Defence lawyers speak out on legal aid

The Criminal Defence Bar Association represents criminal defence lawyers who work in the criminal courts of the Cayman Islands. Needless to say we support any proposal which broadens access to justice for those of limited means.

On Monday night, 12 October the Government pushed through a motion which will fundamentally change the allocation and provision of legal aid to those who cannot afford it.

No-one, not even the Government’s own legal advisor, the Attorney General, appears to have been forewarned. The far-reaching proposal was made and passed apparently without any notice to the opposition or any consultation with key stake holders such as the Chief Justice, the judges and magistrates of our criminal courts, the Attorney General, the Law Society, the Criminal Bar Association, the Clerk of the Court, the Human Rights Committee, or our own organisation.

The proposed reform appears to create an entity called the ‘legal aid office’ which is a mixture of a public defender’s office and legal advice clinic. The people of the Cayman Islands should be aware that such a proposal is entirely contrary to the advice of the Government’s own legal advisory body, the Law Reform Commission. In 2007 that Commission was directed by the Government to conduct a substantive review of the legal aid system in the Cayman Islands. After significant and exhaustive consultation, in July 2008 the Law reform Commission reported back to Government that:

While the Commission agreed that the containment of excessive legal aid costs is in the public interest the Commission considered that the present system of provision of legal aid services by the private bar in general offers good value for money ‘

A public defenders scheme would involve significant expense, going beyond just the salaries of the lawyers, to include secretaries and paralegals expenses which the private practitioners must currently assume as part of their own costs of doing business. The current legal aid system, the judicare model, provides a high calibre of service and is far less expensive ultimately than a public defender’s scheme.’

A Legal Aid clinic would not be appropriate to provide defence in criminal cases

Plainly, any suggestion that the LRC’s Report supports the Government’s new proposal is wrong. The full report can be read on the Legislative Assembly website at http://www.legislativeassembly.ky/pls/portal/docs/PAGE/LGLHOME/BUSINESS/PAPERS/ARCHIVE/20082009/2008200902/REPORTS/FINALLEGALAIDREPORTNO4.PDF

Whilst we have not yet been provided with any of the proposed detail of the new scheme and it is, therefore, very difficult for us to comment upon an unknown commodity, we understand that the new office will be offering defence in criminal cases, advice and representation on labour law matters, landlord and tenant disputes, gender violence, family law, immigration issues and general civil advice. Whilst we applaud the commitment to offer free legal advice to a broader cross section of matters, we cannot fathom how the objectives are achievable on the figures which have been suggested in the media.

Crucially, we fear that as a result of these reforms, the standard of representation for those accused of grave crime will suffer, scrutiny of the police and prosecution will be undermined, and the innocent will be placed at greater risk.

Particularly alarming is the transfer of the administration of legal aid funding away from the Chief Justice to the Executive. The administration of criminal justice by an independent judiciary is the cornerstone of a civilised society and democratic first-world nations. The provision of high calibre representation for those accused of grave crime is a front-line service. This reckless reform damages the reputation of these Islands, and the consequences naturally extend beyond those who are directly working in, or are affected by, our criminal justice system.

The Cayman Islands Criminal Defence Bar Association

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