Crown solicitors deserve scrutiny

Graeme Edgeler had an interesting piece the other day advocating for crown solicitors to be subject to the Official Information Act. Uniquely in the western world, Aotearoa has privatised its most important prosecution decisions to private law firms. These make public decisions in the name of the state, decisions that if they were made by any other government functionary would be able to be scrutinised using the OIA. But because they are appointed by royal fiat, rather than simply a contract, they are not subject to the OIA:

This isn’t true of all prosecutions. The serious fraud office conducts prosecutions – including jury trials – of serious fraud. You can request information about these prosecutions under the Official Information Act. And when Police prosecute more minor offending, and Police prosecutors are making the same sorts of decisions around plea bargaining that Crown Solicitors make, Police are covered by the Official Information Act, and their decisions can be subjected to public and media scrutiny.

And the same goes for importation prosecutions by Customs, and fisheries prosecutions undertaken by the Ministry of Primary Industries, and District, City and Regional Council prosecutions, and even the exercise of prosecution powers by local Fish and Game Councils when people fish or hunt without a licence.

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But, if that charge wasn’t fishing without a licence but was instead murder, the Official Information Act will not help you understand the decisions made by those prosecuting on behalf of the State, because the law says that there is no public interest in allowing OIA oversight of murder prosecutions.

This is, quite obviously, fundamentally wrong. And even the solicitors themselves recognise that! A 2021 investigation of crown solicitors by RNZ quotes one of them as being uncomfortable with the lack of scrutiny of their decisions not to prosecute (it also highlights other issues deserving of scrutiny: the lack of diversity, the level of expenditure, the way that these warrants have been held by the same clique of law firms for a century. Which just... smells. But the state protects itself from investigation by denying basic transparency...)

Not mentioned in Graeme's article: crown solicitors are subject to the Public Records Act. And the terms of their appointment state that all their information belongs to the state, and they must make it available to the Solicitor-General on request. Which simply reinforces his point: these are public officials, making public decisions in our name. As he says, "given the power Crown Solicitors possess, conducting the most serious prosecutions on behalf of the Government, there is no good reason not to subject them to the same scrutiny as Fish and Game wardens."

Graeme has set up a petition to parliament asking for the OIA to be extended to cover them. I've signed it. You should too. Because the people who make decisions about whether to prosecute rapes deserve at least the same level of scrutiny as fish and game wardens.