Yesterday’s announcement that the Government will introduce legislation withdrawing funding for “cultural reports”, will significantly limit access to justice, the New Zealand Law Society Te Kāhui Ture o Aotearoa says.
“With funding for these reports removed, the only way a person facing sentencing will be able to access them is by paying privately. Those who can afford this would then have a greater level of representation in Court than those receiving Legal Aid. That is a significant breach of fundamental rights”, says Law Society President Frazer Barton.
Under section 27 of the Sentencing Act 2002, an offender may request the sentencing Judge receive a pre-sentence background report for consideration at sentencing. This report, often erroneously described as a ‘cultural report’, allows the offender to put evidence before the Court about their background, how that may have contributed to their offending, any support mechanisms available to them, and any actions they have taken to resolve the offending. Section 27 reports provide a comprehensive account of any relevant personal, family, whānau, community and cultural factors, and the relationship between those factors and offending behaviours. The report helps a judge to understand more about a person, their life and background, rather than simply the details of their offence.
Currently, if an offender has been granted legal aid, their lawyer can apply for additional legal aid funding for the report under the Legal Services Act 2011. The Government’s move to remove this option strikes at the rights of all to equal access to justice.
“Defunding the availability of these reports through legal aid will have a more pronounced effect on Māori, who remain overrepresented in the criminal justice system. But we must be clear here – despite common sentiment, this is not an issue of certain ethnic groups receiving more favourable sentences, and it is not about simply reducing sentences. The provision of these reports is about equitable, effective, and tailored sentencing outcomes. The reports serve a range of individuals across all ethnic groups, many of whom come from lower socio-economic backgrounds.”.
“The Law Society is concerned about what this means for our criminal defence lawyers, who are under a professional obligation to place all relevant material before the court. The information that comes to light in the preparation of these reports is often highly relevant to the circumstances of the offending. We already know that some lawyers are bearing the cost of relevant specialist reports for their clients, doing so because of their deep commitment to a fair and just process.”
The Law Society understands work has been underway, including by officials and the judiciary, to consider the use of these reports in court, including their increased prevalence, who prepares the report, and cost.
“The Law Society agrees that the use of section 27 reports requires further consideration and there are improvements to be made. Work is already underway to examine how these reports are to be used in the future, and the Law Society considers that is the appropriate avenue for any review into how the reports are funded. This approach would ensure there is thorough and meaningful consultation with the public and the profession”, says Mr Barton. “Even where policy promises have been made during an election, we expect to see robust policy work supporting their development and the consideration of alternatives, alongside consideration of the wider implications of legislative change. There may be other means of addressing what appear to be largely financial concerns and concerns relating to the perceived impact of these reports on sentencing outcomes.”
The Law Society strongly encourages public consultation through the usual select committee process.