This is to clarify and expand on the information published in your story, ‘Legal aid changes proposed,’ in the 10 September edition of your newspaper.
Need for reform
The Chief Justice supports changes to the Legal Aid Law that would embody the requirements of a modern legal aid scheme.
He himself is actively pursuing a number of avenues to support and achieve a more broad-based response to the issues of legal aid. This includes, for example, plans, in his capacity as chairman of the Legal Advisory Council, for the establishment of a Legal Aid Clinic under the auspices of the Law School. Its emphasis will be on training of student lawyers, but the programme will also allow them to provide legal advice and assistance to qualified persons in the preparation of their cases while acting under the supervision of duty attorneys.
Those are just two examples of perspectives and practical approaches to an increasingly complex issue facing the judicature and, ultimately, the people of the Cayman Islands.
As readers will have gathered, this is an issue that has many facets. I will attempt to highlight some of them by responding to and elaborating on aspects of the referenced article based on the report of the Commission reviewing the administration of legal aid through the Courts.
Good value for money
First, your story reflects the report’s findings that the Legal Aid System as implemented by the Courts represents good value for money. One of the means by which the Courts have been able to achieve that is by judges dedicating some of their free time, such as lunch breaks, to deciding on applications. The new proposals in the Report include the appointment of a Legal Aid Administrator to decide on applications (with only appeals going before judges). This will bring a welcome change, but one which will introduce an element of cost that has not previously existed.
Efficiency and transparency
With regard to efficiency, the turn-a-round time for these applications is usually only a matter of days, not weeks. Otherwise the delay would have a general knock on effect on the progress of cases in Court, an issue which has not yet arisen. With respect to transparency, it is important that the public understands that a judge decides on every application and gives written reasons on refusal of a request.
Indeed, the entire process is governed by a set of well established rules formally introduced by the Chief Justice on approval of Cabinet (then Executive Council) in 1997. Given such stringent criteria, it will be difficult to design a more straightforward system and it would be wrong, therefore, for the public to think that the existing system is essentially inefficient or non-transparent.
Legal aid covers criminal and civil cases and provision of expert witnesses and Queen’s Counsel
In addition to these sound operating features, the identified value-for-money attribute may be even stronger than the case the Commission itself has made. It seems the Commission came to that view of the existing system mainly as it relates to expenditure in criminal cases, but the Courts’ legal aid budget must be used to fund civil cases as well. The budget is also used to cover the provision of expert witnesses for the defence of criminal cases, in instances where the Crown relies on experts and where the defence would be at an unjust disadvantage if not allowed to consult and call its own expert to testify.
Expert witnesses for the defence
This provision for expert witnesses for the defence is a requirement based on the fundamental principle called ‘equality of arms’ – meaning, in this instance, that defendants must have equal recourse to the same kind of expertise available to the prosecution. And the Crown does rely on experts very frequently these days, given the increasingly serious and complex nature of cases.
The same principle of equality of arms applies to the provision of aid for Queen’s Counsel. Where a case may be a very serious or complex one, requiring that the prosecution be led by a senior lawyer, the defendant must also be allowed access to similarly competent resources. The presiding judge assesses this on a case-by-case basis.
Costs for civil cases recoverable
Although your article on the Commission’s Report does not acknowledge the fact, it is nevertheless true that the Court does recover significant sums from civil cases as it tends to insist that cases are strong before funding them. Consequently, those legal aid costs are often recoverable. This is true, for example, in the case of an insurance company representing an insured sued in a negligence case. The Legal Aid Rules place the duty on the legal aid lawyer to press for the recovery of his or her successful client’s cost for repayment to the legal aid fund.
In fact, the insistence judges place upon the showing of merit (that is, that civil claims show strong cases) before granting civil legal aid is viewed by some as not in keeping with the Law. The Law states literally that the Court shall grant legal aid to anyone who is sued or wishes to sue in the Grand Court. The view the judges have always taken of such a meaning, though, is that it leads to absurdity and could not have been what Parliament intended. So, for the better administration of the Law, the Court has written into the Rules a requirement for applicants to show the merit of their case as well as to prove eligibility for aid through a ‘means test’.
The merit test is applied to criminal cases for the purposes of appeals only. Anyone charged with a serious offence and who cannot afford to pay a lawyer must be given aid for the first instance trial at least, regardless of the view that may be taken of the merits of his or her defence. What is at work here is another fundamental principle – the presumption of innocence until proven guilty.
Viability of the Legal Aid System
The foregoing measures reflect some of the ways in which the judges have managed to run a viable system. Otherwise, with the huge volume of cases on both the criminal and civil sides each year vying for legal aid, the relatively small budget of $1 to $1.5 million dollars could never do. Had this reality been more firmly represented in the Report, it might have served for better public appreciation of the Legal Aid System.
Several of the Reports’ recommendations for cost saving, including the proposal to limit legal aid to certain kinds of cases, are already in place. For instance, notwithstanding the earlier referenced literal meaning of the Law that would suggest that all civil cases, including divorce proceedings, be funded, the reality is quite different. Divorce proceedings, for example, are typically not funded — unless the personal safety of spouses or the welfare of children is at risk and they otherwise would not be afforded due protection.
Similarly, it must be emphasised that the Law itself schedules categories of criminal offences for which aid must be given. This includes most, but not all, offences for which one could be imprisoned for six months or more. The judges are obliged to follow the Law and do limit the types of cases accordingly.
With regard to the eligibility of cases, the article to which this letter responds noted that neither the Bar Association nor the Chief Justice agrees with the recommendation to narrow the scope of eligible cases, but rather have recommended to the contrary. It must be clear that the Chief Justice’s recommendation as to the widening of the categories of offences goes no further than crime, which carry a minimum of six months’ imprisonment – in line with the Law – and the very recommendation which the Commission itself has adopted.
Cost Capping and Fixed Fees
Among the noteworthy cost-saving proposals are those related to cost capping and fixed fees. These seek, respectively, to cap costs in certain types of cases and to require that long complex cases be put out to bid for a pre-agreed rate or that a fixed fee be imposed.
While there may be some issues with them, these proposals are worth trying. Indeed, in the Chief Justice’s opinion to the Commission, he specifically made the recommendation for capping fees in certain types of cases. What the article fails to explain, however, is that none of these particular recommendations can now be used by way of imposition upon (as distinct from with the consent of) the lawyers, without the Law being changed to allow it. I note this distinction to stress that it would be incorrect for the public to infer that these are cost-cutting measures, which judges have been failing to consider or implement.
Finally, everyone should be aware that the dynamics at play in legal aid make it unrealistic to expect that costs will not increase, though everyone is agreed that they must be contained. For one thing, the more sophisticated the legal system becomes in response to the changing conditions of the State, the more sophisticated will be the nature of litigation – criminal and civil – coming before the courts.
Most importantly, it is critical that regardless of the system that may evolve we do not deprive people of deserved legal aid or cause delay because of too much bureaucracy.
E. Patricia Ebanks
Senior Judicial Public Information Advisor
For the Chief Justice