Legal Aid Review
Published 22nd December 2008, 2:30pm
Members of the public have until 15 January 2009 to comment on the Law Reform Commission's report reviewing Cayman's legal aid system.
The commission, established by the Attorney General, the Hon. Samuel Bulgin, prepared its report after researching legal aid systems in other jurisdictions. It also considered the consultative input it received. The report was tabled in the House on 5 September during the last meeting.
Complaints about the rising cost of legal aid prompted the Mr Bulgin to set up the review. According to law, legal aid is to be provided out of public funds for defendants charged with specified criminal offences such as burglary, rape and murder, who cannot afford lawyers to present their cases in court. It is also provided in civil cases to those unable to bring or defend a legal action for lack of funds.
However, legislators have long complained about the high cost of legal aid, and the fact that too many of the cases are conducted by overseas lead attorneys.
When he tabled the report in September, Mr Bulgin noted, "access to legal aid is an integral aspect of the administration of justice in the Cayman Islands and consequently, the delivery of appropriate and cost-effective legal aid in both the criminal and civil areas is essential."
A modern, transparent system of legal aid enables access to justice to persons in need, and enhances the Islands' image as a "sophisticated, democratic and stable jurisdiction," he added.
Based on comparisons with the cost of legal aid in jurisdictions such as Bermuda, Barbados and Gibraltar, the commission concludes in the report that Cayman's provision for standard cases is not unduly high.
One of the commission's eight recommendations is for the appointment of a legal aid administrator, whose role would be to help improve the current system's efficiency. It also suggests amending legal aid rules to specify who is eligible for legal aid; and recommends both merits and means tests.
It further proposes creating a duty counsel service, for all types of criminal offences to which legal aid applies. Duty counsel could help reduce costs by providing clients with legal advice about their options. For example, it could assist clients in identifying matters where guilty pleas are to be entered, and then represent them on such pleas as well.
The report is available on the Legislative Assembly's website, www.cila.ky, under House Business and Presentation of Papers and of Reports.
SPEAKING NOTES BY THE HON. ATTORNEY GENERAL
The Review of the Legal Aid System in the Cayman Islands
Final Report # 4
Madam Speaker Assembly, I rise to present to this House Final Report # 4 on The Review of the Legal Aid System in the Cayman Islands, as conducted by the Law Reform Commission.
- Madam Speaker this report dated 15th July 2008, seeks to appraise this Honourable House of conclusions as a result of the research undertaken on the operations of the legal aid systems in other jurisdictions and from the consultation process.
- In 2004, Madam Speaker, in response to complaints regarding the rising cost of legal aid in the Islands, the Attorney General directed the Legislative Drafting Department to review the existing legislation and prepare needed amendments. In 2005, the Law Reform Commission (the Commission) was requested to carry out further consultation and more in-depth research.
- However, concerns regarding legal aid continued to be the subject of debate in this Legislative Assembly. Of particular concern, Madam Speaker, are the perceived high costs and whether or not too many legal aid cases were being conducted by foreign lead attorneys. Therefore, the Commission was requested to give priority to these issues and prepare a report on its findings.
- In the Commissionís final report it properly notes that the primary purpose of a legal aid system is to provide legal assistance to persons charged with certain offences or wishing to bring or defend a legal action but are unable to afford to do so because of lack of funds. Further, Madam Speaker, that access to legal aid is an integral aspect of the administration of justice in the Cayman Islands and consequently the delivery of appropriate and cost effective legal aid in both the criminal and civil areas is essential. The existence of a modern and transparent system of legal aid not only provides access to justice to those in need, but enhances the image of the Cayman Islands as a sophisticated, democratic and stable jurisdiction.
- Again, the Commission noted that concerns seem to focus mainly on the high costs and the fact that too many of the services are being provided by leading foreign counsel. However, the Commission considers that the present system of provision of legal aid services in general offers good value for money. Though it may not necessarily resulting in reduced costs, the Commissionís view is that a more transparent and efficient administration of legal aid could serve to more readily demonstrate that funds are being appropriately spent, thereby satisfying the objective of accountability inherent in the Legislatorsí concerns.
- Madam Speaker, the Commission noted that there were a number of variables which made comparison to costs in other jurisdictions difficult. Some of these jurisdictions do not have a structured legal aid scheme. The Commission nevertheless did examine the cost of legal aid in Bermuda, Barbados, Gibraltar as well as other jurisdictions and concluded that it is not persuaded that the costs of legal aid for standard cases in the Islands are unduly high.
- Madam Speaker, the Commission considered a range of issues as being critical to the determination as to whether the legal aid system was functioning with efficiency. These are whether:
- the legal aid system may be reformed simply by improving the investigative and assessment process relating to the grant of legal aid;
- the system should be administered by a court-based legal aid administrator and other support staff;
- it would be more cost effective to establish other means by which legal aid could be provided such as by- (a)a legal aid clinic; (b)a Public Defenders Office; (c) a mixture of clinic, public defender and the private bar;
- the recovery system, where certain persons who are granted legal aid are liable to pay the legal aid fund back, should be improved;
- legal aid fees are too high and should be capped; and
- pro bono work should be mandatory in order to give the public access to more legal services.
- The Commission concludes, Madam Speaker, that while there is a positive need for change to the system, every effort should be made not to increase administrative costs in so doing. In many areas small but important changes would make a significant difference to efficiency.
- 1.)Appointment of a Legal Aid Administrator - It is recommended that the current court administered model of legal aid be maintained in order not to add additional administrative costs but that efficiency be improved by the appointment of a specially designated Legal Aid Administrator. This Administrator, Madam Speaker, should have adequate support staff and resources to administer legal aid. The Law presently provides for all applicants to be means tested and for probation officers to assist in providing information on the means of applicants. Madam Speaker, the present legal aid office of the Courts does not have the man-power to carry out such tests as it consists of one staff member only. Madam Speaker, the proposed Administrator would be part of the judicial administration, but would be the person solely responsible for deciding on legal aid certificates. Applicants who are dissatisfied with a decision of the Administrator would have a right of appeal to the Grand Court. Further duties of the Administrator, Madam Speaker, would include the preparation of the roster of attorneys and establishing guidelines, procedures and requirements pursuant to which legal and other services may be made available under the Law.
- 2.)Amendment to Legal Aid Rules - Madam Speaker, it is recommended that following the Bermuda model, these Rules be made more precise as to who is eligible for a grant of legal aid. Examples include the expressed requirement for a merits test. The Commission reports that local stakeholders are against such a test on the basis that cases should not be prejudged. However, the research of the Commission shows that many jurisdictions do use a merits test in determining civil legal aid. The Commission is of the view, Madam Speaker, that the use of merits would be invaluable in determining eligibility and preventing abuse of the legal aid system and recommends the revision of the Law and Rules to expressly provide for this. The Commission is also of the view that the Law should be reviewed to incorporate a comprehensive means test for each applicant to be conducted by an independent assessor. While there is provision for a means test under the Rules, Madam Speaker, they do not presently define or provide a method of calculating the disposable capital or disposable income of an applicant. Such a test should set realistic limits in order to ensure that those on relatively low incomes are not disqualified from receiving legal aid.
- 3.)Required Contributions - Madam Speaker, the Commission recommends that the Legal Aid Law and Rules be amended to make it clear that contributions may be required of persons above a certain specified income, that the Government may require a charge on property as a condition of legal aid in certain circumstances and that such contributions will be recoverable and enforceable by government through the courts. Madam Speaker, while there are presently general provisions there are no guidelines, as in some other jurisdictions, as to the amounts which should be repaid. The Commission was told that the readily ascertainable lack of means on the part of most defendants has lead to the development of a general practice not to require contributions in criminal cases although this is regularly done for civil cases. The Court Administrator has confirmed that the system for the recovery of contributions is not vigorously enforced although new guidelines for enforcement of the recovery process have recently been put in place by the Court.
- 4.)Establishment of a Civil Legal Aid Clinic - Madam Speaker, the Commission has been advised of the proposed establishment of a legal aid clinic connected to the Cayman Islands Law School and notes that the costs of civil legal aid could be reduced by the introduction of such a clinic modelled along the lines of those which are operated by the Hugh Wooding and the Norman Manley Law Schools located in Trinidad and Tobago and Jamaica respectively.
- 5.)Tender Process and Fixed Fees - A significant conclusion of the Commission, Madam Speaker, is in the area of complex cases. It concluded that notwithstanding the fact that local legal aid costs are not excessive, costs can be better contained by capping the costs of long and complex cases. This could be effected by implementing a tendering process and selecting specially qualified attorneys to undertake such cases. The cases would be managed through individual case contracts based on case plans and estimates agreed to by the Legal Aid Administrator after consultation with the attorneys. The alternative, Madam Speaker, would be to impose fixed fees for such cases and provide that there is a right to request a review of a decision for remuneration only in extraordinary or exceptional circumstances. The Commission also believes that fixed fees could be implemented for duty counsel at police stations.
- 6.)Staff for Taxation of Costs - Madam Speaker, the Commission is of the opinion that in order to ensure that lawyers are being appropriately paid (i.e. not being overpaid or underpaid) for their services that the courts should have staff dedicated solely to the taxing of legal aid costs.
- 7.)Duty Counsel - Madam Speaker, the Commission recommends that the legal aid system can be enhanced by providing for the appointment of duty counsel for all types of criminal offences to which legal aid applies.The duty counsel service would help reduce the high costs of administering criminal justice by assisting clients to identify at the earliest possible opportunity, matters where a plea of guilty is to be entered, and then representing them on their plea of guilty. Duty counsel would also be able to provide legal advice on available legal options.
- 8.)Madam Speaker, the Commission has considered but does not recommend making pro bono work mandatory and is of the view that legal aid is an issue of social justice and therefore a matter for society as a whole and not any single profession. No recommendation by the Commission has been made on the issue of requiring contributions from Law Firms. However, government is going to require a further look at these two issues.
In conclusion, Madam Speaker, by tabling of this report the Government is seeking input from Honourable Members of this House as well as any further suggestions from the general public on any potential reform of the Legal Aid system in the Cayman Islands as presented in this Report by the Law Reform Commission.
Samuel Bulgin QC, JP Hon. Attorney General