Ending legal aid for cultural reports at sentencing may only make court hearings longer and costlier
This may be popular, even populist, but it carries the risk of not achieving any of those purported goals.
- This may be popular, even populist, but it carries the risk of not achieving any of those purported goals.
- In fact, court hearings may become longer and more expensive.
- It is governed by the Sentencing Act 2002, which requires judges to take into account many factors when considering a sentence.
What judges must take into account
- Judges also need to be aware of the likely effect of a sentence.
- In short, judges need a lot of information to help reach a proper sentence.
- Similarly, reports about alcohol or drug use that cause a disproportionate amount of offending can be introduced from relevant specialists.
Reasons for offending
- But probation officers have limits: they may not have much time and may not have the necessary expertise.
- When parliament passed the Criminal Justice Act 1985, section 16 allowed a request for the court to hear from someone about a person’s “ethnic or cultural background”, how that might be relevant to the reason for offending, and how it might help avoid further offending.
- More particularly, they can address how that might have been part of the offending, how it might be relevant to any sentence, and how support might help prevent further offending.
The right to a fair trial
- But this is partly because it has been clarified that legal aid was the correct funding mechanism for cultural reports.
- Read more:
New Zealand's legal aid crisis is eroding the right to justice – that's unacceptable in a fair societyThe Ministry of Justice used to pay for them because they were considered a court report.
- The fundamental right to a fair trial includes a fair sentencing hearing, with the judge having all information that is useful.
Shifting costs elsewhere
- On one level, therefore, there will be an additional barrier to equal justice for those who are poorer.
- So, we can expect lawyers to ask other experts, including drug counsellors or psychiatrists, to collate and include relevant information.
- This will potentially cost a lot more than any savings to legal aid from not funding section 27 reports.
Kris Gledhill is currently working on a project relating to the Sentencing Act 2002 the expenses for which are funded by the Borrin Foundation. He is also a co-opted member of the Criminal Bar Association's Executive Committee. The views expressed in this article are his own.