Ministry outlines defence lawyer role in restorative justice

The Ministry of Justice has provided a statement to the New Zealand Law Society related to the problems which are being encountered around New Zealand with the impact on courts of section 24A of the Sentencing Act 2002.

Section 24A, which came into effect on 6 December 2014, requires referral of cases in the District Courts to an approved restorative justice provider if certain conditions are met. This is having an impact on court workloads.

The ministry's statement is as follows: 

"The role of defence lawyers in restorative justice

"Changes to restorative justice processes came into effect in December 2014. We are committed to ensuring the aims of the new legislation are achieved and are closely monitoring the impact of the changes. It is still early days and we understand that in some courts the increases in referrals to restorative justice have been high.

"The changes require an assessment as to whether restorative justice is appropriate if the criteria under section 24A of the Sentencing Act are met. Restorative justice remains a voluntary process that allows the victim and offender to meet together with the support of an independent trained facilitator.

Your role as defence lawyer

"If you have a client who intends to plead guilty to an offence where there is an identifiable victim, you should:

·  advise them about restorative justice and seek their views on being involved

·  inform the Registrar at the Registrar’s list of your client’s willingness, or not, to participate in restorative justice

·  if requested, provide the Registrar at the Registrar’s list with contact details for the offender to go on the referral form for the restorative justice provider.

"If the case is adjourned for restorative justice, the court will inform you of your client’s sentencing date. If the restorative justice conference does not go ahead, your client will be required to attend at the sentencing date. If it does go ahead, the court will inform you of a new sentencing date.

"Once the service is completed, you will receive a copy of the restorative justice conference report, and may refer to it in your sentencing submission.

"Legal aid

"The criminal legal aid schedules have always included a fee for restorative justice, for costs associated with briefing a restorative justice provider and consideration of the subsequent report.

"Additionally, since 15 December 2014, when an appearance is adjourned for investigation of restorative justice, legal aid providers can claim, via an amendment to grant, for preparation for that adjourned appearance and for the actual time of the adjourned appearance(s).

"The amendment to grant can be applied for either before the event or retrospectively and reasonable applications for an amendment to grant for these reasons will not require additional evidence.

"These fees and arrangements will be reviewed as part of the Legal Services Commissioner's review of criminal legal aid fee schedules."