December 12, 2024 • 8 mins
The Solicitor-General's spoken out over public pressure to change the prosecution guidelines.
Una Jagose had advised prosecutors to think carefully about particular decisions when a person is Māori.
She's now scrapped any mention of race in the official guidelines.
In a rare media interview, Jagose says the previous version simply lacked clarity.
"It led people to understand that I was saying there were two different approaches - one for Māori and one for everyone else. That was quite the opposite to what I was intending to say."
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Episode Transcript
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Speaker 1 (00:00):
If the Solicitor General performing a U turn on her
prosecution guidelines. You remember the story. The new guidelines were
originally published back in October, and they instructed prosecutors like
our police to quote think carefully about particular decisions where
a person is Mardy. After a huge pushback, the government's
top lawyer has now scrapped any reference to treating Marty differently.
(00:22):
Erna Jiegosi Kse is the Solicitor General and she very
rarely speaks to media, but has agreed to speak to
us this afternoon. Thank you very much for coming on
the show. Can I start with the initial guidelines? What
exactly did you get wrong?
Speaker 2 (00:35):
The introduction to the original guidelines really unclear about what
I meant when I referenced the fact that Mary are
disproportionately disproportionately represented in the criminal justice system. That was
a part of the context of reviewing the guidelines, and
in the introduction to the first ones in October, that
(00:56):
was really unclearly written, and it led people to understand
that I was saying there are two different approaches, one
for Mary and one for everybody else. That was quite
the opposite to what I was intending to say, and
I could see with the public commentary and from people
who wrote in that there was real confusion about that
(01:16):
and was too important. Criminal justice system has to be
understood and seen as a place where decisions are made
fairly and transparently for everyone. It was too important a
point I couldn't leave it. I decided to take it
down to make the point more clearly, which I've done.
Speaker 1 (01:32):
When you wrote, think carefully about particular particular decisions where
a person is madi, what did you mean?
Speaker 2 (01:41):
Well, that was a reference unclear, as I say, to
the context the fact that mariya disproportionately represented in our
criminal justice system and the problem you're saying.
Speaker 1 (01:53):
You're saying, think carefully because they're overrepresented in the system,
think carefully about whether you prosecute them.
Speaker 2 (02:01):
Well, that's the error and the lack of clarity in
that introduction. That's why I took it down, because people
were asking this very question, what do you mean? And
when I looked at it in light of that commentary,
I could see that I hadn't done as well as
I should have in landing that point.
Speaker 1 (02:17):
So everyone introduction, everyone's interpreted it wrong. But what did
you actually mean when you wrote that?
Speaker 2 (02:23):
Well, as the introduction now says, part of our context
that we are in is that as in fact, Mardy
disproportionately represented in the criminal justice system. It's plainly part
of the context. What that requires from prosecutors is for
real clarity about the individual in front of them. It
doesn't matter what groups they are in, whether they are
(02:44):
in a group that is misrepresented so disproportionately represented. They
need to think about how does that person come to
be here? What is their background, their characteristics, their history,
how do we understand their culpability for what's happened. It's
that that must be understood to be the key of
the criminal justice system.
Speaker 1 (03:05):
Does it? Wouldn't the key be are they guilty? Do
I have enough evidence against them?
Speaker 2 (03:10):
Certainly that is part of it.
Speaker 1 (03:12):
Isn't that? Isn't that foundational? I mean, isn't that the
most important thing for a prosecutor to get? Right? Do
I have the right person with enough evidence to convict
them sitting in front of me?
Speaker 2 (03:22):
Not?
Speaker 1 (03:23):
What color are they? What school did they go to?
Speaker 2 (03:26):
Right? So, there are two parts of that test. One
is the evidential sufficiency test, as you've just been describing,
Have I got enough here to bring this charge, and
the second question that prosecutor has to also ask is
is it in the public interest to prosecute There's always
been the case that not every crime is prosecuted, and
also not every crime is responded to by prosecution. There
(03:49):
might be alternatives. There might be penalties or fines or
alternative processes.
Speaker 1 (03:55):
Right, but I guess what stage does somebody's race or
back ground play into either of those? I mean, let's say,
you know, why would it not be in the public
interest to prosecute some Okay, look, someone has stolen a car.
There's a there's a multi person and there's an Indian person.
They both stolen a car. Why would why would police
(04:16):
prosecute one over the and not the other? Why would
you even mention racing these guidelines period.
Speaker 2 (04:24):
Well, you are just putting to me that error and
the way I had described it the first time around.
If you see the second time around, then our guidelines
they don't make this point. So they say that what
is relevant is that individual circumstances, what has happened to
them to bring them to here, not not what race
(04:45):
they are. That is not part of the guideline at all.
Speaker 1 (04:48):
You mentioned in the new guidelines about bias, that people
should be aware of their bias and their biases. What
exactly are you getting at there?
Speaker 2 (04:58):
Well, decision makers have to always as they're careful, to
understand that they might inadvertently be making biased decisions, whether
it's on the basis of the gender of the person
in front of them, their upbringing, it might be a
race bias, or manner of places in which bias can
take effect in our decision making. We want agencies and
(05:19):
prosecutors to be thinking, how do I test? How can
I check that I'm making the most clear and fair decision.
That's why we suggest things like peer of views and
some blind testing of decision making to make sure that
it is the facts in front of you that are
driving your decision making.
Speaker 1 (05:37):
Are our prosecutors right now prosecuting innocent people on the
basis of bias?
Speaker 2 (05:48):
I doubt that. I'm not sure where that question is
coming from. I doubt that.
Speaker 1 (05:51):
Well, you're telling our prosecutors that they need to be
aware of their bias before making decisions to prosecute. I'm
asking you, are they making wrong decisions based on bias
right now? Are we prosecuting innocent people on the basis
of their color or their gender.
Speaker 2 (06:08):
Well, the guidelines sort of listening point to guidelines. Sorry,
the guidelines aren't about helping people make in their own processes.
And these apply to more than forty different prosecuting agencies.
Speaker 1 (06:21):
I know that their guidelines, they're guidelines designed to help
people make better decisions. What I'm asking is, are we
not making the right decisions right now? Is that why
you need to include this as a guideline.
Speaker 2 (06:35):
I don't agree with that proposition. I mean, the guidelines
are about helping good decision making. They say nothing about
decisions that have already been made. That's what the courts do.
They determine whether or not the charge that's brought is
made out or not.
Speaker 1 (06:51):
Has the reason these guidelines have been changed got anything
to do with Judith Collins and her You know, she
didn't write the foreword to the last lot, and she
she spoke out, or she didn't speak out strongly against them,
but she hinted that she'd like you to go back
and have a look at them. Is that what prompted this?
Speaker 2 (07:08):
Well, it's not as sort of conspiratorial as you might
be suggesting. We didn't ask the attorney to make a
forward for the first set of guidelines this year. We
thought that better reflected that the statute says it's a
solicit general function. But no, the decision was mine when
I heard and saw the public misunderstanding of this really
(07:30):
critical point. The criminal law must apply to the person
as they present in their own individual circumstances, not to
a group. So when I saw that that was the
misunderstanding people were writing to our office as well as
public comment, I realized that I needed to start again,
not start again, so I just take them down and
to make that absolutely clear what was being said. So
(07:53):
that's what I've done, all right, and.
Speaker 1 (07:54):
I thank you very much for your time. That's energy
to go to Casey. She is our Solicitor General, the
government's em lawyer. For more from Hither Duplessy Allen Drive,
listen live to News Talks at b from four pm weekdays,
or follow the podcast on iHeartRadio.
If the Solicitor General performing a U turn on her
prosecution guidelines. You remember the story. The new guidelines were
originally published back in October, and they instructed prosecutors like
our police to quote think carefully about particular decisions where
a person is Mardy. After a huge pushback, the government's
top lawyer has now scrapped any reference to treating Marty differently.
(00:22):
Erna Jiegosi Kse is the Solicitor General and she very
rarely speaks to media, but has agreed to speak to
us this afternoon. Thank you very much for coming on
the show. Can I start with the initial guidelines? What
exactly did you get wrong?
Speaker 2 (00:35):
The introduction to the original guidelines really unclear about what
I meant when I referenced the fact that Mary are
disproportionately disproportionately represented in the criminal justice system. That was
a part of the context of reviewing the guidelines, and
in the introduction to the first ones in October, that
(00:56):
was really unclearly written, and it led people to understand
that I was saying there are two different approaches, one
for Mary and one for everybody else. That was quite
the opposite to what I was intending to say, and
I could see with the public commentary and from people
who wrote in that there was real confusion about that
(01:16):
and was too important. Criminal justice system has to be
understood and seen as a place where decisions are made
fairly and transparently for everyone. It was too important a
point I couldn't leave it. I decided to take it
down to make the point more clearly, which I've done.
Speaker 1 (01:32):
When you wrote, think carefully about particular particular decisions where
a person is madi, what did you mean?
Speaker 2 (01:41):
Well, that was a reference unclear, as I say, to
the context the fact that mariya disproportionately represented in our
criminal justice system and the problem you're saying.
Speaker 1 (01:53):
You're saying, think carefully because they're overrepresented in the system,
think carefully about whether you prosecute them.
Speaker 2 (02:01):
Well, that's the error and the lack of clarity in
that introduction. That's why I took it down, because people
were asking this very question, what do you mean? And
when I looked at it in light of that commentary,
I could see that I hadn't done as well as
I should have in landing that point.
Speaker 1 (02:17):
So everyone introduction, everyone's interpreted it wrong. But what did
you actually mean when you wrote that?
Speaker 2 (02:23):
Well, as the introduction now says, part of our context
that we are in is that as in fact, Mardy
disproportionately represented in the criminal justice system. It's plainly part
of the context. What that requires from prosecutors is for
real clarity about the individual in front of them. It
doesn't matter what groups they are in, whether they are
(02:44):
in a group that is misrepresented so disproportionately represented. They
need to think about how does that person come to
be here? What is their background, their characteristics, their history,
how do we understand their culpability for what's happened. It's
that that must be understood to be the key of
the criminal justice system.
Speaker 1 (03:05):
Does it? Wouldn't the key be are they guilty? Do
I have enough evidence against them?
Speaker 2 (03:10):
Certainly that is part of it.
Speaker 1 (03:12):
Isn't that? Isn't that foundational? I mean, isn't that the
most important thing for a prosecutor to get? Right? Do
I have the right person with enough evidence to convict
them sitting in front of me?
Speaker 2 (03:22):
Not?
Speaker 1 (03:23):
What color are they? What school did they go to?
Speaker 2 (03:26):
Right? So, there are two parts of that test. One
is the evidential sufficiency test, as you've just been describing,
Have I got enough here to bring this charge, and
the second question that prosecutor has to also ask is
is it in the public interest to prosecute There's always
been the case that not every crime is prosecuted, and
also not every crime is responded to by prosecution. There
(03:49):
might be alternatives. There might be penalties or fines or
alternative processes.
Speaker 1 (03:55):
Right, but I guess what stage does somebody's race or
back ground play into either of those? I mean, let's say,
you know, why would it not be in the public
interest to prosecute some Okay, look, someone has stolen a car.
There's a there's a multi person and there's an Indian person.
They both stolen a car. Why would why would police
(04:16):
prosecute one over the and not the other? Why would
you even mention racing these guidelines period.
Speaker 2 (04:24):
Well, you are just putting to me that error and
the way I had described it the first time around.
If you see the second time around, then our guidelines
they don't make this point. So they say that what
is relevant is that individual circumstances, what has happened to
them to bring them to here, not not what race
(04:45):
they are. That is not part of the guideline at all.
Speaker 1 (04:48):
You mentioned in the new guidelines about bias, that people
should be aware of their bias and their biases. What
exactly are you getting at there?
Speaker 2 (04:58):
Well, decision makers have to always as they're careful, to
understand that they might inadvertently be making biased decisions, whether
it's on the basis of the gender of the person
in front of them, their upbringing, it might be a
race bias, or manner of places in which bias can
take effect in our decision making. We want agencies and
(05:19):
prosecutors to be thinking, how do I test? How can
I check that I'm making the most clear and fair decision.
That's why we suggest things like peer of views and
some blind testing of decision making to make sure that
it is the facts in front of you that are
driving your decision making.
Speaker 1 (05:37):
Are our prosecutors right now prosecuting innocent people on the
basis of bias?
Speaker 2 (05:48):
I doubt that. I'm not sure where that question is
coming from. I doubt that.
Speaker 1 (05:51):
Well, you're telling our prosecutors that they need to be
aware of their bias before making decisions to prosecute. I'm
asking you, are they making wrong decisions based on bias
right now? Are we prosecuting innocent people on the basis
of their color or their gender.
Speaker 2 (06:08):
Well, the guidelines sort of listening point to guidelines. Sorry,
the guidelines aren't about helping people make in their own processes.
And these apply to more than forty different prosecuting agencies.
Speaker 1 (06:21):
I know that their guidelines, they're guidelines designed to help
people make better decisions. What I'm asking is, are we
not making the right decisions right now? Is that why
you need to include this as a guideline.
Speaker 2 (06:35):
I don't agree with that proposition. I mean, the guidelines
are about helping good decision making. They say nothing about
decisions that have already been made. That's what the courts do.
They determine whether or not the charge that's brought is
made out or not.
Speaker 1 (06:51):
Has the reason these guidelines have been changed got anything
to do with Judith Collins and her You know, she
didn't write the foreword to the last lot, and she
she spoke out, or she didn't speak out strongly against them,
but she hinted that she'd like you to go back
and have a look at them. Is that what prompted this?
Speaker 2 (07:08):
Well, it's not as sort of conspiratorial as you might
be suggesting. We didn't ask the attorney to make a
forward for the first set of guidelines this year. We
thought that better reflected that the statute says it's a
solicit general function. But no, the decision was mine when
I heard and saw the public misunderstanding of this really
(07:30):
critical point. The criminal law must apply to the person
as they present in their own individual circumstances, not to
a group. So when I saw that that was the
misunderstanding people were writing to our office as well as
public comment, I realized that I needed to start again,
not start again, so I just take them down and
to make that absolutely clear what was being said. So
(07:53):
that's what I've done, all right, and.
Speaker 1 (07:54):
I thank you very much for your time. That's energy
to go to Casey. She is our Solicitor General, the
government's em lawyer. For more from Hither Duplessy Allen Drive,
listen live to News Talks at b from four pm weekdays,
or follow the podcast on iHeartRadio.
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