Prosecutor Classification of In-House Lawyers:
Solicitor-General’s Guidance
1.
The
following classification
framework
applies to in-house lawyers who lead public
prosecutions in the District Court and are employed by public service departments and
Crown entities. It creates a career pathway environment which allows for capacity building,
training and supervision of prosecutors. It is designed to assist agencies with allocation of
criminal prosecutions to the appropriate level of in-house counsel, thereby enhancing the
prosecutorial capability of the public prosecutions network.
Key principles
2.
Flexibility and discretion: This document outlines the ordinary criteria for classification
as a general guidance against which classification applications will be measured. It is by no
means a prescriptive or exclusive code. Variations of or departures from the guidance
criteria will be looked at on a case-by-case basis and accommodated in appropriate cases
where the candidate presents alternative forms of experience akin to the criteria described
below.
3.
Judge alone trial experience: The main focus of the classification assessment for non-
Crown prosecutors is their level of experience in Judge-alone trials as sole or lead counsel.
Experience in other areas of litigation (e.g. civil, administrative or family litigation, clerkship
to the judiciary etc.) will be taken into consideration and compared, to the extent it is
practicable, to the appropriate equivalent level of Judge-alone trial experience.
4.
Junioring and secondments:
Prosecutors in departments and Crown entities may not be
exposed to the same frequency of Court appearances as their colleagues from the Crown
Solicitor network. This is particularly evident with regards to trial experience. To ensure
prosecutors progress through the classification framework and maintain high levels of
performance, special encouragement is given to junioring and secondment arrangements
with other prosecution agencies, as well as Crown Solicitors, with a view to enhancing the
variety and intensity of the criminal advocacy experience.
Supervision
5.
Level 1, 2 or 3 Prosecutors are required to be supervised. The supervisor’s role will be to
guide and mentor the classified prosecutor and, when appropriate, recommend the
prosecutor’s re-classification. Supervisors will also determine whether a matter is ‘simple’
or ‘complex’ for the purposes of this framework (see table below).
6.
Agencies that employ in-house prosecutors are encouraged to have at least one Level 4
Prosecutor amongst its staff, who could supervise the agency’s prosecutors. In addition, or
alternatively, supervision may be provided by appropriately classified prosecutors from
other prosecution agencies or Crown Solicitor offices.
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7.
For the avoidance of doubt, supervision under this framework does not necessarily extend
to management of the prosecutor, nor to responsibility for work allocation. Where the
person allocating work to prosecutors is not a Level 4 Prosecutor, and the intended
prosecutor is one whose classification allows appearances in ‘simple’ matters only under
this framework, feedback from a Level 4 Prosecutor would be required to inform the work
allocation.
Application for classification
8.
Level 1 Prosecutors will be classified internally by their agency’s Chief Legal Advisor, on
the recommendation of a supervisor described in the table below.
9.
Level 2, 3 or 4 Prosecutors will be classified by the Solicitor-General. Classification
applications should be submitted by the agency’s Chief Legal Advisor, thus reflecting their
own professional assessment of the prosecutor and recommendation that the prosecutor be
classified or re-classified.
10.
Applications to the Solicitor-General for classification or re-classification may be filed at
any
time
with
the
Public
Prosecutions
Unit
by
emailing
[email address].
11.
All classification applications to the Solicitor-General should include professional
evaluation of the prosecutor’s skills by a supervisor described in the table below.
12.
Applications should identify how the classification criteria are met. If relevant, the
application should identify where one or more of the criteria are not met, and how the
prosecutor demonstrates an equivalent level of experience or training.
13.
Applications for Level 3 Prosecutor and Level 4 Prosecutor should include representative
lists of prosecutions and other significant litigation conducted by the prosecutor, with a
brief description of what those matters entailed in terms of prosecutorial experience. In
particular: the type of charges (under which legislation); the role played by the prosecutor
(e.g. sole/lead or second/junior counsel, in the latter case with an indication as to their role
in Court e.g. opened/closed/cross examined); particular areas of expertise; significant
features and scope of cases (e.g. number of witnesses, number of days, whether defendant
gave evidence).
General
14.
Agencies may choose to voluntarily apply stricter classification criteria. Where practicable,
and if considered desirable, agencies may also choose to adjust and extend this framework
to non-criminal areas of litigation or to non-lawyers who appear in Court for the agency.
15.
Where granted, classification decisions will be valid for three years, after which time an
application for re-classification will be required to be filed with the Public Prosecutions
Unit. Candidates classified as Level 3+ Prosecutors are able to do all of the work of a
Level 3 plus the mentoring and supervision of a Level 4 Prosecutor.
16.
Prosecution agencies may apply to the Solicitor-General for general or specific approval to
appear in Court as an exception to this framework.
17.
Crown Law will review this framework no later than 1 October 2019. The review will
include consultation with prosecution agencies.
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Counsel Classification - Non-Crown Prosecutions
Level 1 Prosecutor
Level 2 Prosecutor
Level 3 Prosecutor
Level 4 Prosecutor
Entry requirements
Standard of
Law degree and New Zealand
At least 1 year of experience in
At least 3 years of experience in
At least 5 years of experience in
previous
practising certificate.
criminal litigation with regular court
criminal litigation with regular court
criminal litigation with regular court
experience
appearances.
appearances.
appearances.
Standard of
Relevant in-house training to the Ethics for prosecutors1 and
Ethics for prosecutors1 and
Ethics for prosecutors1 and
previous
satisfaction of Level 4
at least one of the following:
at least one of the following:
at least one of the following:
training
prosecutor (from any agency) or
•
Departmental Prosecutors’
•
New Zealand Law Society
•
NZLS Litigation Skills course;
PPU.
Forum Bootcamp
(NZLS) Introduction to
•
PPS Advanced Advocacy course;
•
Police Prosecution Service (PPS)
Criminal Law Practice course;
•
Equivalent in-house or external
Intro to Prosecutions Course;
•
PPS Basic Advocacy course;
training.
•
Equivalent in-house or external
•
Equivalent in-house or external
training.
training.
Key
•
Sound understanding of relevant
As per Level 2 plus working
As per Level 3 plus –
demonstrated
procedural provisions.
knowledge of the CPA and Evidence
•
advanced competence in
skills
•
Basic litigation skills.
Act, good standard of oral advocacy
cross examination.
and litigation skills at trial level.
•
Appropriate handling of victims.
•
exercise of good judgement.
Classified by
Chief Legal Advisor
Solicitor-General
Solicitor-General
Solicitor-General
Operation of a classified prosecutor
Allocated
Appearing as sole counsel in:
Level 1 plus:
Level 2 plus:
Level 3 plus:
Court work
•
Judge’s and Registrar’s List
•
drafting
complex3 prosecution
Appearing as sole/lead counsel on
•
appearing as sole/lead counsel
Courts during the
documents;4
•
Category 1 Judge-alone trials;
on Category 3 and
complex3
administrative stage2;
•
attending to case management
•
Simple3 Category 2 Judge-alone
Category 2 Judge-alone trials;
•
Simple3 sentencing
discussions with defence and
trials;
•
mentoring and supervision of
hearings;
appearing at case review hearings; • Cat. 1, 2 or 3 pre-trial hearings;
Level 1 to 3 prosecutors;
•
Simple3 s106 hearings.
•
appearing in formal proof
•
disputed facts hearings;
•
training;
Drafting
simple prosecution
hearings;
•
appeals to the District Court.
•
peer review;
documents.4
•
appearing on defended hearings
•
assessing whether matters are
Junioring.
for infringement offences;
simple or complex for the
Providing litigation support to
•
appearing in
complex sentencing
purposes of this framework.
other prosecutors.
hearings.
Supervisor
Level 3 or 4 prosecutor or
Level 4 prosecutor or Crown Solicitor
Level 4 prosecutor or Crown
Crown Solicitor equivalent
equivalent
Solicitor equivalent
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Notes/definitions:
Note 1:
The requirement to attend the ‘
Ethics for prosecutors’ training will apply only when such a module is made available to prosecutors, by or on behalf of Crown Law.
Note 2:
The
administrative stage commences when the prosecution is commenced and concludes when a plea is entered.
Administrative stage appearances include the first and
second appearances, as well as subsequent administrative appearances before the plea is entered.
Note 3:
Determining whether a matter is
simple or
complex will be
the role of the allocated supervisor.
Note 4:
Prosecution documents include charging documents, summonses, summary of facts, case management memoranda, applications for adjournments and pre-trial
matters, as well as memoranda and written submissions.
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