The new justice minister says there is a breakdown in the system, with figures showing some people are still spending years in prison without being sentenced.
Two people have marked three years in prison – without being sentenced.
They are among increasing numbers of remand inmates being held for years while their cases move agonisingly slowly through the court system.
People held in prison on remand are yet to be sentenced for the crime, or crimes, that they have been charged with. In many cases, they are yet to be convicted. In more than 100 cases last year, they were eventually acquitted.
On Wednesday, the prison muster was 8954, down from an all-time high of 10,820 in March 2018. Of those people, 3222 (36 percent) were yet to be sentenced.
The country’s remand population continues to hover around all-time highs, as government and officials continue to grapple with a crisis they seem unable to fix through a series of changes at the edges.
Figures released to Newsroom under the Official Information Act show in the past financial year, the longest time someone had been held on remand was 1111 days, at the Otago Corrections Facility. That’s three years, two weeks and one day, to be precise.
Others had been held for 1097 days (Auckland Region Women’s Corrections Facility), 1089 days (Northland Region Corrections Facility), and 1052 days (Christchurch Men’s Prison).
These long remands have been happening for years – and the average remand lag is on the rise. In the 2020 financial year, the average number of days an unsentenced prisoner spent inside jail was 77.2 days – an increase of 42.7 percent on 10 years ago.
There are a number of reasons why someone may be held in prison on remand, rather than granted bail to live in the community while awaiting their court hearings. Some are deemed to be dangerous; for others there is simply a lack of sufficient and safe housing.
New Justice Minister Kris Faafoi said there was a problem. “It is a fundamental right that people should have their cases dealt with in a timely way but it is clear that instances of people being held on remand for extended periods shows there is a breakdown in the system.”
There are a number of reasons for the increase in court delays. These include an increase in serious cases coming through the courts, which generally require more resources.
There has also been an increase in the number of people entering a guilty plea later in the criminal court process. This meant extra hearings were needed, which put a strain on court resources.
Faafoi said the lack of sufficient resources to deal with the additional court hearings and the reallocation of judges from the criminal to the family jurisdiction was resulting in further delays.
The additional workload meant there had been a continued increase in the number of days between court appearances, and the number of days between when someone was charged and when their case had finished its passage through the court process.
Like all things, the court system – and in turn the amount of time people are held on remand – has been further impacted by Covid-19.
When jury trials were suspended in March, it created a backlog of 60,000 cases. The pandemic disrupted courts in a way not seen since the Second World War.
The courts are still working through that backlog, all while more cases are coming online.
The number of people held in prison on remand, rather than granted bail, has also been impacted by law changes passed in 2013 following the murder of Christie Marceau – her killer Akshay Anand Chand was on bail at the time of her murder.
The change in family violence laws in 2018 also added to the remand population, and there has been criticism of the speed at which Corrections’ Probation Services has prepared reports needed for people to be granted bail.
Asked whether the court system was broken, Faafoi said he shared the concerns expressed by Andrew Little when he was justice minister, and by Chief Justice Dame Helen Winkelmann.
“It means that we probably are remanding in custody more than necessary.”
– Andrew Little
The remand population started to hover around these all-time highs last year. At the time, Little told Newsroom there was a number of factors (including those laid out by Faafoi), but he did say the fact that about 40 percent of those on remand were not given custodial sentences “means that we probably are remanding in custody more than necessary”.
Generally, Little has been outspoken on his thoughts about New Zealand’s justice system.
He spearheaded the last government’s national conversation regarding justice system reform, and made no secret of the fact he wanted to change laws, systems and services in a move away from the historically ‘tough on crime’ approach taken by successive New Zealand governments.
But aside from trialling and expanding pilot programmes and ad hoc initiatives, little was done by way of widespread reform – or the transformation promised.
However, with New Zealand First no longer around to act as a ‘handbrake’, it looks like the current Government will push ahead with changes to the criminal justice system.
But it will be Faafoi, rather than Little, leading the implementation.
“This is a crisis of the government’s making and they need to act to fix it.”
– Tania Sawicki Mead
JustSpeak director Tania Sawicki Mead said the system was “clearly broken and in crisis”.
It was “outrageous” that people who had not been sentenced to prison, a significant number of whom (based on historical data) would not ever be sentenced to prison, were spending so long on remand, “trapped in the maze of the justice system with no way out”.
“This is a crisis of the government’s making and they need to act to fix it.”
There was public appetite to change the system, she said, referencing research from earlier in the year, which found a majority of New Zealanders supported the resolution of low-level offences in the community and the prioritisation of rehabilitation, in an effort to prevent further harm being done.
“None of those objectives are achieved through imprisoning people who haven’t been sentenced and denying them access to the very services that would address the harm and find solutions,” she said.
“The rising remand population is one of the major challenges we face in the criminal justice space.”
– Kelvin Davis
Sawicki Mead, along with others working in the criminal justice space who have spoken to Newsroom about this issue, say being held in prison on remand has a direct impact on a person’s likelihood of reintegration, as well as their risk of reoffending.
In many cases, people struggle to access programmes and support, leaving remand prisoners in a holding pattern for months, and in some cases, years.
Criminal defence lawyer Echo Haronga said the numbers were not surprising. Despite efforts by the courts, this was a long-standing issue that had been galvanised by Covid-19.
Long wait times had real negative impacts on people’s lives, as well as their ability to rehabilitate and reintegrate, Haronga said.
“Remand times such as these should be a mar on any democratic society. The right to be tried without undue delay is a human right enshrined in the New Zealand Bill of Rights Act.”
Corrections Minister Kelvin Davis said work was underway to address the remand problem – something he’s been saying since taking on the portfolio at the start of the last term of government.
But he also acknowledged the constraints in the system, especially when it came to delivering rehabilitation programmes to those on remand.
“The rising remand population is one of the major challenges we face in the criminal justice space.”
Faafoi and Davis pointed to extra funding for courts and additional judges (thanks to a recent law change).
Davis spoke about Corrections’ High Impact Innovation Programme, which has helped identify and address unnecessary delays that hinder the bail and parole processes. This year Corrections invested $49 million in a pretrial service to help support people to be safely bailed, as quickly as possible.
Corrections also allocates every prisoner a case manager after 10 days, who can help them access skills training for things like parenting and budgeting.
However, those on remand struggle to access any kind of comprehensive programmes that will help with their rehabilitation or reintegration.
“These numbers represent real people, who are mothers, fathers, children, grandchildren and community members.”
– Tania Sawicki Mead
While New Zealand’s remand story is one of injustice for those imprisoned, the delays also negatively impacted prisoners’ families, and victims.
“These numbers represent real people, who are mothers, fathers, children, grandchildren and community members,” Sawicki Mead said.
There are a range of issues that need to be addressed in order to deal with the growing remand problem – many of them will also help address reoffending and victimisation.
At the top level, access to a steady and adequate income, access to health and addiction services, education, and secure housing, will help keep people out of prison.
Poverty is a core driver of crime. And when people are charged with an offence, a lack of access to secure housing and support makes them more likely to be held in prison, on remand.
From a legislative point of view, Sawicki Mead – along with others working in the prison reform space – have long called for the government to do away with the Bail Amendment Act, which has led to a surge in remand numbers – as well as adding to the fear felt by some communities; largely those who are unlikely to be victimised by the type of crime they fear.
Many of these issues have been raised repeatedly by justice reform groups and researchers, and most recently by the government-initiated review of the criminal justice system, and it will take a significant amount of time to implement recommended changes.
In the meantime, Faafoi said the Criminal Process Working Group had been established and was responding to the backlog pressures.
The group was established by Chief District Court Judge Heemi Taumaunu after the delays were exacerbated by Covid-19.
The main objective of the group was to make sure each court appearance or meeting was effective and ultimately reduced the amount of time between the first appearance and case closure.
This meant addressing resourcing in police and corrections, adding extra judges, and creating a new court scheduling system.
Work was also being done to improve the support for people on bail, along with more reporting and analysis of adjournments and filing compliance for lawyers, and ensuring pre-sentence reports were available and complete.
Faafoi said he would continue to find ways to address the issue, including looking at utilising technology that can increase efficiencies to help address delays.
