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Speaker 1: If the Solicitor General performing a U turn on her

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Speaker 1: prosecution guidelines. You remember the story. The new guidelines were

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Speaker 1: originally published back in October, and they instructed prosecutors like

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Speaker 1: our police to quote think carefully about particular decisions where

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Speaker 1: a person is Mardy. After a huge pushback, the government's

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Speaker 1: top lawyer has now scrapped any reference to treating Marty differently.

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Speaker 1: Erna Jiegosi Kse is the Solicitor General and she very

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Speaker 1: rarely speaks to media, but has agreed to speak to

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Speaker 1: us this afternoon. Thank you very much for coming on

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Speaker 1: the show. Can I start with the initial guidelines? What

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Speaker 1: exactly did you get wrong?

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Speaker 2: The introduction to the original guidelines really unclear about what

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Speaker 2: I meant when I referenced the fact that Mary are

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Speaker 2: disproportionately disproportionately represented in the criminal justice system. That was

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Speaker 2: a part of the context of reviewing the guidelines, and

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Speaker 2: in the introduction to the first ones in October, that

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Speaker 2: was really unclearly written, and it led people to understand

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Speaker 2: that I was saying there are two different approaches, one

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Speaker 2: for Mary and one for everybody else. That was quite

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Speaker 2: the opposite to what I was intending to say, and

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Speaker 2: I could see with the public commentary and from people

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Speaker 2: who wrote in that there was real confusion about that

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Speaker 2: and was too important. Criminal justice system has to be

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Speaker 2: understood and seen as a place where decisions are made

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Speaker 2: fairly and transparently for everyone. It was too important a

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Speaker 2: point I couldn't leave it. I decided to take it

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Speaker 2: down to make the point more clearly, which I've done.

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Speaker 1: When you wrote, think carefully about particular particular decisions where

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Speaker 1: a person is madi, what did you mean?

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Speaker 2: Well, that was a reference unclear, as I say, to

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Speaker 2: the context the fact that mariya disproportionately represented in our

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Speaker 2: criminal justice system and the problem you're saying.

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Speaker 1: You're saying, think carefully because they're overrepresented in the system,

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Speaker 1: think carefully about whether you prosecute them.

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Speaker 2: Well, that's the error and the lack of clarity in

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Speaker 2: that introduction. That's why I took it down, because people

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Speaker 2: were asking this very question, what do you mean? And

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Speaker 2: when I looked at it in light of that commentary,

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Speaker 2: I could see that I hadn't done as well as

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Speaker 2: I should have in landing that point.

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Speaker 1: So everyone introduction, everyone's interpreted it wrong. But what did

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Speaker 1: you actually mean when you wrote that?

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Speaker 2: Well, as the introduction now says, part of our context

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Speaker 2: that we are in is that as in fact, Mardy

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Speaker 2: disproportionately represented in the criminal justice system. It's plainly part

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Speaker 2: of the context. What that requires from prosecutors is for

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Speaker 2: real clarity about the individual in front of them. It

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Speaker 2: doesn't matter what groups they are in, whether they are

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Speaker 2: in a group that is misrepresented so disproportionately represented. They

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Speaker 2: need to think about how does that person come to

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Speaker 2: be here? What is their background, their characteristics, their history,

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Speaker 2: how do we understand their culpability for what's happened. It's

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Speaker 2: that that must be understood to be the key of

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Speaker 2: the criminal justice system.

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Speaker 1: Does it? Wouldn't the key be are they guilty? Do

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Speaker 1: I have enough evidence against them?

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Speaker 2: Certainly that is part of it.

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Speaker 1: Isn't that? Isn't that foundational? I mean, isn't that the

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Speaker 1: most important thing for a prosecutor to get? Right? Do

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Speaker 1: I have the right person with enough evidence to convict

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Speaker 1: them sitting in front of me?

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Speaker 2: Not?

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Speaker 1: What color are they? What school did they go to?

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Speaker 2: Right? So, there are two parts of that test. One

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Speaker 2: is the evidential sufficiency test, as you've just been describing,

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Speaker 2: Have I got enough here to bring this charge, and

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Speaker 2: the second question that prosecutor has to also ask is

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Speaker 2: is it in the public interest to prosecute There's always

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Speaker 2: been the case that not every crime is prosecuted, and

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Speaker 2: also not every crime is responded to by prosecution. There

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Speaker 2: might be alternatives. There might be penalties or fines or

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Speaker 2: alternative processes.

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Speaker 1: Right, but I guess what stage does somebody's race or

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Speaker 1: back ground play into either of those? I mean, let's say,

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Speaker 1: you know, why would it not be in the public

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Speaker 1: interest to prosecute some Okay, look, someone has stolen a car.

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Speaker 1: There's a there's a multi person and there's an Indian person.

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Speaker 1: They both stolen a car. Why would why would police

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Speaker 1: prosecute one over the and not the other? Why would

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Speaker 1: you even mention racing these guidelines period.

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Speaker 2: Well, you are just putting to me that error and

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Speaker 2: the way I had described it the first time around.

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Speaker 2: If you see the second time around, then our guidelines

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Speaker 2: they don't make this point. So they say that what

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Speaker 2: is relevant is that individual circumstances, what has happened to

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Speaker 2: them to bring them to here, not not what race

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Speaker 2: they are. That is not part of the guideline at all.

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Speaker 1: You mentioned in the new guidelines about bias, that people

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Speaker 1: should be aware of their bias and their biases. What

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Speaker 1: exactly are you getting at there?

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Speaker 2: Well, decision makers have to always as they're careful, to

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Speaker 2: understand that they might inadvertently be making biased decisions, whether

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Speaker 2: it's on the basis of the gender of the person

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Speaker 2: in front of them, their upbringing, it might be a

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Speaker 2: race bias, or manner of places in which bias can

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Speaker 2: take effect in our decision making. We want agencies and

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Speaker 2: prosecutors to be thinking, how do I test? How can

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Speaker 2: I check that I'm making the most clear and fair decision.

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Speaker 2: That's why we suggest things like peer of views and

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Speaker 2: some blind testing of decision making to make sure that

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Speaker 2: it is the facts in front of you that are

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Speaker 2: driving your decision making.

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Speaker 1: Are our prosecutors right now prosecuting innocent people on the

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Speaker 1: basis of bias?

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Speaker 2: I doubt that. I'm not sure where that question is

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Speaker 2: coming from. I doubt that.

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Speaker 1: Well, you're telling our prosecutors that they need to be

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Speaker 1: aware of their bias before making decisions to prosecute. I'm

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Speaker 1: asking you, are they making wrong decisions based on bias

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Speaker 1: right now? Are we prosecuting innocent people on the basis

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Speaker 1: of their color or their gender.

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Speaker 2: Well, the guidelines sort of listening point to guidelines. Sorry,

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Speaker 2: the guidelines aren't about helping people make in their own processes.

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Speaker 2: And these apply to more than forty different prosecuting agencies.

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Speaker 1: I know that their guidelines, they're guidelines designed to help

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Speaker 1: people make better decisions. What I'm asking is, are we

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Speaker 1: not making the right decisions right now? Is that why

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Speaker 1: you need to include this as a guideline.

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Speaker 2: I don't agree with that proposition. I mean, the guidelines

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Speaker 2: are about helping good decision making. They say nothing about

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Speaker 2: decisions that have already been made. That's what the courts do.

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Speaker 2: They determine whether or not the charge that's brought is

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Speaker 2: made out or not.

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Speaker 1: Has the reason these guidelines have been changed got anything

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Speaker 1: to do with Judith Collins and her You know, she

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Speaker 1: didn't write the foreword to the last lot, and she

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Speaker 1: she spoke out, or she didn't speak out strongly against them,

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Speaker 1: but she hinted that she'd like you to go back

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Speaker 1: and have a look at them. Is that what prompted this?

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Speaker 2: Well, it's not as sort of conspiratorial as you might

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Speaker 2: be suggesting. We didn't ask the attorney to make a

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Speaker 2: forward for the first set of guidelines this year. We

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Speaker 2: thought that better reflected that the statute says it's a

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Speaker 2: solicit general function. But no, the decision was mine when

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Speaker 2: I heard and saw the public misunderstanding of this really

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Speaker 2: critical point. The criminal law must apply to the person

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Speaker 2: as they present in their own individual circumstances, not to

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Speaker 2: a group. So when I saw that that was the

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Speaker 2: misunderstanding people were writing to our office as well as

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Speaker 2: public comment, I realized that I needed to start again,

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Speaker 2: not start again, so I just take them down and

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Speaker 2: to make that absolutely clear what was being said. So

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Speaker 2: that's what I've done, all right, and.

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Speaker 1: I thank you very much for your time. That's energy

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Speaker 1: to go to Casey. She is our Solicitor General, the

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Speaker 1: government's em lawyer. For more from Hither Duplessy Allen Drive,

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Speaker 1: listen live to News Talks at b from four pm weekdays,

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Speaker 1: or follow the podcast on iHeartRadio.