Current position
Problem
Possible reform
Commentary
Current position
Most judges are appointed generically to preside over all types of cases in the High Court or District Court. However some District Court judges are appointed and given a warrant to preside in particular courts (for example, the Youth Court or Family Court) or to preside over particular types of cases (for example, jury trials).
There are also some specialist courts that have been established administratively and allocated to particular judges. For example, Family Violence Courts operate in Whangarei, Auckland, Waitakere, Manukau, Palmerston North, Masterton, Porirua and Lower Hutt. A Youth Drug Court also operates in Christchurch and a pilot has been proposed for one or two courts in Auckland (see here). However, there is no requirement that the judges receive specialist training in these areas.
New judges receive some initial orientation and training when they take up the role, through the Institute of Judicial Studies. The Institute of Judicial Studies runs ongoing programmes focused on core judicial skills and knowledge for judges from all courts. It also runs programmes focused on specialist skills and knowledge for judges from individual courts, such as the Family Court, covering developments in the law, jurisprudence and disciplines associated with the work of specialist benches.
There are no judges specialising in sexual offence cases. Nor is there any requirement for judges to undertake specialised training in dealing with sexual offences, although it might be covered in continuing legal education that they undertake.
Problem
Unlike civil law jurisdictions, judges do not emerge through a judicial career path. They are appointed to the Bench after an extensive period in legal practice, usually as a lawyer in the private sector. They may have specialised in commercial, family, environmental or another specialist legal area, or they may have had a general practice with little criminal law. They therefore do not necessarily have an extensive background in criminal litigation. What training they do receive is generally “on the job” and through seminars arranged by the Institute of Judicial Studies.
Moreover, in the absence of any training or additional information, they may approach particular sorts of cases (notably sexual violence and family violence cases) with some of the array of myths and prejudices about such offending that jurors will bring to the task (see this extract from the McDonald and Tinsley book and here).
Possible reform 3D
Specialist judges would sit on sexual offence cases. There would be a specialist training programme that judges would elect to participate in before they were able to preside over such cases.
After completion of the initial training, judges would be required to undergo regular ongoing training to ensure that they were up-to-date with recent developments.
This possible reform would apply to sexual offence cases only.
Commentary
In difficult areas such as sexual offending, where there is a great deal of community misunderstanding and prejudice, it is highly desirable that judges have appropriate training in that particular area before presiding over trials in that area. This has been recognised in other jurisdictions in a variety of ways, for example the “sex ticket” system in the United Kingdom (see here at p 92).
Specialisation could be given effect in two ways:
- Only judges warranted to undertake those trials would be able to do so. This would be a formal system that would make sexual offence trials the equivalent of jury trials or Family Court cases, where only judges with warrants to preside over jury trial or Family Court cases can do so.
- More informal specialisation, as has been done with the establishment of Family Violence Courts, where only judges with the interest and training to do so would be rostered to sit in those courts.
We doubt that the first model is realistic, at least if it were to be applied to all sexual offence cases. Given the large number of courts across the country and the need for judges to travel in order to preside at those courts, a high proportion of judges would need to be warranted, which might in the end defeat the purpose. Even the second model, if it were to take the form of a separate court like the Family Violence Court, may not be realistic at the pre-trial stage, since the numbers of such cases would be much smaller than the numbers of family violence cases.
In order to ensure appropriate knowledge and training, it seems more realistic and ultimately more effective to ensure that judges with appropriate interest and aptitude receive extensive training in the area and as far as possible to roster them to preside over sexual offence trials and deal with pre-trial issues in relation to those trials.
More discussion on specialist training of judges sitting on sexual offence cases can be found in this extract from the McDonald and Tinsley book.