'Bolder approach needed' in running justice system during lockdown

'Bolder approach needed' in running justice system during lockdown

Court hearings via video link, teleconferences and no access to prisons – legal professionals are essential services working through the coronavirus lockdown but it's not business as usual.

"I am still appearing in court during the lockdown, [but] there are only two courts running as opposed to the usual eight," Christchurch barrister Nicola Hansen said.

While non-essential court proceedings have been adjourned administratively, new arrests and cases with defendants in custody are still being heard. Defendants appear via audio visual link (AVL), either from the police cells if arrested or from the prison.

"Some Canterbury prisoners have been transferred to Otago Corrections Facility and they appear from there via AVL. Lawyers can choose to appear in court in person or can appear via telephone or a virtual meeting room, but this only got up and running on Monday," Hansen said.

While measures are taken to protect lawyers appearing in court such as maintaining social distance in the courtroom, not allowing members of the public to attend and allowing legal professionals to wear masks and gloves, Hansen said she was "disappointed at the lack of support" from the Ministry of Justice for duty lawyers.

"Duty lawyers are required to attend court to represent everyone who has been arrested. They play an essential role in obtaining bail for these people. Without them, the court system would grind to a halt. However, the Ministry has failed to provide masks for duty lawyers and is expecting duty lawyers to continue to work in conditions that could potentially expose them to Covid-19," she said.

"On top of this, the Ministry has now announced that it is cutting the number of duty lawyers rostered on each day. This means that a significant proportion of duty lawyers who have been rostered on, several months in advance, are now being told not to come to work and consequently do not get paid. For those that are able to work as duty lawyers, the rate of remuneration does not reflect the risk we are taking by working in our current conditions."

Another challenge faced by duty lawyers is consulting with clients in custody while prisons are under lockdown.

"Speaking to clients who are in custody has been quite difficult," Auckland barrister Maria Pecotic said.

"As of [Tuesday] the Mt Eden Corrections Facility has not allowed any AVL appointments, because the booth that is used for legal visits is now being used for the Manukau District Court. So if you have a client at Mt Eden, you have to email the prison to see if the client can ring you. It is virtually impossible to get instructions from someone in custody at Mt Eden."

Although AVL appointments are available at other Auckland prisons, it is not always ideal."AVL is OK for uncomplicated meetings, but if you've got a large amount of disclosure to go through or detailed discussions on a case, it is just not satisfactory."

Hansen said she also had trouble speaking to clients at Christchurch Men's prison.

"Often there is simply no answer when I phone them. Other times the prison refuses to take the client out of lockdown to speak to me. This is causing further delays as I am unable to take instructions from my clients to progress matters," she said.

Ron Mansfield, senior criminal litigator in Auckland, agreed keeping legal proceedings going through the lockdown was challenging, but said the long term impact would only be able to be assessed at a later stage. 

"In my view it is too early to really make an assessment of the situation, the lockdown has only been a week. Most people are just dealing with the personal change and the professional change that is required. It will be in the weeks to come that there will be more of a strain on resources," Mansfield said.

"The reality is for two months, and it is likely to be longer, trials have been adjourned and if they are now being ranked behind the trials that have already been allocated fixtures, these trials will easily be delayed by 12 months or longer."

The waitlist for a trial in Auckland was around nine to 12 months even before the coronavirus lockdown, he said.

Elizabeth Hall, a barrister from Wellington specialising in criminal law, said she had a jury trial scheduled to take place in May this year, but it has now been rescheduled to May 2021.

"The criminal justice system was already under enormous pressure for hearing times and trial dates and [the coronavirus restrictions] have just added to that."

Mansfield said changes would need to be made to address the long term implications of the lockdown.

It was understandable the immediacy of the coronavirus pandemic and the consequent lockdown restrictions left the Ministry of Justice having to play catch-up with a limited budget and limited resources, he said.

"The courts for a long time have been reluctant to welcome technology because of concerns that flow from the use of technology, such as access to justice, open justice and being able to control who has access and how they have access to justice. So there are a number of complex issues that need to be addressed for change to happen," he said.

"Normally change is slow through the Ministry and we can't afford slow change here. We need to be bolder in our approach and if problems arise, we need to be prepared to confront those problems and resolve them."