Anthony Rogers: Defence lawyers unfairly accused

Photo / Richard Robinson

Opinion

The Minister of Justice, Simon Power, is properly concerned about delays in the criminal justice system. Partly to address this, and issues of cost and efficiency, the Government has commissioned a review of legal aid by Dame Margaret Bazley.

She has released a discussion paper identifying certain alleged failings on the part of lawyers assigned on legal aid to act for defendants facing criminal charges.

Regrettably, what the paper does not sufficiently acknowledge is the utter dedication and professionalism shown by most criminal lawyers in acting for their clients. Every day they negotiate reduced charges for their clients and seek sentence indications from judges, leading to pleas of guilty, instead of cases being taken to trial. Taking these steps is not in lawyers' financial interests but in accordance with their duty to act in their clients' best interests.

Suggestions have been aired publicly that criminal lawyers are rorting the system, or as one journalist put it "clipping the ticket". There are a number of factors which this allegation does not take into account.

The first is that lawyers are subject to detailed accounting in their invoices to the Legal Services Agency (LSA), which must list every item of preparation such as faxes, emails, legal research, conferences with clients and with witnesses and the precise time involved. Included in invoices are the fees of any expert witnesses, private investigators, psychologists, psychiatrists and interpreters instructed by the defence. In addition, files are subject to random auditing.

The second is that although hourly rates range from $103 to $179, including GST, most lawyers appearing in the list courts earn between $103 and $119. Nor is that sum paid for every hour spent on a case.

Although the discussion paper asks whether the capping of legal aid should be considered, it does not adequately take into account the capping that already occurs. Lawyers must submit estimates of the time to be spent in preparation.

Caps are imposed by the LSA and counsel frequently exceed the caps imposed, dropping the overall hourly rate.

Despite the discussion paper's reference to "car boot" lawyers, most criminal lawyers (being barristers) do have chambers for which rent must be paid.

Far from clipping the ticket to gain payment for unnecessary court appearances, most lawyers assiduously avoid additional appearances. They are simply too busy to play such games. In a case for which a flat fee is prescribed ($248 or $330 for a guilty plea), a lawyer is unlikely to seek an unnecessary adjournment.

The scope of the review is too narrow. It should encompass Crown solicitors, who conduct most of the more serious crime cases. Their fees have always exceeded those of defence counsel and are regularly updated in contrast to criminal legal rates.

As for the cause of delays, the review should include police practices, which contribute to delay in at least four ways:

1.Overcharging arrested or summonsed persons in terms of both the seriousness and number of charges, designed to persuade those charged with offences to plead guilty.

2.Incompetent handling of requests for disclosure of the police file, which can often lead to adjournments. The Criminal Disclosure Act, which came into effect in June, will not resolve the problem because partly it substitutes one regulatory system for another. The problem is the mindset of most police officers, who hate paperwork and the obligations of disclosure of documents and information in the custody of the police.

3.The frequency with which police files are missing when needed in court.

4.The inability of police prosecuting sergeants to deal with complex legal issues in non-jury court proceedings.

Police Prosecutions Sections, at least in Auckland, have engaged some qualified lawyers to act as prosecutors but the majority of non-jury prosecutions are still conducted by police sergeants - an outdated 19th-century system.

A similar system in England and Wales was abolished in the 1980s and replaced by the Crown Prosecution Service. The time has come for a similar service in New Zealand. It would not replace the system of Crown solicitors' warrants, which would continue to be necessary, principally for jury trials.

The Criminal Bar Association will make submissions on the discussion paper. The review provides criminal lawyers with the opportunity to consider whether there are ways their practices can be improved.

Some citizens find it difficult to understand why lawyers should be paid at all to represent those charged with criminal offences. To face a criminal prosecution is one of the most stressful and unpleasant experiences a person can have to endure. Even if ultimately acquitted, he or she may have had his or her reputation, family life and career destroyed. The value of fearless and competent defence counsel cannot be overemphasised.

* Anthony Rogers is president of the Criminal Bar Association.