A Matter of Justice
Published 30th May 2007, 2:47pm
While the subject of legal aid remains under review, some response from my office is required now. Otherwise, recent commentary might be allowed to exert a disproportionate influence on the public's perception of the subject and upon the final outcome.
An important starting point is the fundamental principle of our justice system known as the presumption of innocence. All persons who come before the Courts charged with criminal offences are presumed to be innocent until proven guilty.
This means that accused persons have the right to defend themselves and to require the prosecution to prove their guilt.
The prosecutions' cases are always presented by trained lawyers and the more serious the case, the more skilled and experienced are the prosecutors who represent the Crown.
Our system of justice would therefore become a mockery, if persons who seek to maintain their innocence and who cannot afford to hire their own lawyer, are not afforded the means by the State to get representation. This is why legal aid becomes a fundamental human right.
In serious and complex cases where the Crown is represented, often by more than one highly skilled and experience prosecutor; it follows for the same reasons that accused persons should be afforded representation by counsel of comparable competence and experience. This is a principle which, in International Human Rights Law, has become known as "Equality of Arms". I will have a bit further to say on this aspect below.
It is also fundamentally important to consider what our Law provides in relation to legal aid. The Poor Persons (Legal Aid) Law provides that all persons wishing to take or defend an action in the Grand Court shall be provided with legal aid. While it is not the sensible view to take of the law, one school of thought is that such persons do not need to show either that they cannot afford their own lawyer or that they have a good arguable case or defence. That school argues that the law is mandatory and that legal aid is compulsory.
But that would be absurd; so the Courts have developed legal aid rules which impose certain criteria - (i) that applicants must show they do not have the means ("the means test"); and (ii) that the case must be a meritorious case (when it is a civil case).
Of course, when the person is defending in a criminal case, as I have explained, the presumption of innocence demands that he or she must be allowed representation once the means test is satisfied. There can be no requirement for them first to show that they have a good defence to the criminal charge, as they are presumed to be innocent.
It is only when set against the foregoing essential background, that the discussions about the costs of legal aid can sensibly take place.
The number of criminal charges coming before the Courts has increased overall from 4,929 in 1999 to 8,729 in 2006. Relative to this, the legal aid expenditure (for all categories including civil cases) has increased from $556,818 in 1999 to $1.2 million in 2006/07. This has happened while more than 90% of defendants in criminal cases continue to qualify for legal aid.
Speaking in broad terms, this shows that expenditure has not increased relative to the number of cases in a disproportionate way. A full statistical examination of the subject will soon be available.
The relative size of expenditure to the number of cases must also be considered in light of the fact that the number of serious cases, involving the need to appoint leading counsel (and sometimes expert witnesses for the defence) has increased. The increase in expenditure has been contained in this regard because Queen's Counsel must accept their brief at the same standard rate of $135 per hour, as the junior counsel. (The going commercial rate for lawyers of more than 10 years experience in Cayman is now between $350 - $400 per hour.) A further implication of all this is that the legal aid allocation for civil cases has had to be kept to a minimum in order to give the priority which they demand, to the criminal cases.
This has also minimized the availability of funds for divorce cases. Only where lack of means to hire a lawyer and the welfare of children is at risk or there is threat of violence to a spouse, will a grant be made for a divorce case. Often, even in such cases; the applicant is nonetheless required to pay back a contribution to the legal aid fund. This is another pragmatic rule of practice which the courts have developed, notwithstanding the broader and more permissive wording of the Law.
Justice delayed is justice denied. It is therefore unacceptable that accused persons, especially those in custody, should have to languish for long periods of time before knowing their fate. Nothing is more abhorrent to civilized notions of justice and fairness than for an innocent accused person to have been incarcerated for a long time before being acquitted.
This means that there is also an obligation on the courts to ensure a proper trial within the earliest possible time frame. This concern to do justice in a timely manner has resulted in our doubling the number of trials within the calendar year and so, naturally, increasing the demand for legal aid over the calendar or budget year.
Questions have been raised whether we are strict enough in our application of the means test: for instance; whether certain defendants who have been allowed legal aid - including for Queen's Counsel - do not in fact have the means to pay for their own defence. Enquiries by my office have not substantiated such concerns. Moreover, it is expected that if the prosecution or Police have information of that kind, the prosecution would itself be duty bound to raise it with the Court to prevent abuse of the legal aid system. That, in my own long experience with these matters, has never happened.
There are many other facets to this seemingly arcane subject of legal aid which need to be considered now that there is a call for review of the system. It is my intention within the next 2-3 months, to present a fully documented and rationalised proposal to the Executive, through the Law Reform Commission, for such reforms as might be considered necessary and practicable.
In concluding this interim contribution to the current public debate on the subject, I must note that comparisons with other jurisdictions can be odious and inappropriate when taken without the proper parameters.
Our circumstances are so very different from the BVI and Anguilla as to make comparison with the costs of their Legal Aid System, in my view, inappropriate. More comparable in my view is the situation in Bermuda where, at $1.7 million; the annual administrative costs alone of their legal aid system is the equivalent of our entire legal aid budget.
Their overall costs, including payments made to the private sector legal aid lawyers runs substantially higher.
Our legal aid system involves no specially dedicated administrative costs (apart from a legal aid officer who also carries out other important duties within the Courts); is managed by the Magistrates and Judges in keeping with the Law and the Legal Aid Rules; in a seamless, administratively cost-free and efficient manner.
In a discussion paper which the Law Reform Commission has published, it is noted that the new administrative and overhead costs are estimated at a minimum at $400,000 per annum. One should also expect less efficiency and more delays to trials which will have to await the more bureaucratic determination of whether a defendant will be allowed legal representation. A new and separate bureaucracy, to justify its own existence, would also likely grant legal aid to fewer persons. That is hardly an objective which a Society like ours, which so justly prides itself on its well respected system of justice should readily embrace.
Looking to the future, we will have to find creative and acceptable ways of ensuring that legal aid costs do not become an overly onerous charge on the public purse. Considerations will need to be given to other systems such as a Public Defenders office or a requirement for more pro bono work by the profession as a whole. At the moment, however, it would be wrong for the public to be left with the impression that waste or mismanagement characterizes the existing system.
- Legal Aid is a fundamental human right of persons who cannot afford to pay for their own defence.
- The Legal Aid (Poor Persons) Law states in mandatory terms that all persons wishing to take or defend actions in the Grand Court shall be provided with legal aid.
- Taking a pragmatic view, the Courts have sought to limit this only to cases of genuine need and in civil cases only when there is merit in the case.
- The increases in costs are directly related to increases in criminal cases and also the fact that the Court has been running two Grand Court cases simultaneously to prevent backlog.
- Queen's Counsel (whether from the U.K. or elsewhere) are paid at the same standard rate as local lawyers; that is $135 per hour. The commercial hourly rates prevailing in local firms for experienced attorneys range from $350 - $400 per hour.
- Queen's Counsel are appointed only in complex cases where the Crown's case is presented by senior prosecutors and where the local lawyers express the need for more experienced lawyers to lead them.
- A comparable jurisdiction such as Bermuda incur substantially higher costs.
- Legal aid is not normally granted for divorce cases unless there are children at risk or a spouse under threat of harm. Contributions are usually required to be paid back to the Fund.
- Administrative costs alone to establish a separate legal aid administration have been estimated at $400,000.00 (which would be in addition to paying the lawyers). There are no separate administrative costs with the system operated by the Courts.
- A proposal for any necessary improvement to the system will soon be presented by the Chief Justice.
BY THE HONOURABLE CHIEF JUSTICE
May 28 2007