MCGUIRE v SECRETARY FOR JUSTICE [2020] NZCA 612

MCGUIRE v SECRETARY FOR JUSTICE [2020] NZCA 612 [2 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA70/2019[2020] NZCA 612BETWEEN JEREMY JAMES MCGUIREAppellantAND SECRETARY FOR JUSTICERespondentHearing: 17 September 2020Court: Cooper, Clifford and Collins JJCounsel: Appellant in personG L Melvin for RespondentJudgment: 2 December 2020 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The appellant, Jeremy McGuire, is a lawyer. In August 2015 Mr McGuireapplied to the Secretary of Justice pursuant to the Legal Services Act 2011(the 2011 Act) to become a provider of legal aid services in low-level criminalproceedings.1 The Secretary of Justice declined that application in October 2015.Mr McGuire sought a review of that decision pursuant to s 82 of the 2011 Act.The Review Authority confirmed the Secretary's decision.2 In 2016 Mr McGuirecommenced proceedings to judicially review the Secretary's 2015 decision.3 In ajudgment of January 2019, the High Court dismissed that application.4[2] Mr McGuire now appeals against that High Court decision. He saysthe Secretary erred in fact and law when making her decision to decline his 2015application, and that the High Court erred when, on review, it did not quash thatdecision on the basis of those errors. By way of relief, Mr McGuire asks us to declarethe Secretary to have been in error and to set aside her 2015 decision.Background[3] The circumstances which give rise to this appeal are complex. They have beenset out in detail in any number of decisions of the senior courts over recent years.5For our purposes the following very brief summary will suffice.[4] Mr McGuire was approved in 2003 by the then Legal Services Agency(the LSA) to provide legal aid services under the Legal Services Act 2000 (the 2000Act). In 2008 a legally aided client of Mr McGuire's claimed that, contrary to theprovisions of the 2000 Act, Mr McGuire had sought payment of a fee additional to thegrant of legal aid. As a result:(a) Mr McGuire faced two professional disciplinary charges ofunsatisfactory conduct; and(b) in September 2010 the LSA cancelled his approvals to provide legalservices under the 2000 Act.1 Known technically as "approval level 1 criminal proceedings", and more commonly by theacronym "PAL 1".2 McGuire v Secretary for Justice NZRA 3/2015, 22 December 2015.3 Section 83 of the Legal Services Act 2011 provides that a person may seek judicial review of theSecretary's decision only after applying to the Review Authority.4 McGuire v Secretary for Justice [2019] NZHC 42 [Judgment under appeal].5 See, for example, McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [13]–[40]; and Judgment under appeal, above n 4, at [3]–[12].[5] In May 2013, following an unsuccessful challenge to the LSA's July 2010cancellation decision but whilst those disciplinary proceedings were still underway,Mr McGuire applied under the 2011 Act for fresh approval as a provider of legal aidservices in family and criminal proceedings, among others. That application wasdeclined by the Secretary in November 2013, by which time Mr McGuire was onlypursuing that application as regards family proceedings. Mr McGuire's challenge tothe Secretary's 2013 decision, which ultimately reached the Supreme Court in 2018,was also unsuccessful.6 It was whilst those proceedings challenging the Secretary's2013 decision were still underway that Mr McGuire made his 2015 application.[6] Section 77(1) of the 2011 Act provides that the Secretary may approve a personto provide legal aid services if "satisfied that the person meets the criteria prescribedin regulations". The Legal Services (Quality Assurance) Regulations 2011 provide, inpt 1, the criteria and process for approval.7 As relevant here:(a) Regulation 6(1) sets out the general requirement that the lawyer "mustbe experienced and competent in each area of law in which he or sheintends to provide legal aid services".(b) Regulation 6(2) prescribes the decision-making steps to be followed bythe Secretary:(2) In deciding whether the applicant meets the criteria insubclause (1), the Secretary must—(a) apply the relevant experience and competencerequirements set out in the Schedule; and(b) take into account the applicant's experience as alawyer; and(c) be satisfied that the applicant has the appropriate levelof knowledge and skill to provide legal aid servicesor specified legal services in each area of law to whichthe application relates.[7] In setting out the relevant experience and competence requirementsthe schedule first defines the particular "area of law" involved, and then thoserequirements. As relevant here:6 McGuire v Secretary for Justice, above n 5.7 We refer to the regulations as they appeared when Mr McGuire made his application in 2015.(a) Clause 1(1) provides:approval level 1 criminal proceedings means—(a) any proceeding—(i) for which the procedure for trial is the Judge-alone trialprocedure; and(ii) that is not a Crown prosecution; and(b) any proceeding in a Youth Court(b) Clause 2 describes the relevant experience and competencerequirements as follows:2 Approval level 1 criminal proceedingsFor approval level 1 criminal proceedings, the applicant must—(a) have at least 12 months' recent experience in criminal lawpractice; and(b) have appeared as counsel with substantial and activeinvolvement in at least 3 trials in criminal proceedings.(c) The phrase "recent experience" is defined in reg 3(1) to mean"experience gained in the 5 years immediately before the date of theapplication".[8] Mr Melvin, for the Secretary, advises that she applies the criteria found in theschedule on the basis that that five year period applies to the requirement both for12 months' experience in criminal law practice and for appearance as counsel in atleast three trials in criminal proceedings. That is, the work experience relied on bythe practitioner for both criteria must have been had in the five years immediatelybefore the date of the application.[9] The Secretary determined that Mr McGuire was unable to meet the 12 months'recent experience criterion. In particular, the three trials he referred to involveddefended police prosecutions in the three-year period from 2008 to the cancellation ofhis approval in 2010. His more recent criminal court appearances were for sentencingafter guilty pleas. Accordingly, whilst he had had substantial and active involvementin the period up to July 2010, he had not thereafter.[10] Pursuant to reg 6(5), a person in that position may nevertheless qualify ifthe Secretary, having taken into account the applicant's experience as a lawyer, issatisfied that they meet the relevant experience and competence requirements in allother respects and have the appropriate level of knowledge and skill to provide legalaid services in the relevant area. In his 2015 application, under the heading "Summaryof experience outside the last five years", Mr McGuire wrote:I had 60 criminal files in 2009. I started practising as a duty solicitor andcriminal lawyer in my first few weeks of practice in the Lower HuttDistrict Court in 2005. I have helped train other duty solicitors (for exampleJock Turnbull in Porirua some years' ago). I have written on criminal law.I have conducted defended summary jurisdiction criminal hearings. I haveconducted at least one criminal appeal in the Court of Appeal and haverepresented clients on appeal in the High Court (usually bail appeals).The law of criminal procedure has changed a bit lately but I still appear onagency instructions even though I no longer have the regular appearances Ihad. I feel confident in my abilities.[11] The Secretary referred Mr McGuire's application to a selection committeeestablished under s 78 of the 2011 Act to assess applications and advise as to thesuitability of applicants. That committee advised the Secretary to declineMr McGuire's application. The Committee was concerned Mr McGuire had not beensignificantly involved in criminal law since 2010 and that, since then, he had been thesubject of one substantiated complaint and three further complaints that were yet to befinally determined. The Secretary then wrote to Mr McGuire, advising him ofthe Committee's advice.[12] Mr McGuire responded, noting that he had not been significantly involved incriminal law because he had lost his contract to provide legal aid services in 2010.He had, however, prior to that practised criminal law since 1995 and had not lost hisskill and competency since 2010. He referred to a recently published article in theNew Zealand Law Journal on discharges without conviction,8 and his completion oflitigation skills and other relevant courses. He acknowledged the changes to thecriminal law that occurred with the passage of the Criminal Procedure Act 2011 andhis consequent lack of experience under that regime. But, he stated, nobody hadexperience before the Act was enacted, so it was difficult to see how that was relevant.Once he had appeared in court a few times he would be just the same as everybody8 Jeremy McGuire "Discharge without conviction" [2014] NZLJ 411.else. As for the substantiated and open complaints, Mr McGuire noted most remainedsubject to challenge. Until those matters were resolved, it would not be appropriatefor the Secretary to take them into account.[13] In her decision, and with respect to the decision-making steps found inreg 6(2), the Secretary first acknowledged Mr McGuire's experience in criminal law.Turning to the questions of "knowledge and skill" the Secretary formulated herdecision in the following terms:• Mr McGuire argues that he has not had the opportunity to gain recentexperience in criminal law as he has not held an approval to provide legalaid services since 2010.• Legal aid is not a training ground for lawyers and the Regulations set outexperience and competence requirements that must be met by allapplicants. These give the Secretary for Justice and the wider public theassurance that legal aid lawyers are providing quality services. There area number of ways to gain experience including working in privatepractice, as a junior or as a supervised provider.• The Selection Committee were unable to provide advice on Mr McGuire'sknowledge and skill in criminal proceedings as he was unable to provideexamples of criminal cases where he has demonstrated his knowledge andskill, especially since the implementation of the Criminal Procedure Act2011. I acknowledge that Mr McGuire has written on the subject ofdischarge without conviction recently, but this does not make up for thelack of recent criminal law experience on his feet in the courtroom actingfor clients.• On balance, I am not satisfied that Mr McGuire has the appropriate levelof knowledge and skill to provide legal aid services as a lead provider atCriminal PAL 1. The application for approval as a lead provider atCriminal PAL 1 is declined.[14] As to the complaints, the Secretary accepted Mr McGuire's submission and putthem to one side, reaching no finding as to whether or not Mr McGuire was a fit andproper person:Mr McGuire is currently exploring the possibilities for review for three of thecomplaints and has various dates set down for the filing of memoranda andhearings. It would be premature for me to consider how those complaints,individually or together, affect Mr McGuire's status as a fit and proper personto provide legal aid services.High Court judgment[15] In the High Court, and in response to Mr McGuire's arguments to the contrary,Clark J reached the clear view that the Secretary made no reviewable error in decliningMr McGuire's application. In doing so, she endorsed the Secretary's assessment ofthe significance of the fact Mr McGuire had not practised criminal law in a substantiveway since losing his approval as a legal services provider.9 Moreover, over that periodsignificant reforms introduced by the Criminal Procedure Act had come into force.That Act had, the Judge noted, been referred to by the authors of Adams on CriminalLaw as leaving "few aspects of criminal procedure untouched".10 The Judgesummarised the examples given in that text as follows:11(a) The statutory reforms overhauled offence categories and jurisdiction.(b) The Criminal Procedure Act includes only high-level requirements.Matters of detailed court procedure are provided in court rules."Judicial officers, counsel and unrepresented defendants, need to befamiliar with and apply both the Act and relevant rules andregulations."(c) The Criminal Procedure Act overtook many of the provisions of theSummary Proceedings Act and Crimes Act.(d) The reforms [touched] on the law relating to who may conductproceedings; how a proceeding is commenced; pre-trial procedure;the approach to election of trial by jury; case management; proceedingin the absence of the defendant; name suppression; and appeals.[16] The Judge concluded:[63] Against the backdrop of such substantial change, it is difficult toconceive of an applicant for approval in the criminal law area being able tosatisfy the statutory criteria for competence if lacking substantive courtexperience under the reformed system. Mr McGuire did not meet therequirement for "recent experience" in Criminal PAL 1 and did not satisfythe Secretary that she should waive that requirement. I find no error of law orfact in the Secretary's assessment [or] her decision to decline Mr McGuire'sapplication.[17] Nor had the Secretary erred on the question whether Mr McGuire was a fit andproper person. Given the Secretary had already concluded Mr McGuire lacked the9 Judgment under appeal, above n 4, at [59]–[63].10 At [61], quoting Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at[CPAIntro.01].11 At [61].requisite skill and experience, there had been no legal requirement for her to make adecision on the "fit and proper" criterion and she had not done so.12The appealSubmissions[18] In this appeal, Mr McGuire repeated his challenge to the Secretary's decisionas one primarily based on the grounds of unreasonableness, a failure to considerrelevant considerations and alleged errors of fact and law. These grounds overlappedto a very large extent, however, reflecting Mr McGuire's generic pleaded position thatthe Secretary's decision was wrong in fact and law and resulted from her failing toproperly discharge her statutory and regulatory duties. Mr McGuire instead arrangedhis submissions around the requirements of (i) experience and competence and (ii) thefit and proper person test, and we therefore address the issues in that order.[19] On the question of his experience and competence, Mr McGuire disputedthe Secretary's conclusion, upheld by the Judge, that he lacked recent experience.He pointed to the fact his application recorded that he held 31 criminal files in 2010,two in 2011 and two in 2015, and referred to his current work for private clients andas a prosecutor for Fish & Game New Zealand. In essence, Mr McGuire argued thathis experience up until the time at which he lost his approval to provide legal aidservices established that he had the appropriate level of knowledge and skill required.Such relevant work as he had done since then, and the professional writing and traininghe had referred to, had helped maintain that competence. As to the Criminal ProcedureAct, and as he had said in response to the Selection Committee's recommendation, areturn to practice would soon see him familiarise himself with the new regime. It wasalso to be remembered that his application was for approval as a provider of legal aidservices in level 1 proceedings. Such proceedings were essentially what hadpreviously been called summary proceedings, where the trial before a Judge aloneessentially focused on the Crown and, if any, defence evidence, with little requirementfor advocacy or legal analysis.12 At [79]–[80].[20] Mr McGuire suggested the Secretary's decision erroneously overlooked thesefactors, was unreasonable and wrong in fact and law. He also claimed the Secretaryfailed to take into account two decisions of the Review Authority which wererelevant,13 and wrongly failed to consider whether to exercise her power under reg 6(5)to waive the strict experience requirements.[21] On the question of whether he was fit and proper, Mr McGuire submittedthe Secretary had failed to determine whether he satisfied this criterion. He suggestedthis constituted an error of law, because s 77(4) of the 2011 Act required the Secretaryto "provide reasons for his or her decision to give or decline approval". Confusingly,however, he simultaneously refuted the Judge's suggestion that "the Secretary did notdecide the application on the basis of the fit and proper person [criterion]",14 andsubmitted that his application "was declined both for not having recent experience andalso for not being a fit and proper person as at the time of the application".15[22] For the Secretary, Mr Melvin submitted that Mr McGuire's application, and hisown correspondence with the Ministry of Justice, made clear he fell short of theordinary requirements for recent experience. The suggestion that the Secretary hadfailed to consider whether to exercise her discretionary power under reg 6(5) wasincorrect, as the decision expressly recorded such a consideration. As for the "fit andproper person" criterion, the Secretary's decision was clear on its face that no decisionhad been reached and nor was one required. There was therefore no reviewable erroron this ground and the Judge was correct to dismiss the application for judicial review.Analysis[23] As to the Secretary's assessment that Mr McGuire failed to demonstrate he hadthe requisite recent experience, we reject the submission that the Secretary overlookedrelevant considerations. Several of the factors Mr McGuire pointed to — such as hissubsequent prosecution work and private clients — were not before the Secretary in2015 and are not relevant to her decision. The two Review Authority decisions herelied upon before us do not advance matters either. Both concerned practitioners in13 AO v Secretary for Justice 2012 NZRA 27; and AQ v Secretary for Justice 2013 NZRA 1.14 Judgment under appeal, above n 4, at [80].15 Emphasis in original.very different positions to Mr McGuire: the first applicant left her field for only twoyears, meaning she could point to significant experience within the five years beforeher application;16 and the second applicant had extensive overseas experience and hadpreviously been appointed as an acting Judge in a foreign jurisdiction.17 To the extentMr McGuire sought to draw unobjectionable points of law from these decisions — forinstance, that the Secretary's discretion must be exercised fairly and the Regulationsmust be interpreted purposively — we consider that the Secretary's decision does notdepart from them.[24] As to Mr McGuire's suggestion that the Secretary failed to consider whetherto exercise her power under reg 6(5), this submission was simply wrong.The Secretary expressly canvassed this option and gave reasons as to why she did notconsider it was appropriate to exercise her discretion in this case. She recorded in herdecision:• Regulations 6(5) to (7) outline that if an applicant does not satisfythe requirement that his or her experience is recent experience, I maystill consider granting an approval.• For a number of reasons, I am not confident that Mr McGuire has theappropriate level of knowledge and skill to provide legal aid servicesat Criminal PAL 1. I will note my concerns under regulation 6(2)(c)below.[25] We turn then to Mr McGuire's broader suggestion the decision wasunreasonable, the underlying theme of his other challenges to the Secretary's decision.As Mr McGuire acknowledged, the claim of unreasonableness is not an easy one tomake successfully. The ambit of this review ground was explained in many ways overthe years. Richardson P said in Wellington City Council v Woolworths New ZealandLtd (No 2):18For the ultimate decisions to be invalidated as "unreasonable", to repeatexpressions used in the cases, they must be so "perverse", "absurd" or16 AO v Secretary for Justice, above n 13.17 AQ v Secretary for Justice, above n 13.18 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552."outrageous in [their] defiance of logic" that Parliament could not havecontemplated such decisions being made by an elected council.More recently the Court has acknowledged that the standard of review may be moreor less intense depending on the particular context of the decision in question.19 In thiscase, however, we are satisfied that whatever degree of scrutiny is brought to bear onthe Secretary's decision, Mr McGuire's appeal cannot succeed.[26] By 2015, when he made his application, Mr McGuire had not substantivelypractised criminal law for almost five years. The three case examples Mr McGuireattached to his application all related to cases that were more than five years old, andthe evidence before the Secretary was that since then, Mr McGuire had only made ahandful of appearances in Court for clients who had already pleaded guilty.20 As weunderstood from him, with the exception of a limited number of private clients andprosecution work for Forest and Bird, that remains the case today. Whilst Mr McGuirewas applying for a relatively low level of service approval it is fair to say — asthe Secretary observed — that legal aid is not a training ground for lawyers.[27] One of the outcomes of the review which preceded the enactment of the 2011Act was a recognition of a need to ensure legal aid lawyers possessed the necessaryknowledge and skill. Furthermore, the Criminal Procedure Act substantially changedmany aspects of criminal procedure in New Zealand. In those circumstances, it cannotbe said the Secretary acted unreasonably either by having regard to those legal issuesor in her conclusion declining Mr McGuire's application.[28] Turning briefly to the assessment whether Mr McGuire was a fit and properperson, we agree with the Judge that the Secretary declined to make a decision on thispoint and that did not constitute an error of law. Mr McGuire is correct that s 77(4)requires the Secretary to give reasons for her decision to decline approval, but shecomplied with that requirement by explaining why she considered that Mr McGuirefailed to satisfy the recent experience criterion. As the Judge found, given that19 Quake Outcasts v Minister of Canterbury Earthquake Recovery [2017] NZCA 332, [2017] 3NZLR 486 at [73], referring to Wolf v Minister of Immigration (2004) 7 HRNZ 469 (HC) at [47].20 After the hearing, Mr McGuire sought to file (without leave) a memorandum drawing attention tothe fact that some of the examples of work samples in reg 9A(3) are relevant only to jury trials.Given the regulation is inclusive and merely gives examples, nothing turns on this point.conclusion, no assessment was called for as to whether Mr McGuire was a fit andproper person. Nor, as Mr McGuire appears to argue, can it be said that her decisionto do so reflected adversely on any assessment of him as a fit and proper person.[29] We therefore dismiss Mr McGuire's appeal.[30] In saying that we observe that Mr McGuire has not been without a limitedmeasure of success in the various proceedings he has commenced following the LSA's2010 decision. His efforts over the last 10 years show he is not without tenacity.Perhaps now is the time for Mr McGuire to invest those skills and talents, and his timeand energy, in supplementing his criminal law experience as he has done to an extentfollowing the Secretary's decision,21 so as to provide the "recent experience" tosupport a new application. But that will be over to Mr McGuire.Costs[31] At the end of the hearing of the appeal, there was an indication to us that theremay have been discussions between Mr McGuire and the Secretary that would berelevant to any decision on costs. We therefore reserve that issue. If agreement canbe reached, we invite a joint memorandum. If that is not the case, submissions shouldbe filed, by the Secretary within three weeks of this decision, and by Mr McGuirewithin one week thereafter. No more than three pages will be considered.Solicitors:Crown Law Office, Wellington for Respondent21 As noted above at [19], Mr McGuire has, following the Secretary's decision, worked asa prosecutor for Fish & Game and defended clients in private practice.