A preliminary review of the Cayman Islands legal aid system found that service was ‘essential to a sophisticated democratic and mature jurisdiction.’
However, the preliminary findings of the Law Reform Commission stated that there may be problems with the way the system is now being administered.
‘While the complaints from the legislative and executive arms of government focus mainly on excessive costs (of legal aid) and the fact that too many of the services are being provided by foreign counsel, the main issue may…be the need to improve the administration of legal aid services,’ the commission’s annual report stated.
Legal aid is the system through which the government provides representation to indigent defendants in criminal court proceedings, and in some civil court proceedings. It has been the subject of controversy over the last several years in Cayman.
Spending on legal aid services topped $1.8 million in the budget year that just ended. Government budgeted less than $1 million dollars for legal aid in the current fiscal year, but it’s expected that money will run out well before the end of the year.
The going rate for legal aid lawyers is $135 an hour, which defence attorneys have said is less than half what they would normally charge for services. Some local law firms provide legal aid services at an overall financial loss as a community service.
Cayman Islands Chief Justice Anthony Smellie initiated a review of the legal aid system last year, but final recommendations for any changes to the system have not been made.
In its draft report, the Law Reform Commission stated that eligibility requirements for individuals who receive legal aid are not specific enough in the current law.
‘The wording of the eligibility criteria in the Legal Aid Rules (1997) allow for a wide exercise of discretion in what is taken into account in determining the assignment of legal aid,’ the report stated.
Applicants for legal aid must submit to a means test which is administered by the court to determine whether they qualify for legal help. Chief Justice Smellie has previously said that roughly 90 per cent of defendants in criminal cases end up qualifying for legal aid.
The commission suggested that a more exact method of defining disposable income of a legal aid applicant should be established.
Also, the commission’s report stated that contributions might need to be required of those who are above a certain income level, even if they are not able to afford the entire legal bill.
‘The government may require a charge on property as a condition of legal aid in certain circumstances….and such charge will be enforced by the Attorney General in a court of competent jurisdiction,’ the report read.
Although it did not make a specific recommendation on whether Cayman should create a public defender’s office for legal aid cases, the commission stated many western countries use a mixture of salaried staff, community law clinics, and private sector lawyers to provide legal aid services.
Free legal representation, often referred to as ‘pro bono’ work was discussed as another possibility to reduce legal aid costs. However, the commission stated Cayman should not make such work mandatory, rather it recommended legal associations ‘aggressively promote’ pro bono work to their members.