Review of Courts (Remote Participation) Act 2010

The Act distinguishes between criminal procedural matters (matters with no evidence) and substantive matters (matters involving evidence) and sets different expectations for use.

We have received feedback that the distinction between ‘procedural’ and ‘substantive’ matters, based on whether the matter involves evidence, may not be fit for purpose.

Some ‘procedural matters’ do not involve evidence but may still be considered significant (e.g. because they determine the pathway of a case). For example, the current Act requires audio-visual links (AVL) to be used for first appearances where a participant is in custody unless contrary to the interests of justice. A view could be taken, however, that first appearance is not a ‘procedural matter’ as it is the first opportunity for the courts to engage with a defendant. The New Zealand Bill of Rights Act 1990 right for people who have been arrested to be brought ‘before’ a court as soon as possible is also relevant in this context.

In addition, sentencing may not fall neatly within existing definitions.

Redefining which criminal matters are suitable for remote participation. We want to test whether the current distinction is sufficiently problematic that a new approach is needed, and if so, what that approach should be.  

We have considered a range of potential alternative approaches to redefining which criminal matters are suitable for remote participation use. These include refining the definitions of 'procedural' and 'substantive', categorising by the type of event or matter (such as first appearance), the complexity of the matter, and the significance of the matter.

We consider categorising by the significance of the matter is most worthy of exploring further. This is because the alternatives are likely to be very difficult to define or identify. Categorisation by type of event or matter may also be too prescriptive for primary legislation and difficult to keep up to date.

Under an approach based on 'significance', there would be an initial presumption in favour of in-person attendance for significant events and remote attendance for non-significant events. Significance could be linked to whether the matter determines the pathway of the case and next steps, and/or progresses the case from one stage to another. Significant matters could include entry of plea and the trial.

There is a risk that this approach could create a different type of ambiguity or lack of clarity for court users.