Legal aid funding used up

For the fourth year running, legal aid funding has run dry half-way through the financial year after legislators provided only half of the money needed.

Legal aid lawyers have not been paid since mid-December, and in a repeat of previous years, legislators will now have to issue an emergency allocation if they want to prevent criminal prosecutions from grinding to a halt.

smeilie legal aid

Chief Justice Anthony Smellie

Chief Justice Anthony Smellie acknowledged the ongoing funding crisis at the opening of the Grand Court last week.

‘As in the case of the preceding four years, the budget submissions for 2008/09 were relegated to one half and, not surprisingly, therefore, half way through the fiscal year, as occurred in the past, the allocation has been spent,’ Mr. Smellie said.

‘We now face the same crisis we faced last year with our hard-working and dedicated criminal defence bar being owed fees which they can ill-afford to have outstanding.’

Many lawyers blame the legislators for the problem. In July 2008, legislators approved only $937,000 of the $1.875 million court administrators had said would be required to fund legal aid services.

Legislators have maintained that legal aid is costing too much and have complained that too many services are being provided by foreign lawyers.

But a Law Reform Commission study last year concluded that the system represented good value for money, describing legal aid as ‘essential to a sophisticated democratic and mature jurisdiction.’

Attorney and Deputy Chairman of the Criminal Defence Bar Association Lloyd Samson said the $135 per hour lawyers receive for legal aid work is only about 40 per cent of what most would normally charge.

Some law firms have previously said they offer legal aid services at a financial loss, and only do it as a community service.

Mr Samson said the $135 per hour going rate has been frozen since 2003, despite government fees levied on lawyers to practice in Cayman having risen by between 33 and 50 per cent over the same period.

‘There exists in some quarters a mistaken belief that those attorneys who undertake legal aid work are improperly earning fortunes at the public expense,’ he said.

‘This could not be further from the truth. The small pools of attorneys (perhaps 15 to 20) who remain willing to undertake legal aid work do so at dramatically reduced rates when compared to the private sector.’

Mr. Samson said many legal aid lawyers are being forced to forego payment for up to one-quarter of the year, adding that other professionals would find it ‘inconceivable’ to be expected to work under such circumstances.

During his address Wednesday, Mr. Smellie said the ongoing funding crisis will only discourage lawyers from undertaking legal aid work, a sentiment that Mr. Samson echoed.

‘In any civilised society it is essential that those unable to afford a lawyer are not disadvantaged in the protection or enforcement of their fundamental rights,’ he said.

‘As such, it is the Government’s duty to provide the services of an attorney, in appropriate and prescribed cases, to persons who are unable to afford one. Any failure to do so would violate the principles of equality before the law and due process under the rule of law.’

If Cayman wants to continue to be seen as a sophisticated, civilised, stable and democratic first-world jurisdiction, then the government’s spending on legal aid will have to keep pace with the increased amount it is spending prosecuting criminal cases, Mr. Samson said.

Under Cayman Islands Law, if someone is determined to be indigent, the judge or magistrate presiding over their case will appoint an attorney to represent them.

Generally, legal aid in criminal matters is available only for Grand Court cases, or in those crimes punishable by a sentence of 14 years or more.

Legislators have complained that the cost of legal aid has increased in recent years, although Mr. Smellie has said that is because more people are coming before the courts.

Legal aid costs tripled between 1999 and 2007, while the number of people coming before criminal courts during that period increased by 77 per cent.

Mr. Smellie told the Caymanian Compass in June 2007 that about 90 per cent of criminal defendants qualify for legal aid in Cayman’s courts with many coming from poor backgrounds, or having been in prison before and being unable to hold a job.

Financial Secretary Kenneth Jefferson told the Compass that no paper had come before Cabinet regarding the grant of additional funds to resolve the impasse as of Friday afternoon.

There were 173 applications for legal aid in criminal cases in 2008, only one more than the 172 received in 2007. Applications for assistance in civil cases jumped from 152 in 2007 to 223 last year.