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There are two kinds of criminal cases - serious ones which lead to trial by jury - and less serious ones which are heard in front of a judge. The vast majority fall into the latter category and are prosecuted by the Police in the District Courts. With serious crimes like murder and rape, police conduct the initial investigation, but the process of prosecution is farmed out to high-flying solicitors in private law firms. These are the prosecuting elite - known as Crown Solicitors - and they charge like wounded bulls.
Like everything else, their fees have been going up – by 60% in the last five years. So in 2011, the Government announced a review of funding provided to the Crown Law Office which is responsible for paying these cowboys. The review was conducted by John Spencer, chair of KiwiRail and deputy chair of the Legal Services Agency. Under the headline Fears for justice after cost cutting, the Dominion Post reports that as a result of Mr Spencer’s review, funding for Crown Law will be cut by 25%. That sounds reasonable to me.
But not to Crown Solicitor Simon Moore, QC, who described the cutbacks as potentially "catastrophic". One suspects he may have been referring to a likely cut in his personal income rather than any possible decline in the efficiency of the prosecutorial service – although other Crown prosecutors joined in the wailing and claimed that cut backs will lead to backroom deals and shorter sentences. Garth McVicar of the so-called Sensible Sentencing Trust sang the same old song and said the cutbacks would undermine “the integrity of the entire justice system”.
The Dominion Post story ignored some key facts.
One: Prosecutions are conducted by both the police and the Crown Law Office at a total cost of about $75 million a year. The police prosecute around 200,000 offenders a year at a cost of about $35 million. There is no cut in funding for this. Crown Law prosecutes only 8,600 cases a year for about the same cost. In other words, police prosecutions provide much better value than Crown Law for the same amount of money. Admittedly, Crown Law deals with the more serious cases, but they represent only 4% of all prosecutions - so their impact on the overall implementation of ‘justice’ is negligible.
Two: However, their impact on the cost is significant. Crown Law has a tendency to waste millions on high profile cases which push up the overall cost. For instance they wasted over $1 million prosecuting David Bain – who turned out to be innocent. Crown Law money was effectively thrown down the toilet because of ‘egregious errors’ made by police. Another $3 million was wasted prosecuting 17 defendants following the Urewera raids –-with only four convicted on fire arms charges mainly because of ‘illegal surveillance’ by police. The case against Kim Dotcom is turning into a similar financial fiasco.
Part of the problem is that Crown Law does not carry out adequate oversight of these prosecutions. In his report, John Spencer commented that “the Solicitor General has a relatively ‘hands off’ role in performance management” and that he “has no clear mandate to control the indictable prosecution policy”.
Three: Making matters worse, Crown Law uses an unaudited invoicing system which is open to widespread abuse. According to John Spencer, the Crown Law Office does not require the Crown Solicitors to declare how many hours they actually charge for. His report said: “Crown Law was unable to provide any kind of summary of the actual hours spent on matters and/or the time claimed and paid for. Nor did it have records relating to the split of hours worked by the different levels of counsel within the Crown Solicitor network”.
The last sentence refers to the fact that senior solicitors charge Crown Law at substantially higher rates than junior lawyers who may do much of the donkey work. But Crown Law has no auditing mechanism in place to verify which lawyer did what.
Spencer also found regional variations whereby a Crown Solicitor in one region will charge twice as much as a Solicitor in a different region for a similar kind of case. But Crown Law pays these invoices with no questions asked. Mr Spencer described this cosy arrangement between the Crown Law Office and the Crown Solicitors as an ‘honesty process' and said it was ‘far from transparent’.
Mr Spencer’s report is also far from transparent. When Margaret Bazley reviewed the legal aid system, and heard that defence lawyers were asking clients for ‘top ups’, she said they were ‘rorting the system’. Crown Prosecutors are doing the same thing every time they submit an invoice to the Crown Law Office without declaring how many hours they worked. Unfortunately, Mr Spencer didn’t have the courage to name this for what it is – a gigantic rort.
It’s a real shame Dame Bazley wasn’t asked to conduct the review. With an astute turn of phrase, she can turn a spade into a shovel. If she had been asked to review what the Crown Solicitors are doing, she may well have called them what they are – out of control, corporate gold diggers.