Defendants are entitled to be tried efficiently and should not lose this right or face arrest because of officious gatekeepers

The disruption of the covid pandemic will continue to have major implications for the work of courtrooms. Parliament is considering the Covid-19 Response (Courts Safety) Legislation Bill, which amends several acts to dramatically expand the role of non-contact court procedures.

Provisions are already in place, such as the Courts (Remote Participation) Act 2010, that allow for audio and audio-visual link (AVL) participation in court proceedings, which are used for ‘vulnerable witnesses’ and defendants in custody. The bill proposes to increase the scope of courtroom audio and audio-visual technology. These measures are potentially a source of new efficiencies that could be used well beyond the pandemic. As well as remote participation, the bill also creates new powers to keep people from entering a court. While this bill is welcome, in our view its current form does not strike the right balance with fair trial rights in several areas.

Many judges interpret s 8 of the Courts (Remote Participation) Act as applying only to sentencings where the defendant is in custody, because (understandably) of the requirement in s 8(2)(b) of the Act that “the participant is in custody”. It would be desirable to amend the Act so pleas and sentencings of all types can be undertaken via the remote participation of defendants and counsel. This comes with the important caveat that the power to request remote participation should lie with the defendant. Appearing in person is a long-standing practice and part of natural justice, so it should remain the default position unless the alternative is requested.

It would also be desirable for these changes to be permanent. The AVL proposals in the bill have a sunset clause but in our view court procedure is overdue to catch up with the efficiency that widespread AVL offers.

It is time-consuming (and carbon emitting) for counsel to travel long distances for appearances, which could be avoided if AVL appearances became routine. And not just for counsel: defendants regularly ask whether they can appear remotely as well. It is a common expectation of the modern world that everything from international conventions to surgical procedures are conducted with participants in different places and there is no reason why the work of courtrooms could not be conducted on the same basis.

Secondly, the bill amends the Courts Security Act 1999 to provide that various people, including the presiding judge and security officers, may give directions about whom may enter a courtroom. The bill does not place any boundaries on these powers or even designate a hierarchy in decision making. Confusion will result, along with inconsistent practice.

Further, it will not promote known criteria that can be promulgated and also risks injustice. The sweeping powers proposed do not even recognise the right of a defendant to enter the courtroom. Defendants are entitled to be tried efficiently and should not lose this right (or face arrest) because of officious gatekeepers.

Nationally, all courtrooms face the same issue and there is no imperative for local variations. The criteria for entering a courtroom should be laid down in the Act. Such criteria could provide for variations over time or between regions to take account of how the crisis evolves, as determined by a specified decisionmaker, like the Chief District Court Judge. In that way, practice would be both consistent and widely understood. It would also ensure most importantly that the balance that needs to be struck can be, with due consideration and not be arbitrary.

The bill also provides that a security officer who bars a person from a court must give them the “gist” of the legislative provision that authorises this. The provision is moderately complicated and security officers do not have the training, nor likely, in a crowded entranceway, will they have the opportunity to give what amounts to legal advice.

We propose that everyone barred be given access to a duty lawyer and arrangements must exist for one to be summoned, or placed at the entranceway during busy periods, for this to happen. Security officers should be required to tell excluded people only that free legal advice is available on request. This not only better reflects the role of security officers but ensures that excluded people do not just get told what the law is, but have an advocate who can analyse the situation and challenge exclusions that are not justified.

Thirdly, the bill changes the Juries Act 1981 by giving sweeping powers to heads of bench to create protocols (in addition to existing rules) that may affect matters as important as the defendant’s right of challenge in jury selection or discharging the jury – something that should be an irreducible fair-trial right.

This broad targeting of jury trial procedure aptly reminds us that passing events must not be given superior status over hard-earned rights. In the last 100 years or so, our system of justice has survived another global pandemic and other exigencies where life was not exactly ideal. By keeping things in perspective, we can calmly uphold fair trial rights, even at this unwelcome moment in our history. ■

Auckland barrister Samira Taghavi is a member of the ADLS