The High Court in Auckland. (Photo: Cornell Tukiri ©)

Tim McKinnel, an investigator and former policeman, on the problem with our privatised prosecution model — and the pay inequity between those who predominantly prosecute Māori, and those who advocate for them.

It’s an uncomfortable but incontrovertible fact that Aotearoa’s criminal justice system persistently produces racist outcomes. The most obvious demonstration of this is the relentless incarceration of Māori over the last several decades.

More than just incarceration, the disproportionate delivery of state sanctioned violence by the state’s coercive arm is a disgrace. Police use force on Māori — guns, tasers, pepper spray, batons — at seven times the rate they do on non-Māori. That includes the disturbing fact that more than half of those shot by police are Māori.

In this context, it’s tempting to presume that policing is a root cause of racism in criminal justice. However, while data around law enforcement is grim, we shouldn’t ignore the role played by our courts of law. And, by extension, the lawyers who operate at almost every level of the system and are often the ultimate arbiter in cases.

Consider a typical criminal justice experience in Aotearoa. A suspect (substantially more likely to be Māori than any other ethnicity) is interviewed and arrested by the police for an alleged crime.

They are offered access to a lawyer (who will likely not be Māori, given the disproportionately low number of Māori lawyers) and may have a lawyer to advocate for them from that moment on, paid for by legal aid if they can’t afford their own lawyer, as they move through the criminal justice process.

If the crime they’re accused of is classed as moderate to serious, they will be prosecuted by a lawyer acting for the Crown (more on this later) who will rely on evidence gathered by the police. A judge (also a lawyer) will then adjudicate various hearings, including the assessment of arguments on the admissibility of evidence.

If the suspect is convicted of a crime — with guilt determined by a guilty plea, or a judge or jury — they are sentenced by a judge following submissions from lawyers. Once convicted, defendants have a right of appeal and, if they exercise that right, the appeals are usually argued by lawyers, in front of appeal judges (still lawyers).

Judges will then decide whether a conviction or sentence should be quashed or adjusted. If a defendant is sentenced to prison, the possibility of parole will later be considered by the Parole Board, chaired by a judge.

While there are variations, there ought to be little doubt that, if there are racist outcomes in justice, lawyers and their role in the criminal justice system inevitably play a substantial part.

Much like policing, the legal profession continues to wrestle with a lack of diversity. The relative scarcity of Māori advocates and judges throughout the various layers of our system is well recognised.

In a justice system that is occupationally dominated by lawyers, it’s a stark fact that a mere six percent of all lawyers are Māori. As the Chief Justice Dame Helen Winkelman commented recently, it’s a “troubling reality that an overwhelmingly Pākehā judiciary deals with a predominantly Māori cohort of defendants”. So it’s clear the issue is well known.

However, beyond diversity, there are other structural features of our justice system that contribute to our system’s shameful record.

One of those is the outsourcing of prosecution to private law firms.

And another is the inequitable pay rates for those who represent poor, predominantly Māori and Pasifika, defendants.

To the uninitiated, it can be jarring to learn that, in Aotearoa, the state outsources the prosecution of moderate and serious crime to 17 commercial law firms throughout the country.

These private law firms hold “Crown warrants”, legal instruments that empower private firms to prosecute on behalf of the state, with oversight from Crown Law.

Beyond being a quirk that sets Aotearoa apart from many comparable common law countries, the privatisation of such a fundamental societal role is something that deserves scrutiny, in the context of a justice system that persistently hammers Māori the way ours does.

Our privatised model is described by the Law Commission as a replica of the mid-19th century English system, modified by piecemeal changes in the years that followed. The model emerged in the early years of colonisation, with private lawyers engaged on behalf of the Crown to prosecute citizens, with the title of prosecutor an attractive addition to commercial lawyers’ resumes.

The approach has endured since then, with little in the way of substantive review. It is, because it always has been.

Last year I wrote to Crown Law, the government agency that oversees Crown prosecutors to ask about their monitoring of Crown Solicitors, particularly as it related to ethnicity.

The response to my questions about monitoring of performance around ethnicity was illuminating and can be summarised as follows: Crown Solicitors do not report to Crown Law on ethnicity. Crown Law does not monitor the ethnicity of defendants prosecuted by Crown Solicitors. And Crown Law does not maintain any internal policies on bias in criminal justice.

When I asked specifically about the training required of Crown Solicitor lawyers, Crown Law wrote:

Where practicable Crown Solicitors will endeavour, through the recruitment and development of their staff, to reflect the diversity of the community which the warrant serves. Best efforts will also be made to recruit and develop staff to reflect the diversity of the community which the warrant serves. Although the training of staff is ultimately for the firm to manage as a private practice . . .

Where practicable. Best efforts. For the firm to manage. You get the idea.

Given this apparent hands-off approach to the monitoring and reporting of ethnicity in Crown prosecutions, I was curious about how Te Tiriti featured in Crown Law’s agreement with the private legal providers. What responsibilities did private, for-profit law firms have in terms of the Treaty, given the critical role they play in our criminal justice system?

The answer was straightforward, if not underwhelming, and is contained in the agreement between Crown Law and the law firms, in one paragraph:

Crown Solicitors are committed to the values and principles of Te Tiriti o Waitangi and this will be reflected in the delivery of Crown prosecution services and the management and operations of their respective Crown Solicitor’s offices. 

That is all that’s said about Te Tiriti o Waitangi when a law firm is contracted by the Crown to prosecute citizens on behalf of the state. There doesn’t appear to be any means by which to report, measure or monitor how prosecution services are delivered with respect to Te Tiriti, or even if anything at all is done to fulfil this responsibility.

And while it’s possible that Crown Solicitors have been able to achieve what no one else in criminal justice has — the racially neutral execution of their role — it seems unlikely.

Given the current approach, though, we have no way of knowing whether there’s a problem, and if there is, the scale of it.

A second, and related, structural feature that may contribute to poor outcomes for Māori and Pasifika in justice is the inexplicable pay disparity between private law firms who prosecute “a predominantly Māori cohort”, and those who defend them.

Private law firms, who are given a geographical monopoly when awarded the Crown warrant, are paid substantially more than advocates who represent Māori, Pasifika and other low-income people through the legal aid scheme run by the Legal Services Agency.

Presently, the government pays a junior prosecuting lawyer $147 an hour. In comparison, a legal aid lawyer at the same level is paid $92 to $106 an hour. As the seriousness of an alleged crime increases, so too does the disparity. The top rate for a Crown prosecutor is $300 an hour, while those who defend the poor are paid $159 an hour, nearly 50 percent less than what the government pays the Crown Solicitor on the other side.

There’s a certain irony that a system that’s designed on the principle of equality of arms, bears such disparity, particularly in the context of our continued failure in Māori and Pasifika communities.

As an investigator who regularly works for low-income clients under the legal aid scheme, I see firsthand the impact of that resource imbalance between the prosecution team, Crown Solicitors and the billion-dollar-budget police force — and defence teams who have to operate not only with less funding, but also without ready access to experts and consultants, like forensic scientists.

Defence teams for the poor don’t have the comfort of a supplier contract with the Crown and guaranteed income.

But what can be done about the apparent lack of accountability within our privatised prosecution model? And how does this relate to the pay inequity between those who predominantly prosecute Māori, and those who advocate for them?

A potential solution that would go some way to remedying these structural flaws would be the introduction of a state prosecution service, in a way similar to our common law relatives.

A well-funded and efficient prosecution service, transparent and properly monitored, has some attractive features. Such an agency would be required to act only in the interests of society, including our most mistreated and vulnerable sectors, and would report its performance across these areas. That would include meaningful measurement of its adherence to Te Tiriti.

Such a model would also alleviate the troubling pay gap between prosecutors and defenders.

There would be other benefits, too, including a standardised approach to prosecutions across the country. And it would also create an environment where we’re more likely to get greater media scrutiny of prosecution decisions.

In my experience, the news media are often reluctant to challenge the actions and decisions of private law firms — and certainly not with the same vigour they apply to state agencies. Who can think of a single instance of the news media criticising the flawed prosecutorial decisions — and there were a few — made in the Teina Pora case?

A state-based prosecution service wouldn’t be a panacea to our system’s many problems, but it would be a worthwhile step towards addressing the disproportionate prosecution and incarceration of Māori — and towards a fairer, more equitable justice system for all.

Tim McKinnel is a former South Auckland police officer and detective. He holds a master’s degree in criminology, and is an investigator and director at investigation consultancy Zavest, where he specialises in human rights and wrongful conviction cases. Tim spent six years leading the investigation into the wrongful conviction of Teina Pora.

An earlier version of this story wrongly described him as a lawyer.

© E-Tangata, 2021