Chief Justice Anthony Smellie and Attorney General Sam Bulgin plan to meet soon to consider a new approach to Cayman’s legal aid system.
Speaking of people’s need for legal aid in court cases and the economic realities of providing that aid, the Chief Justice devoted a significant portion of his speech to the subject at the opening of the 2005 Grand Court session Wednesday.
Legal aid has always been a difficult issue to deal with, he said. ‘While resources are scarce and budgetary allocations must be rigidly controlled and justified, there can be no forecasting with any real precision from one year to the next, how many cases will arise to justify the grant of legal aid or just how involved and time consuming the cases will become.’
Budget estimates are therefore projected according to the needs of preceding years, the Chief Justice explained.
‘Recognising the limitations, which attend the entire national budgetary process, we also apply strict requirements to the grant of legal aid,’ he pointed out.
Only in serious criminal cases are grants routinely made ‘and even then only after being satisfied that the defendant cannot afford to pay for his own representation. Not surprisingly, however, that happens to be so in a vast majority of criminal cases. With the liberty of the subject at risk, there is simply no alternative but to grant legal aid in those cases.
‘Provisions for criminal cases become even more difficult to plan when the exceptionally involved and lengthy fraud or money laundering case arises. When legal aid must be granted in such a case, it can by itself consume a great portion, if not all, of an annual budgetary allocation.’
For civil cases, the Chief Justice continued, the approach to granting legal aid is necessarily even more stringent. The applicant must show need, but ‘there must first be a clearly meritorious case which would otherwise not come before the courts and so result in a miscarriage of justice if legal aid is not granted.’
Since the merits of the case must first be shown, it will also be expected that the costs will be recovered by the person receiving legal aid, so there is a requirement that the attorney assigned must seek to recover costs from the other side for the benefit of the legal aid fund or else a contribution paid back by the aided party from any award he or she recovers.
Simple divorce cases will not be aided, the Chief Justice said. ‘It is our experience that even where parties do not have funds immediately available, they could often bide their time while making some suitable arrangement with their attorney over the fees.
‘However, as it stands now, the law does not exclude such cases from the grant of legal aid. Indeed on one construction of the law which has been advanced, all persons wishing to bring or defend any civil action before the courts and who cannot afford a lawyer, must be legally aided.
‘That construction does not fit with the economic realities and, therefore, particularly with divorce cases, the practice is to grant aid only in an immediate case of need, such as in a case where a child is at risk or there is an immediate concern for the safety of the applicant from threats of domestic abuse.’
Notwithstanding this strict approach to legal aid, the Chief Justice indicated, when Judicial Administration puts in a budget request for legal aid, ‘the initial vote over the past many years has been routinely allowed at just about one half the amount submitted.
‘Inevitably, therefore, request for supplementals have had to be submitted, with the result that the subject of legal aid gets debated not once, but twice each year before Finance Committee.’
The Chief Justice said requests for additional funds have never been ultimately denied, but the second request was often naturally met with the scrutiny that attends any further request for funds. The fact that the initial request was not fully granted was not always at the forefront of Finance Committee deliberations, he said.
‘Such difficulties attending the legal aid system now demonstrate the need to modernise and rationalise our national approach to the subject,’ the Chief Justice asserted.
‘Whereas until now it has been viewed perhaps somewhat as an area of discretionary expenditure, legal aid is no less essential than any other commitment of government in a state such as ours which rests firmly upon the rule of law and committed as we are to the proper administration of justice.’
He said these views were shared by the Attorney General ‘and, indeed, I am sure, ultimately by all the other members of government, despite the need to control expenditure as is so consistently recognised by the debates on the subject over the years.’
It was at this point he welcomed the agreement reached with the Attorney General ‘that we should consider a new approach’ and announced that ‘we are shortly to meet to take the matter forward.’