Is It Upside Down, Down Under?

The New Zealand criminal justice system shares some striking similarities with the UK. Despite being cut from the same cloth, however, much of what occurs in the Kiwi courts would be unrecognisable to UK practitioners.

Once you have adjusted to the fact that vowels in New Zealand English are pronounced like they have been dropped on the floor in a game of Scrabble; a ‘pin’ being something you write with and ‘fush and chups’ being a Friday favourite (don’t mock the ‘eccent’), there are some comforting reminders of home. Marmite being guarded like a national treasure and cars being driven on the same side of the road are clear examples of why so many make the transition with ease (although when it comes to Marmite, all Kiwis are quick to point out how theirs is different and better – which it is).

Professionally, the Antipodean pace of life and case load are measurably less hectic than in the UK, meaning that the work-life balance is more forgiving. With so many outdoor activities and such incredible scenery on the doorstep, it isn’t difficult to see how that evolved.

Although New Zealand is larger than the UK, the less ‘hustle and bustle’ approach means that practitioners generally do not have to travel far from their local court centre. However, when one does have to travel, often the courts are further afield owing to the distribution of major towns. Of course, making those long trips is mitigated by the fact the commute is generally a drive through the winding mountain pass along the Rimutakas instead of the bleary-eyed journey on the 7am from Liverpool Street.

Criminal prosecutions are overseen by the Crown Solicitor, who is a partner in a firm that undertakes all of the region’s criminal work on behalf of the Crown, as opposed to a government body fulfilling that role. As such, many of the brightest law graduates aspire to go in-house for the Crown, which results in the quality of the prosecutors generally being of a much higher standard than the defence advocates, who for the most part work for the Criminal Defence Service. This should perhaps serve as a warning to us in light of current proposals.

Such is the quality of the prosecution setup that the judiciary take the approach that the Crown brings the case and has the resources to meet the court’s high expectations and comply with its directions; a far cry from the weary acceptance our Crown Court judges are sometimes forced into if the prosecution has failed to adhere to their directions.

In New Zealand, ‘case management’ lives up to its name. It ensures that the anticipated preliminary applications are properly filed without seeking to sanitise a trial by asking either party to disclose its tactics in full to the other side. The concept of a Defence Statement or Case Management form identifying the issues in the case could not be further from the contemplation of our Kiwi counterparts.

Whilst the Crown is scrutinised over its compliance with directions and is expected to assist the court by filing memorandums and written submissions, the defence Bar is granted a far greater degree of latitude. If, from a practical point of view, that did not give enough assistance to the defence, there is also a different mindset in terms of how a case may be proven. The first and most glaring difference is that there are no inferences from silence either in interview or at trial, which inevitably means the presence of a defendant in the witness box is far less common. The unfettered right to silence is fiercely protected in court by lawyers and judges alike, and just as vehemently defended by them when discussed socially in the Wellington equivalent of Daly’s.

Trial judges are also prepared to take a robust (and more defence minded) view of the evidence sought to be adduced. They will readily rule out prejudicial evidence on non-central issues, rarely admit evidence of bad character and will refuse a late amendment to the indictment where it should have been contemplated earlier. The defence Bar and their clients have no idea just how good they’ve got it.

New Zealand was previously described to me as like the UK, but in the fifties.” In fact, the Kiwis are far more willing to grasp the nettle than we are when it comes to using technology in court. For example, when Special Measures are granted, the glass screens can be set so the glass is opaque or one-way and pre-recorded cross-examination has been used for some time, whilst it is only now being piloted in three Crown Courts in the UK.

During a trial, a ‘real time’ transcript is typed up off-site, which is printed off for the advocates and judge at quarterly intervals throughout the day. This of course means that concentration is not wasted on maintaining a verbatim note but also, and perhaps more importantly, reading back the accurate note provides good opportunity to poke fun at other members of the Bar whenever there is an unfortunate slip of the tongue.

If the differences at first instance are not enough, there is an automatic right of appeal to the Court of Appeal (even the thought of a loss of time order caused great consternation when I asked if such a thing existed). Despite this burden on the Court of Appeal, the appellate judges are much more likely to conduct an in-depth inquiry of their own volition. For example, if certain matters require clarification, the Court will often adjourn the case part-heard to allow for these matters to be attended to.

So, what reasons are there to stop us all from jumping on the next plane to the Pacific?

Well, when juries retire, they can be out until late, with judges and counsel having to wait until around 9pm on a Friday night for a verdict. Further, if they are particularly engrossed in their deliberations, juries are given the option to come back to deliberate on a Saturday, with little notice being given to the advocates that they will be required at court over the weekend.

As an independent criminal practitioner, it was impossible not to notice the difference in advocates who have only ever acted for one side and how an advocate’s skills can benefit from both prosecuting and defending. This was evident when observing the tactical approach of prosecutors who had previously defended before moving to the Crown.

Of course, the fact most advocates are employed means there is a lack of autonomy and that focus is often spent on billing and time recording expectations instead of the slightly more competitive market which our independent bar affords us. Whilst New Zealand’s system perfectly caters for its needs, there is still much to be celebrated about the Criminal Justice System in the UK. It provides us with a balanced and independent forum to fight within, and for the Bar in particular, is certainly still worth fighting for.