Unlawful Legal Aid Policy - Another Simon Power Train-Wreck

The Court of Appeal yesterday found that the Government's fixed fee legal aid regime was illegal (Criminal Bar Association v Attorney General [2013] NZCA 176 (24 May 2013)). This is yet another Government stuff up. This time in rolling out an unlawful legal aid policy. This fiasco too can be sheeted home to Simon Power. Power got rid of provocation because of one case where the jury properly rejected it; got rid of depositions to speed up trials, but in so doing made the delays longer than ever. Power was also the SOE Minister responsible for Solid Energy as it embarked on a thoroughly reckless and stupid expansion plan. It was  Power who wrote to Solid Energy telling them to borrow big and hand more cash back to the state(1), which has been proven to be disastrous advice.  With this impressive track record he has now moved to bestow the benefits of his "experience" on Westpac Bank. What experience does Power have in banking? It was only a few years ago he was an average staff solicitor in Palmerston North who hardly ever darkened a courtroom. I would have thought with the train-wrecks Power leaves behind after he moves on, that he was more suited to a career in demolition?

When the Legal Services Bill was being debated in the House, opposition MPs raised concerns about the lack of independence in making grants, and how the new scheme would adopt a "one size fits all" approach to legal aid grants regardless of complexity or the vulnerability of the client. The Government assured the House, that this would not be so as the Commissioner could exercise discretion. This was disingenuous. As the Court observed first quoting from the then Minister (Simon Power):

[98] Concerns about the independence of the legal aid system again featured in the committee stage of the consideration of the Legal Services Bill, and in its second and third readings. In moving the third reading the Minister of Justice said:

… Submitters were concerned that the transfer of the legal aid system to the Ministry of Justice may reduce the level of independence in the legal aid system. We thought about this carefully in the policy design, and I am pleased that the committee agreed that the position of the Legal Services Commissioner will guarantee that independence. … 

Power was specifically warned in the House about the lack of independence and the fettering of the decision makers discretion. As the Court noted:

[99] Outlining his party’s continued opposition to the bill on its third reading, Mr Locke MP referred to the importance of preserving:

… the necessary independence that a legal services body requires. Putting in a supposedly independent statutory officer, the Legal Services Commissioner, will not necessarily solve that problem. 

He added: 

The report back from the select committee says: “It is important that while the Commissioner would be accountable to the Secretary for Justice, the Secretary should not be able to interfere in the Commissioner’s performance of his or her independent functions as set out in the bill.” That is all very well, but, as we have found in other areas, when an officer is reporting to someone above them in the hierarchy their responses are a bit conditioned by the responses of the higher-up officer. That issue was raised as part of the debate on the bill that merged Archives New Zealand and the National Library and put them under the Department of Internal Affairs. Even though there is an independent Chief Archivist, the Chief Archivist has to report to the head of the Department of Internal Affairs. A similar situation will constrain the real independence of the Legal Services Commissioner, particularly when monetary matters are involved, as they are with legal services and as they are in the case of the Chief Archivist and the Department of Internal Affairs. Budgets can be restricted and so on, so we do not think there is sufficient independence in the system. 

So how did the independence so carefully thought about by this Minister actually work in reality?

[121] The problem with the current Policy is the combination of a fixed fee for almost every grant of legal aid combined with the lack of any effective room for the Commissioner (or his delegate) to amend the grant, even where the Commissioner considers an amendment is appropriate. We are referring to what Mr Harrison termed in his submissions the “unusually complex and completely inadequate test for an amendment to the grant”. In the absence of at least two of the factors mentioned in the Policy, or a particularly vulnerable complainant, and proof that the fixed fee will be “completely inadequate in reflecting the cost of completing the activity”, the Commissioner has no discretion to move the case out of the fixed fee category. We consider that test sets a threshold so high that it constitutes an unacceptable limit on the exercise by the Commissioner of his discretion. 

[125] In [111] we noted Simon France J’s view that it was “far too early” to use the statistics we have summarised in [110]. While there is some force in the Judge’s view, the fact that only 0.4 per cent of 10,000 cases had been transferred to the complex case category, against the anticipated 4.5 per cent, does suggest that the threshold for transfer is extremely difficult to meet. 

[126] It follows that we accept the appellant’s argument that the Policy is also unlawful in that it unreasonably fetters the Commissioner’s discretions under ss 16, 23 and 28 of the 2011 Act. Accordingly we answer Question 3: ‘Yes, the Fixed Fee Policy unreasonably fetters the Commissioner’s discretion under the 2011 Act’. 

In the time since the fixed fee policy was introduced a number of practitioners will no longer take on legal aid cases - it is just uneconomic, still others have moved on to new careers.  The feeling of many is that the fee regime is designed to slowly drive practitioners from the system. 

Now having been told that the fixed fee regime is illegal what will the Ministry do? Don't expect sweetness and light or even an apology. The Ministry and the Minister will treat this, if past experience is a guide, as merely an obstacle to be got around. The tragedy is that when looking at the system objectively, there is blatantly no independence in decision making. Any competent lawyer  would have seen that from day one.

1 - http://www.scoop.co.nz/stories/PA1303/S00254/questions-and-answers-march-14.htm; and
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10871040

Decision Maker for QCs Recommends Himself

The Attorney General Chris Finlayson passes applications for QC on to the Governor General for appointment to silk, following a process of consultation. As he himself was recently appointed a QC this must mean he recommended himself? As the Guidelines say, "Pursuant to regulation 4 of the Queen’s Counsel Regulations 2012 appointments are made on the recommendation of the Attorney-General and with the concurrence of the Chief Justice of New Zealand." 

There is a precedent for similar behaviour. From memory I am pretty certain that then Prime Minister Rob Muldoon effectively awarded himself a knighthood. 

For completeness, the relevant section of the Guidelines states: 


"QUEEN’S COUNSEL – GUIDELINES 
FOR CANDIDATES 
2013 
Introduction 
The rank of Queen’s Counsel is awarded to barristers sole who have demonstrated excellence 
in their careers as litigators. The standard is high and will not be reached merely by 
completing a certain number of years in practice. Candidates are encouraged to consider 
carefully and to consult with senior colleagues before submitting an application. 
These Guidelines are issued by the Attorney-General and Chief Justice pursuant to 
regulation 5 of the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 
2012. 
These Guidelines outline the criteria for appointment and provide information on the 
qualifications and experience that should be possessed by lawyers seeking appointment as 
Queen’s Counsel and the process by which candidates will be recommended for appointment. 
Appointments 
Appointments to Queen’s Counsel are made by the Governor-General, by Letters Patent, 
under the Royal prerogative. Pursuant to regulation 4 of the Queen’s Counsel Regulations 
2012 appointments are made on the recommendation of the Attorney-General and with the 
concurrence of the Chief Justice of New Zealand. 
To be considered for appointment candidates must be barristers sole specialising in litigation. 
Queen’s Counsel are required to continue to practise independently, as barristers sole."

REFLECTIONS ON CRIME AND PUNISHMENT: A Snap Shot of The Life and Career of Judge Barry Lovegrove

Often criminal law can exact a toll not only on defendants and complainants, but also practitioners.  People begin their careers with an enthusiasm to “do what is right” and to help “make a difference.” Then as the years go by, constant exposure to human misery often sees pessimism and cynicism begin to predominate. One person to whom this did not apply was Judge Barry Lovegrove.

Late last year Judge Barry Lovegrove hung up his robe. After a 50 year career encompassing experiences as diverse as practicing law in the Far North, teaching law at universities in Malawi and Hong Kong, engaging in Masters level research in East and Central Africa, prosecuting for the Malawi government, working in the International Labour Office Official in Geneva and, for 18 years, working as a District Court judge in New Zealand and, since 2002, solely as a panel convenor of the New Zealand Parole Board, retirement is well earned.

This background makes Barry well placed to offer views on the role of punishment and parole in the criminal justice system. He shared some of these insights in a talk he gave in the Law Society rooms in Panama Street, Wellington in December last year, entitled, “Crime and Punishment.”

Barry comes from convict stock, being a descendant of Benjamin Shadbolt of Datchworth, who - after narrowly avoiding the hangman's - was transported in 1845 to Van Diemen's land for 15 years for the theft of a bolt of calico and 11lbs of pork. Ben secured his ticket of leave after 15 years and came to New Zealand where he made good.

The fruit did not fall far from the tree for when Barry was just 5 years of age he was made to sit in the naughty chair in front of class at Three Kings Primary School in Auckland with his wrists bound together, by a Ms Needham – his crime, throwing an apple core in the playground.

Barry recounted feelings of helplessness and nausea from a few years later, in standard 2 at Westmere Primary while enduring the morning ritual strapping of a young Barry Whitmore for yet another failure to do his homework. Mr Jennings his habitual tormentor seemed incapable of any other course of action.

This blunt approach to punishment contrasted with an experience from Auckland Grammar when a prefect caught him flicking paper projectiles with a rubber band in the playground and sent him for the compulsory caning. Displaying early advocacy skills, Barry managed to talk the prefect out of the punishment and was let off with a warning. Barry advised that having been shown mercy he never flicked another paper projectile. The prefect was David Baragwanath. Barry observed of the young David, “how wise he was and how good sense, well argued, is calculated to produce a good result.” 

While at Auckland Grammar, Barry recalled speaking to Mount Eden Prison inmates through the barbed wire fence above the prison’s 'hard labour' quarry.  From the vantage point of the school grounds he once looked down sombrely through the fence at the temporary corrugated iron structure projecting through the roof of the prison to accommodate the extra height of the gallows where William Fiore had just been hanged.

Then aged 19 on his OE Barry recounted seeing three men hanging from a lamppost outside the exit to Addis Ababa airport on arrival in Ethiopia in 1959. A British matron had been raped and murdered at a foreign-aided hospital and someone had to hang in the traditional way at the scene of the crime. Barry spoke with beggars clustered outside the Central Post Office in Addis Ababa whose left hands had been hacked off for theft or both hands hacked off if repeat offenders.

Barry spoke of watching while wanting to turn away from the macabre spectacle of the public hanging before an audience of thousands in the Central Piazza of rebel leader Menghistu Gedamu and of how his legs kicked until finally stilled. His crime: seeking political change.

Arriving back in New Zealand, Barry started professional life as a law clerk in 1963 with Johnston, Prichard and Fee and then with Buddle Weir. In 1967, still with Buddle Weir, he graduated in Arts and Law, qualified as a barrister and solicitor. He then returned to Africa to teach law at Malawi University while completing, externally, a higher degree from the University of Reading in the United Kingdom. 

In Malawi, Barry taught law to young Africans and prosecuted part-time for Dr Hastings Banda's government. Barry recalls that Dr Banda had a fairly uncompromising view of the notion of opposition, “he liked to say, 'I have very few political opponents - and very many well-fed crocodiles'.”

A career in African academe came to an end in 1970, after being asked by the president to become Principal State Counsel. The first job being a 'double-jeopardy' prosecution of 5 young Malawians on 'show-case' charges of treason. The 5 men, like Menghistu Gedamu in 1959, sought political change from the oppression of a dictatorial political system.  The year before, the neighbouring Rhodesians hanged 4 young men at Bulawayo Prison for much the same sort of thing and Barry had no stomach for that kind of action. Like Godfather Don Corleone, an offer from Dr Banda, couldn't be refused. So Barry hightailed it under cover of darkness to South Africa en route to Geneva and the International Labour Organisation. While working there Barry gained an understanding of how politics and law - as the handmaiden of politicians sectional interests got in the way of progress and good ideas.

Barry then completed his Masters at Reading University while pulling pints part time at the Jack-of-Both Sides Tavern.  Having completed his  Masters Barry then spent ten years as a Lecturer in Law at the University of Hong Kong.

While lecturing he also helped open the first pub on Hong Kong Island - The Old China Hand – where he later met the retired executioner from Bulawayo Prison who had hanged the 5 young Malawians he declined to prosecute a decade before. This man had sent over 360 human beings plunging to their deaths over the course of his grisly career.

Returning to New Zealand in 1983 Barry sought the good life on a smallholding in the Hokianga, with his wife and young daughter. However, the reality of gorse, fencing and muddy fields saw Barry moving from stomping the sod, to practising at the bar based in Kaikohe and in David Lange's old office in Rawene. Barry quickly immersed himself in the affairs of his community being elected chairman of the Horeke Primary School Board of Trustees and legal adviser to two schools. He also played a role in the establishment of Ngawha Prison and establishing a jury system in the new Kaikohe District Court. Barry’s interest in having a prison at Ngawha was driven by having Ngapuhi prisoners closer to home where they could maintain their links with whanau. He recounted satisfaction in having all Youth Justice Family Group Conferences in the Far North held on marae.

Barry was appointed a District Court Judge in 1995. From 1999, Barry began his “love affair with parole” firstly as chairman of the Manawatu District Prison Board and, after 2002, as a panel convenor of the New Zealand Parole Board. Drawing both from his time on the bench and from a lifetime of observing traditional notions of punishment, he saw parole offering an alternative to tired old notions of punishment which were counter-productive and costly.

Barry views parole as “a thoroughly enlightened form of social engineering through rehabilitation and the promise of a better tomorrow.” Fuelled by his passion he relinquished his role as a bench judge in 2004 and carried on until 31 October 2012 exclusively as a Parole Board panel convenor. Over that time he estimates that he has spent more time in prison than many who have appeared before him and he has written more reviews of Parole Board decisions under section 67 of the Parole Act than any other panel convenor and has become even more convinced that rehabilitation trumps punishment every time.