Laws designed to streamline the court system and fix court backlogs are not working as they should, frustrating police, creating “churn” in the justice system and contributing to jails being clogged with remand prisoners.

The Criminal Procedure Act was introduced progressively between 2011 and 2013. It was a massive piece of legislation, hailed as the biggest change to criminal procedure for 50 years.

Its main aim was to improve efficiency in the court system, including the statutory obligation for defence counsel to get early instructions from their clients and to engage in case management meetings (CMM) with police prosecutors.

Now, nearly five years later, the number of “not guilty” pleas has increased in some districts and some cases are still taking up to a year before they get to court.

The finger of blame is being pointed rather firmly by police at the legal fraternity.

Police staff who work in prosecutions and the criminal justice support units say it’s becoming increasingly obvious that some lawyers are not entering into the spirit of the act, especially their obligations under the CMM process, and are not being held to account by judges.

The first year after the act was fully implemented (2013), it seemed to be functioning as intended, says Nigel Stilwell, the OC of Eastern District’s criminal justice support units. “Police seemed to be getting buy-in from lawyers and, that year, the total number of not guilty pleas dropped as more cases seemed to be getting resolved in the early stages.”

Since then, he says, the number of not guilty pleas has steadily gone up and are now at record levels in his district (800 in the past year, up from 600 in 2016).

“The numbers will vary by district, although anecdotally we know that it is taking a long time for other districts from a first appearance until cases are heard – months and months.

“Alternative resolutions and pre-charge warnings are not stemming the flow of new cases,” he says, and each case is requiring multiple appearances and encountering more delays around issues such as legal aid, nonappearance and courts being too full to hear cases.

All uniform police prosecution files are done through the CJSU, while detectives prepare their own files for the court.

One of the biggest sticking points identified by police in both areas is the CMM process, which is mandatory and supposed to happen up to six weeks after a “not guilty” plea for all Category 2, 3 and 4 cases (offences punishable by a term of imprisonment).

The CMMs were a key part of the new “case review” procedures of the act – the defence and prosecution jointly completing the document, which is issued to a defendant’s lawyer following a not guilty plea, and meeting outside the court to discuss the case.

Compliance with this process seems to vary among districts, with some reportedly as high as 80 per cent and some as low as 40 per cent.

The CMM is supposed to be completed two weeks before the next step in the process, the Case Review Hearing (CRH).

Police Association president Chris Cahill says the lack of adherence to this aspect of the act is worrying. “It affects our members in terms of court time and file preparation time, and even when cases do get to court, they are not being dealt with in a timely manner,” he says.

“Any delays affect cops and any other witnesses who are called, then not required, then called again. It is also hard on victims and offenders. The system is clogged with people on remand. The only people who seem to benefit are the lawyers.”

Wellington senior prosecutor Constable Gary Hilsdon says the act appears to have added little value to the process, “simply formalised it through the documentation”.

“It’s a shame, because defendants deserve to have their cases dealt with in a timely manner. Unfortunately, there are no sanctions placed on lawyers for not completing their documents in time for the Case Review Hearings.”

Even when the CMMs go ahead, lawyers will, naturally enough, not disclose everything to the prosecution. “They often like to keep their powder dry,” Gary says. “If they don’t tell us their likely defence, we have to prove every part of the case, even if it’s not likely to be challenged.”

Nigel Stilwell agrees. “The spirit of the act requires that the prosecution and the defence come together to discuss the case, to iron out peripheral details and speed up the process.”

For example, he says, there may be several police officers involved in a case – the one who made the arrest and others who played minor and uncontentious roles, such as taking fingerprints or photographic evidence.

“At the CMM they can discuss who needs to go to court and who doesn’t. If there is agreement at that stage – if the date, place and time of an incident is accepted, and doesn’t have to be proved in courts – it reduces the time of a hearing. But it all requires a dialogue with police and some lawyers simply refuse to do that.”

Nigel says it’s definitely against the spirit of the act when, as he has seen, the defence requires the appearance of all those people and then doesn’t ask them any questions, “which means they accept their evidence, which could have been achieved at the pre-trial meetings”.

Nigel thinks that in such cases, Police should consider seeking costs for getting its witnesses to and from the court, although it would mean more work for an already full prosecution service.

He fears that attempts to be collaborative have, in fact, become combative with some lawyers. “Some counsel simply don’t like the police, or are actively anti-police, and there are no sanctions on lawyers who do not comply with the act.”

According to the Law Society, the court can make orders to award costs if there are significant departures from the CMM process. It appears that such awards have rarely been made or upheld.

Most recently, in March, orders issued by an Auckland District Court judge requiring two lawyers to pay costs of $150 each for failing to file a CMM were overturned on appeal to the High Court.

The High Court judgment pointed out that the power to award costs, enshrined in the reformed CPA, was intended to increase the efficiency and effectiveness of the criminal justice process.

However, it said, a judge had to be satisfied that the failure to comply with a CMM was “significant” and that there was “no reasonable excuse for the failure”. The High Court decided that in both these cases the failures did not warrant a sanction.

Meanwhile, the ongoing delays in the court system indicate that gains envisaged under the revised CPA have yet to be realised.

– ELLEN BROOK