Triennial Review of Legal Aid

Current state

Public Defence Service

The Public Defence Service (PDS) is an independent criminal law practice that sits within the Ministry of Justice. As at April 2025, the PDS employs 191 lawyers to provide duty lawyer services and legal representation to individuals who are eligible for criminal legal aid.

The PDS is New Zealand’s largest criminal law practice. The PDS is located in 10 cities and operates in 15 District Courts and their related High Courts, the Court of Appeal, the Supreme Court and the Parole Board. In 2011, the Government set a target for PDS to take on 50% of all criminal legal aid cases in the locations where it operates as part of the broader expansion of the service. Currently, the PDS is accepting 32% of cases where it operates.   

Assignment of legal aid cases

If a defendant is facing very serious criminal charges and may go to prison for a lengthy period (more than 10 years), they can choose a lawyer to represent them. This is known as the lawyer of choice policy.

For less serious charges, defendants will have a lawyer (at the appropriate approval level) assigned to them using a rotational model to ensure a fair and equal proportion of cases are assigned between PDS and the private bar.

Problem or opportunity

The number of cases accepted by the PDS is currently below target.

The PDS tends to take on a larger proportion of less serious criminal cases. In 2023, the PDS accepted 10,024 criminal cases, of which 548 were serious criminal (PAL 3 and 4) cases.  This is likely driven by the lawyer of choice policy as a legal aid client is more likely to select a well-known or experienced private legal aid lawyer than wait for a lawyer to be allocated to their case. Currently, with a limited number of higher PAL cases available, the caseload of senior PDS lawyers sometimes includes lower PAL cases.

The PDS is currently proposing a restructure which overall includes the recruitment of more lawyers, which would bolster their ability to accept more legal aid cases.

What we are considering

We are considering making changes to enable the PDS to take on a greater share of cases. This may include:

• Changes to how the lawyer of choice and rotational allocation policy operates for serious criminal cases. One option is for serious cases (PAL 3 and 4) to be allocated in the same way as less serious cases (PAL 1 and 2). An alternative could be for a higher proportion of the serious cases allocated through rotational assignment being assigned to the PDS instead of to private criminal lawyers.
• Investing further in the PDS to enable them to take on a higher volume of cases than they do currently.

Initial analysis

Changes that would enable the PDS to take on more cases could reduce the overall costs of delivering legal aid.  If more higher PAL cases were available to senior PDS lawyers, lower PAL cases could be taken on by more junior PDS lawyers, thereby decreasing costs per case and realising savings in the legal aid appropriation.

The PDS provides a strong training programme for lawyers to progress their experience with more serious cases. If the PDS were to take on more serious cases, it may provide further opportunity to increase the pool of experienced senior lawyers providing legal aid.

The PDS would require additional investment to enable it to significantly expand its workforce to achieve a greater percentage of cases accepted.

Some stakeholders have raised the concern that removing the ability of a legal aid client to choose their lawyer could mean a client has less  trust and confidence in their lawyer and in the advice provided by the lawyer assigned to them. However, the ‘open case’ rule will still apply, where if an offender reoffends, the previous legal aid lawyer that represented them, can be reappointed as their legal aid lawyer.