John Anderson: Ministry of Justice should be driven by facts, not rhetoric

Courts, both criminal and civil, work by the parties trying to prove facts. Not opinions. Not theories. Not policies. Facts.

In all the rhetoric that the Ministry of Justice and its Minister Simon Power are putting out, one thing that is absent is the putting forward of accurate facts.

It might be useful to publish a few:

Claim: The minister has stated that 1100 jury trials might be "saved" annually if accused persons were to be denied the right to a jury trial for offences where the maximum sentence was three years' imprisonment or less.

Fact: The number of jury trials annually where the maximum sentence was three years' imprisonment or less was 136 last year, not 1100.

Claim: The ministry and the Legal Services Agency have stated that the Public Defence Service is significantly cheaper than the independent bar.

Fact: The Government does not publish the accounts of the Public Defence Service.

Fact: A forensic accountant, previously with the Serious Fraud Office, has analysed the limited figures that the Legal Services Agency does publish about the Public Defence Service.

He has calculated that for the following years the relative costs per grant of the Public Defence Service and the independent bar were as follows:

2006 - The independent bar was 7.7 per cent cheaper per grant;

2007 - The independent bar was 18 per cent cheaper per grant;

2008 - The Public Defence Service was 6.3 per cent cheaper per grant.

In the other two years of the Public Defence Service's operation, the average cost benefit favoured the independent bar substantially. These figures suggest the ministry's claims for the cost efficiency of its project are wishful thinking and lack courage in admitting to the real costs of the Public Defence Service which it so eagerly started.

Claim: Defence lawyers are overpaid and rorting the system.

Fact: The highest rate payable to an independent lawyer under criminal legal aid dealing with a charge that carries life imprisonment is $159 per hour exclusive of GST.

Fact: The same relative rate paid to a Crown prosecutor is $198 per hour.

Fact: Defence preparation hours, paid by legal aid, are less than those of the prosecution.

Fact: The largest private law firm that undertakes prosecutions for the police was paid $15,031,214 inclusive of GST for the last fiscal year for their work.

Fact: The average payment per trial for Crown solicitors was $18,399 exclusive of GST for the last fiscal year, a figure the defence bar can only dream about.

Fact: Legal aid case cost average (for 2004) for the defence of charges subject to life imprisonment or preventive detention was $10,775. The defence fee is from the start of the case to the finish. The Crown fee is only from after the depositions hearing and does not include all the work done by the police.

Fact: The average cost for 2008 of legal aid cases in non-jury trials is $639. The average of all legal aid criminal cases (ie including jury trials) is $938.

Fact: The number of hours payable by legal aid is strictly limited and any increase must be approved in advance.

Claim: Legal aid payments are out of control.

Fact: The number of charges laid by the police has increased. Legal aid will therefore increase. For example, the number of charges of male assaults female has increased 38 per cent in five years.

Fact: The number of legal aid grants over the same period increased by 41 per cent.

Fact: In the five years between 2002 and 2007, summary charges increased 29 per cent and indictable matters increased 25 per cent.

Fact: The production and use of methamphetamine is increasing, and is the cause of many lengthy and expensive trials.

Fact: A relatively small proportion of criminal trials account for a disproportionate amount of costs: the most notorious example of these being the retrial of David Bain.

Fact: The administration costs spent by the Legal Services Agency has increased by 90.2 per cent over the past five five years.

Rather than lawyers rorting the system, it would seem that the bureaucrats have not only ensured the feathering of their own nests, but managed to convince the minister in a classic Yes, Minister operation that the faults lie elsewhere. It would be interesting to know, to say the least, how much of these inflated costs are hiding the administration of the Public Defence Service.

If put before a judge or jury, the ministry's allegations would be met with resounding "not guilty" verdicts.

The spread of this false information must give cause for concern about the hidden agendas of the ministry, and the eagerness of a National Government to nationalise a service industry when the alternative, the Public Defence Service, is more expensive to run.

* John Anderson is a barrister, specialising in criminal defence work in Auckland.