not a right to choose your own lawyer.
 

But should it be? Even in the public health system, you can often choose your own doctor or choose not to see them. Parents can opt for their child to be put in a particular class; granted, that this does not always happen. Both the health and education systems recognise that “institutional knowledge of a client that builds up over time [is something] that people want to carry forward”. Temm's words, not mine. In his view, “this is where the tension lies. It is a choice thing and as the old saying goes, 'beggars can't be choosers.'” This is what it comes down to; can money buy justice in a system where equal access is fundamental? “In principle, I think if we are giving people equal access to justice then people should be able to choose who they want as their lawyer; the lawyer who they think will be able to do the best job for them”, Mark Henaghan argues.

 
So is the new public criminal legal aid system working towards a more efficient, cost effective, high quality service? No. So far it has stripped people of their basic human and consumer right to have access to legal counsel of their own choosing. The changes have also increased the administration involved in a system that had already seen a 300% increase in its budget over the past ten years. You know times are tough when judges look to tsunamis as the only feasible solution to their administrative burdens.
 

But where to from here? The Legal Services Bill is expected to be passed into law in time to see the amalgamation of the Legal Service Agency into the Ministry of Justice by July 2011. Synergies and an improved complaints management process are promised alongside other yet unannounced changes to civil and family legal aid procedures. In other words, it's a long and unfamiliar road ahead. The question is: are we even going in the right direction?





[1] Http://www.lsa.govt.nz/about-us/publications/documents/Criminal_Law_Provider_Supply.pdf


[2] Http://www.lsa.govt.nz/about-us/publications/documents/New_Zealand_Country_Report_2009.pdf