Justice system overhaul closer

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Eroding the legal principle of the right to silence, narrowing the scope of offences that can go before a jury, and ending celebrity name suppression are all now one step closer to becoming law.

The recommendations are included in a report - just released - from the Justice and Electoral select committee on the controversial Criminal Procedure (Reform and Modernisation) Bill.

The bill, which is the biggest shake-up of the criminal justice system in recent history, will still need majority support to pass its second and third reading to become law.

As reported in the Herald on Monday, the committee has retained the main provisions in the bill that faced the loudest opposition from the judiciary and legal circles, including:

* making name suppression harder to get, including for celebrities who would no longer qualify simply because they were famous

* pushing the threshold for electing a trial by jury from offences punishable by up to three months' jail to those punishable by up to three years' jail

* a pre-trial regime requiring the defence to disclose issue in dispute, with the judge or jury able to make an adverse inference if this is not done adequately.

The pre-trial regime has been heavily criticised as eroding the accused's right to silence and right against self-incrimination, while shifting the system away from the principle that the onus of proof fell on the prosecution.

The ability to make an adverse inference was strongly opposed by all levels of the judiciary - including the Chief Justice Sian Elias and Chief District Court Judge Russell Johnson.

The committee has clarified the regime so that disclosing issues in dispute would not require the defence to "disclose its factual case", or name witnesses or evidence it intends to use.

Other changes include:

* internet providers would not be liable unless they knowingly or recklessly breached name suppression

* There are wider grounds for a retrial if a trial had proceeded in the absence of the accused; in the original bill, if the accused was, for example, hit by a bus on the way to a trial, the court had to proceed with no possibility for a retrial for certain offences.

"We are aware of concern about the possible impact of a greater ability to proceed in a defendant's absence on people who had not consciously or deliberately avoided appearing in court. We consider that the best safeguard against this is to broaden the grounds for a retrial," the committee report said.

The Government expects the reforms proposed in the bill to result in 43,000 fewer court events, between 1,000 and 1,400 fewer cases being designated for jury trial, and between 300 and 600 cases going before a jury each year.

Labour MPs on the committee opposed the bill. In their minority report, they said:

* the change to the jury threshold was not based on any detailed analysis of the consequences, and making it less available it should be done with caution as juries bring "common sense" into the system

* the pre-trial regime may lead to greater efficiencies but "some in the legal profession have suggested that the requirement would, in effect, make the defence help the prosecution build its case".

*there was little evidence to justify making it easier for trials to proceed in the absence of the accused

* the failure of the defence to fulfil certain obligations to could lead to a fine and be aggravating or mitigating factors at sentencing, which Labour describes as impracticable and potential damaging to the lawyer-client relationship.

The minority report said there were a number of worthy reforms in the bill, but "it leaves the overall system in need of further significant reform, and erodes important liberties in the process without advancing a sufficient case for doing so".