Amid concerns from lawmakers about how much the country is spending on legal aid, Chief Justice Anthony Smellie has promised a full review of the system which provides attorneys for poor defendants.
‘I’m going to have this whole question of legal aid looked at from every perspective we can identify,’ Mr. Smellie said during a telephone interview with the Caymanian Compass.
After courts staff completes the study, Mr. Smellie said the results will be forwarded to the Law Reform Commission for recommendations on what changes should be made. The court review is expected to take two or three months.
The Chief Justice rarely does interviews with reporters. However, he said in this case he felt it was important the legal aid issue not be misunderstood.
Several Members of the Legislative Assembly have questioned why the country’s costs to provide lawyers in criminal and civil cases have more than doubled this decade.
According to figures provided by Mr. Smellie, legal aid costs have actually tripled within the past 10 years. In 1999, Cayman’s budget for legal aid was $556,818. This year that budget is expected to be just below $1.8 million, including supplemental spending.
But the Chief Justice said the number of criminal charges coming before the courts during that same time has gone up by some 77 per cent. In 1999, Cayman Islands courts saw 4,929 criminal charges. Last year there were 8,729 charges.
Under the Legal Aid (Poor Persons) Law approved by the legislature, the country is required to provide assistance to those who qualify for it. A means test is administered to determine that person’s income, expenses, and any property owned.
Mr. Smellie said more than 90 per cent of all defendants in criminal cases qualify for legal aid since many come from poor backgrounds or have been in prison before, and couldn’t hold a job.
‘The vast majority have previous convictions,’ he said. ‘It’s futile trying to make out their financial position.’
According to the law, similar assistance is to be provided in civil cases. However, Mr. Smellie said the court system has modified that a bit. Currently, legal aid will be granted only in divorce cases where the welfare of children is at risk or a there’s threat to a spouse. In many of those cases, the applicant is eventually required to pay back their contribution from the legal aid fund.
‘We try to keep the expenditure to a minimum, to ensure that the small fund that we have is available for the primary need, which is to give people representation in criminal cases. That must take priority.’
The going pay rate for legal aid lawyers since 2003 has been $135 per hour. But some local lawyers said that fee considered out of context might also be misleading.
‘The figure is. . . about a third of what most lawyers would charge for doing privately paid work,’ said attorney James Austin-Smith. ‘There’s a perception of fat-cat lawyers making a lot of money (doing legal aid work). The reality is actually quite different.
‘A lot of the firms that do legal aid work do it almost as a public service, and in some cases have a loss because by the time you take in overhead, the offices, secretarial services…it’s not that much money.’
Both local attorneys and the Chief Justice said Cayman has a severe shortage of lawyers available for legal aid work. Mr. Smellie estimated only 10 to 12 lawyers routinely do legal aid work in criminal cases.
Mr. Smellie also stated in a letter written to local media outlets that the quality of the defence should be similar to what the prosecution will bring against defendants when trying a case.
‘In serious and complex cases where the Crown is represented, often by more than one highly-skilled and experienced prosecutor; it follows…that the accused persons should be afforded representation by counsel of comparable competence and experience.’
The court and the Law Reform Commission will now consider the most efficient manner in which to do that.
One suggestion lawmakers offered is the creation of a public defenders office in Cayman. However, Mr. Smellie said a previous study by the commission estimated the administrative costs for that at $400,000 before any lawyers were paid.
The Chief Justice also said that law commission review put the costs to run Bermuda’s legal aid system at $1.7 million…nearly the entire budget for legal aid in Cayman.
In general, Mr. Smellie said he felt cost comparisons between Cayman and other British Overseas Territories such as Anguilla or the British Virgin Islands were unfair.
During the LA’s debate on the issue, Attorney General Sam Bulgin said the BVI spent US $79,000 a year on legal aid. Mr. Bulgin said Anguilla had no identifiable legal aid budget.
‘The level of sophistication we have reached in our development, in our legal system, in our expectations, in our respect for human rights….I do think we are more comparable with Bermuda,’ Mr. Smellie said.
Cayman’s legal aid budget for the upcoming fiscal year, which starts 1 July, is $919,000, about half the total amount that was approved in the current year’s legal aid budget.
The initial legal aid budget for this year was slightly under $1.2 million. Lawmakers were asked for a $625,000 increase to that after some legal aid attorneys went one or two months without being paid.
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