KEY POINTS:
The looming crisis in our courts resulting from 12-month case backlogs could be averted with the reintroduction of a magistrate's court administered by justices of the peace and community magistrates.
A reinstated magistrate's court, inferior in jurisdiction to the present district court, could handle all minor criminal charges, preliminary hearings, bail applications and most traffic offence cases.
The idea of a community court for summary offences is not new. It has long been seen as a way of freeing experienced district court judges for more serious cases.
Scotland reached a similar decision in 2004 when full responsibility for summary justice in its lower courts was taken from district judges and given to justices of the peace. And in 2005 Northern Ireland appointed 272 new lay magistrates (similar to our community magistrates) to handle the judicial responsibilities of the country's youth court.
In 2004 the New Zealand Law Commission proposed the establishment of a new community court administered by a new category of professional judge, but the Government rejected the proposition. Critics of the scheme suggested that qualified lawyers with any ability would not see it as a career opportunity.
In 1999 the then Minister of Justice, Douglas Graham, introduced an experimental lay community magistrates scheme in Waikato and Bay of Plenty courts instead of extending and developing the jurisdiction of judicial JPs as Sir David Beattie had recommended in his 1978 Report of the Royal Commission on the Courts.
During the royal commission hearings several district law societies had opposed extending the jurisdiction of justices of the peace on grounds of incompetence - a claim based largely on anecdotal and unsubstantiated complaints from a handful of defence lawyers in provincial towns.
This opposition, ostensibly generated by professional self-interest and the notion that all judges should be law graduates, dissipated when a well-known barrister, Kevin Ryan, told the commission that in 10 years JPs had dealt with 900,000 cases, from which 20 appeals had been made - and only 10 had been successful.
In England and Wales 96 per cent of all criminal and civil cases today are heard before voluntary, unpaid justices of the peace. Prominent British jurists, lawyers and academics have stressed the importance of maintaining a lay magistracy.
One eminent authority, Sir Thomas Skyrme, asserted that the lay justice system was intrinsically good because it involved the layman in the administration of justice and thereby the citizens saw the law as their law, administered by men and women like themselves, and not the special preserve of lawyers.
This was precisely the situation in New Zealand colonial days, when from 1814 until 1868 (with the arrival of the first resident magistrate) the 678 settler and militia JPs constituted our entire justice system.
It was not until the turn of the century that judicial powers of JPs diminished as more stipendiary magistrates were appointed, government support waned, and financial assistance for the lay magistracy faded.
While their jurisdiction has been restricted to summary proceedings on minor criminal charges and traffic violations, judicial JPs continue to play a significant role in the district courts today. They relieve much of the pressure from district court judges by handling the minor routine cases, and at the same time reducing the burden on taxpayers.
The bulk of JPs' sitting time involves lengthy deposition hearings where they sit in pairs, and weekend remand court hearings which they handle in lieu of district court judges, on which they sit alone.
Last year, in the four Auckland District Courts, unpaid JPs sat for 30,000 hours and (based on $100-an-hour fees paid to various tribunal members) in effect saved about $3 million on the Ministry of Justice's budget.
Meanwhile, throughout New Zealand the already serious court backlog is worsening. MP Kate Wilkinson told delegates at the JPs' conference in March that courts were experiencing delays of up to 300 days.
Executive Judge Jan Marie Doogue has since stressed in LawNews that urgent measures must be taken.
Recent press reports confirm that 10 cases have been thrown out by judges because of excessive delays in court hearings. If the current unacceptable court backlogs are to be eliminated, MPs must have the courage to act. Lay magistrates in a new community court would provide an effective and cost efficient solution.
