But that 12 per cent increase only affects 8 per cent of legal aid work.
Thanks to information gathered via an Official Information Act request, it appears the 12 per cent increase is a drop in the bucket in terms of the bulk of legal aid work.
For example, a total of 264,137 criminal grants were invoiced over the last five years, where of those grants 235,718 were fixed fees and just 28,419 were for hourly rates.
Essentially it means the bulk of legal aid work is dealt with on a fixed fee basis and just 8 per cent of the work is on an hourly rate.
Breaking this down further, the total number of criminal grants invoiced in the 2017/2018 period was 48,503.
Of those, 3770 were for hourly rates and 44,733 were for fixed fees.
In the 2020/2021 period, 49,481 criminal grants were invoiced. A total of 9,637 grants involved hourly rates and 39,844 were for fixed fees.
Ministry of Justice national service delivery group manager Tracey Baguley confirmed the majority of legal aid cases are funded by fixed fees.
What was news to me was that the fixed fees for hearing and waiting time had increased by 12 per cent as of 3 October 2022 to align with the hourly rate change, she said.
Lawyers would also receive back pay for claims made between 1 July 2022 and 2 October 2022.
An issue here is that hearing and waiting times, which are included in the fixed fee totals, again, are a fraction of the fixed fee work.
For context, court time doesn’t account for the preparation to get there, whether that’s taking instructions from the client, preparing documents and submissions, meeting with the client, or visiting prison.
It’s akin to the five minutes of delivering a speech at Toastmasters - the five minutes in the spotlight is noteworthy, but doesn’t account for the hundred or so hours taken for writing the said speech and preparation.
One legal aid lawyer I spoke to said they were initially relieved when the increases were announced, only to be disappointed when the reality of the Government’s move became clear.
“It was a kick in the teeth to discover that only a fraction of our work would see any sort of pay increase. If the Government wants to stem the shortage of legal aid lawyers it will have to do a lot better, particularly in the face of inflation and the rising cost of living. At a minimum it should honour its rhetoric and increase fixed fees.”
Minister Allan declined to answer my claim that the Government’s promises to turn the tide of a substantially underfunded legal aid system did not ring true.
Allan did say, however, that she is continuing to regularly review the legal aid system and considering what work might be appropriate, accordingly.
User charges for civil and family legal aid still in force
In July’s announcement, Allan said the legal aid user charge - payable by most civil and family legal aid recipients - was to be removed, as well as removing interest on repayment of unpaid legal debt, among other things.
No timing was given as to when the removal of the legal aid user charge would be implemented.
According to the Official Information Act document, these changes will come into effect 1 January 2023.
CPIP guilty plea incentives at a standstill
Rewind to June, and Faafoi made grand statements about the wonders of the Criminal Process Improvement Programme (CPIP).
“CPIP was assembled to reduce pressure and outstanding workload in the criminal jurisdiction of the District Court by establishing best practice to help cases reach resolution earlier and with fewer court events.
“Making every court appearance meaningful will reduce the delays that waste court time and resources, and those of all court participants – defendants, complainants, victims, witnesses and their whānau,” Faafoi said.
“The programme aims to address the underlying causes of offending, improve access to justice, and to support victims to feel safe.”
Alas, recently it came to light that a new CPIP policy would mean duty lawyers could be paid more if their clients pleaded guilty at their first court appearance.
On top of the $98 hourly rate for attending court on weekdays, duty lawyers could get a further $70 for assisting a defendant to enter a plea and $120 for assisting a client to enter a plea and be sentenced the same day (or have the charges withdrawn). Guilty pleas lead to sentencing.
The payments were part of the revised duty lawyer operational policy being tested at Hamilton, Hutt Valley, and Christchurch district courts, Allan said.
Allan told me she made it clear she was concerned about the pilot that may have incentivised guilty pleas.
“I immediately asked for information about the pilot and for it to cease. While the idea behind the pilot - to reduce high adjournment rates contributing to delays and therefore affecting victims, offenders, witnesses and families – was well intended, it was an overreach and an under-performance of policy design.”
The policy made up a small component of the wider CPIP scheme, which continues, with the aim of reducing the backlog of delays in court, Allan said.
Legal Services Commissioner Tracey Baguley confirmed a review of the policy is being undertaken.
