30 years on – What does the 2025 revamp of the Solicitor-General Prosecution Guidelines mean for local authorities?
Overview
The Solicitor-General Prosecution Guidelines are fundamental in shaping Aotearoa’s criminal justice system, and they have recently been updated following the most comprehensive review in over 30 years.
While the definition of “prosecuting agency” excludes local authorities, they nonetheless provide best practice guidance for local authorities that are deciding, or that have decided, to initiate or continue a prosecution, and councils are encouraged to ensure that their prosecutorial processes and policies are consistent with the updated Guidelines.
They serve as the cornerstone of decision-making for local government prosecutors, ensuring alignment with the broader justice system while also meeting the needs of local communities.
Key Updates to the Guidelines
In deciding whether to prosecute, councils will be aware of the well-known evidential and public interest tests – both of which have been re-framed in the recent update:
- the evidential test now requires prosecuting agencies to ask whether there is “sufficient evidence to prove a charge beyond a reasonable doubt,” with a focus on the admissibility and reliability of evidence; and
- the public interest test now requires prosecutors to ask: “does the public interest require a prosecution to be brought?”
For local authorities assessing their enforcement options for regulatory offending, this shift ensures that, before proceeding with a prosecution, the facts of the offending are the weighed against the specific interests of the broader community.
Regulatory Prosecutions and Tikanga Māori
The revised guidelines are broader, reflecting an increased focus on regulatory offences, where local government authorities are often the first line of enforcement. More emphasis is placed on the use of tikanga Māori, which is particularly important in environmental cases, where this knowledge is integral to understanding the communal impact of an environmental offence.
Self-Represented Defendants
Self-represented defendants are common in local government prosecutions, and as such, prosecutors must take extra care when engaging with individuals who choose to represent themselves. This includes ensuring that no legal advice is given, avoiding complex legal language, and ensuring any resolution discussions are fair and do not result in “unlawful bargains.” This is especially relevant for those handling bylaw violations or cases involving defendants who may invoke non-traditional legal arguments, like the ‘sovereign citizen’ defence, which the courts (and councils) have experienced a recent surge.
The timely update provides an opportunity for local authorities to refine their practices and enhance the effectiveness of their regulatory enforcement. For councils, the guidelines serve as a good reminder of the importance of exercising these prosecutorial powers responsibly and ensuring that all regulatory prosecutions are based on strong evidence and are in the public interest.
If you need assistance with the application of the updated Guidelines, or prosecutions generally, then please get in touch with our regulatory team via laura.bielby@ricespeir.co.nz.
