The Cayman Islands legal aid system should be operated more efficiently and transparently, with caps placed on how much defence attorneys can be paid in certain cases and requirements for those who receive legal assistance to pay for some of it on their own.
Those are some of the recommendations made by the Law Reform Commission which spent more than a year reviewing the system that provides counsel for defendants in criminal and civil court cases who cannot afford to pay attorneys.
‘The access to legal aid is an integral aspect of the administration of justice in the Cayman Islands,’ the commission’s report stated. ‘Delivery of appropriate and cost effective legal aid in both the criminal and civil areas is essential.’
What government spends to provide legal aid lawyers has been a contentious subject for a number of years. In the last two years, lawmakers have essentially left the legal aid budget under-funded at the beginning of the fiscal year, and have been forced to approve emergency funding later in the year to ensure defence lawyers actually get paid.
The legal aid budget for the last fiscal year was $1.85 million. However, for the current year government has only approved $937,000, about half of what the court system had requested.
The Law Reform Commission pointed out in its report that the cost of public prosecutions in the current year was budgeted at nearly $3.2 million. Last year, prosecutions were budgeted at $2.1 million.
‘The commission considers that the present system of provision of legal aid services by the private bar in general offers good value for money,’ the review read.
The commission rejected suggestions that Cayman should create a Legal Aid Commission or public defender’s office, which it stated would merely add to the costs of legal aid. However, it has supported the hiring of a specially created position within the courts of Legal Aid Administrator, who would be solely responsible for deciding on who should receive legal aid.
Any decisions by the administrator could be appealed to the court, the commission suggested.
It was also recommended that contributions should be required of defendants or civil litigants who earn above a certain income. Those contributions could be collected, among other methods, via a charge on property.
The actual process by which legal aid is awarded also came under scrutiny by the Law Reform Commission, which stated that Cayman should seek to limit the types of offences legal assistance can cover.
The commission suggests limiting legal aid expenses to certain cases, including those where: the defendant could lose their liberty, livelihood or reputation; those that involve substantial questions of law; and cases where the defendant might not understand legal proceedings.
Chief Justice Anthony Smellie and the Cayman Islands Criminal Defence Bar Association did not agree with this recommendation and have recommended widening the scope of cases in which legal aid might apply.
Rules regarding the award of legal aid were found by the commission to be too general.
‘The (Legal Aid) Rules (1997) neither define nor provide a method of calculating the ‘disposable capital’ or ‘disposable income’ of an applicant,’ the commission’s report stated. ‘These provisions are imprecise…greater clarity could be established by the provision of additional details on these concepts.’
The commission did not find that legal aid costs in Cayman were excessive. It encouraged attorneys and law firms to look at whether certain volunteer or pro bono work would be feasible, although some firms have said they already provide legal aid services at a financial loss as a community service.
No suggestion was made in the report that attorneys should be forced to work for free.
There was a recommendation that the court consider capping legal aid costs in certain long, complex cases. For instance, a tendering process could be implemented with the bid winners agreeing to work the entire case for a pre-agreed rate. Another suggestion was that fixed fees could be imposed on such cases, with a review of those set fees only in exception circumstances.
The rate for legal aid services in Cayman is $135 an hour. Comparable legal aid rates in Bermuda start at $160 an hour and can range up to $224 per hour. In the private sector, the commission stated rates for junior counsel start at $250 an hour, while Queen’s Counsel hourly pay might easily double those rates.
However, other jurisdictions spend much less on legal aid. The British Virgin Islands, for example, spent just $79,000 in one year on legal aid while Anguilla has no identifiable legal aid budget.
The Criminal Defence Bar Association and Complaints Commissioner John Epp, who assisted the Law Reform Commission with its review, warned that comparing legal aid costs between jurisdictions was likely to be misleading since ‘most overseas territories do not have a tradition of providing a structured legal aid scheme.’