Solicitor-General Una Jagose. Photo: RNZ / REECE BAKER
The Solicitor-General has reissued prosecution guidelines, which are used by prosecutors and prosecuting agencies, after the wording of her initial release led to political backlash.
The guidelines were last issued in 2013. In October, Una Jagose published 27 updated guidelines, but then backtracked later that month.
Jagose's introduction to the advice asked prosecutors to "think carefully about particular decisions where a person (whether the victim or the defendant) is Māori, or a member of any other group that is disproportionately impacted by the criminal justice system."
The guidelines are not rules for prosecutors to follow, but are instead a tool for them to use when deciding whether to prosecute a person, as well as guidelines around things like bail and sentencing.
While Jagose wrote that the guidelines did not promote different treatment based on ethnicity, the document was still criticised by Prime Minister Christopher Luxon and ACT leader David Seymour, and not endorsed by Attorney-General Judith Collins.
At the time, Luxon said the coalition's view was that policy should not take race into account, and that while individuals can make a case to a judge around their circumstances and background, prosecution should be colourblind.
On Thursday, Jagose re-released the guidelines with a re-written introduction, and said she had reviewed the guidelines themselves to make edits ensuring her language was clear.
The new introduction states the guidelines were reviewed to reflect the modern context in which prosecutions are conducted:
"Some prosecuting agencies did not find the previous guidelines to be relevant to the offending they prosecute because the guidelines were largely focused on serious offending prosecuted by the Police. Another part of the context was that Māori are among those groups that are disproportionately represented in the criminal justice system, as both defendants and victims. Victims' groups and advocates also considered the guidelines could better reflect victims' interests and experiences in prosecution decisions," Jagose wrote.
Appearing before Parliament's justice committee on Thursday, Jagose said she had "missed the mark" with her original wording.
"I realised that I could have done better with the way that I had worded that particular part of the introduction, recognising the context that Māori are overrepresented in the criminal justice system, but not being clear enough about what that meant for prosecutors," she told MPs.
Jagose said the criminal justice system had always required understanding of someone's individual circumstances and background, why they had come to offend, and what their culpability was, as well as how the law, prosecutor, and court should respond. But her introduction had been interpreted so that she was advocating for a different rule for Māori from everyone else.
"It was just too important for that misunderstanding. The misunderstanding being 'the Solicitor General saying there are two different types of approach in the law.' That cannot stand, so that was why I had to take it down and clarify, which we've done," she said.
Speaking to media after the hearing, Jagose made it clear that the decisions to publish the guidelines, backtrack, and reissue them were all hers, but public commentary had told her she had originally got it wrong.
"That's why they came down, and I've revised that. There is no lack of clarity now, and the guidelines themselves are substantially the same. But the criticism over 'what does she mean there?' That's the thing I had to listen to," she said.
"I did listen to it, it's too important for people to understand how prosecutions work and how the criminal justice system operates to have left that misunderstanding in my own wording and drafting."
Asked whether politicians were responsible for muddying those waters, Jagose re-iterated it was public commentary she was responding to.
"Some of the public commentary was from ministers and other members, and also from members of the public. And we listened to that, of course we do. People say 'we're confused,' that was not the place for the guidelines to be."
When the guidelines were initially released in October, the Attorney-General did not write a foreword, as has been common practice, indicating she did not endorse them. This time, Judith Collins has written one.
Despite the delay, it is still expected Crown Law prosecutors will start applying the guidelines as-planned from 2025.
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