The Human Rights Commission notes the developments last week with respect to the funding of Legal Aid and in particular criminal defence.
As it is clear that these proposals have not yet been finalised, the HRC is cautious about making any comments until it has had an opportunity to review and consider the final terms of the new scheme and its associated laws.
However, given the level of public concern and debate generated by the proposals, the HRC feels it is appropriate to make a number of general comments with regard to the public funding of legal services.
1. Rights under the Constitution and the incoming Bill of Rights The Constitution (Article 7) will provide that at a minimum everyone charged with a criminal offence has the right to a fair trial and, amongst others, the following rights:
? The right to be presumed innocent until proven guilty. This is one of the most fundamental tenets of any civilised criminal justice system and the HRC is confident that the reasoning behind it is so obvious as to require no explanation.
Last Thursday, the Leader of Government Business was quoted [by Cayman News Service] as saying that “the country should not have to pay to get criminals off the hook” and that he was “no longer prepared to vote money for lawyers to defend people who shoot up our children”.
The HRC believes that, in the light of those statements, the government should reaffirm its commitment to the fundamental principle that all defendants have the right to be presumed innocent until proven guilty.
? The right to have a legal representative provided at public expense through an established public Legal Aid scheme if s/he does not have sufficient means to pay for legal assistance and the interests of justice require it.
During Thursday’s interview the LOGB was quoted as saying “whilst the system of jurisprudence might say everybody deserves a fair trial, nowhere does it say that the country should pay for it.” In fact, the new Constitution makes specific provision for the provision of legal representation at public expense. This particular constitutional provision is based on principles enshrined in the European Convention on Human Rights. The statement made by the LOGB was therefore incorrect as a matter of law.
This general right to a fair trial (and the specific rights referred to above) are enshrined in Article 6 of the European Convention on Human Rights. Currently, residents of the Cayman Islands can enforce these rights through petition to the European Court in Strasbourg. Cayman’s incoming Constitution will import the rights directly into local law.
2. Delays, miscarriages of justice and appeals
Under the Constitution those charged with a criminal offence have the right to a lawyer. This does not mean the mere presence of an attorney – they have the right to a proper defence and to ‘equality of arms’ with the prosecuting authorities who are financed by the state.
The HRC notes that the budget allocated to the new legal aid service is $1.2 million and that it is proposed that this sum will cover not just criminal defence but also employment matters, landlord and tenant disputes, domestic violence issues and, presumably, civil and matrimonial legal aid (as the former budget did). It is worthy of note that it currently costs over twice as much as this just to prosecute criminal allegations.
The HRC welcomes the government’s commitment to the funding of legal services for all these diverse areas but is concerned that the suggested budget will be far too limited to provide proper services. The previous legal aid budget was extremely tight and these further cuts are significant.
If there are insufficient defence lawyers and resources the (already lengthy) delays in the criminal justice system will increase. If trials cannot be heard within a reasonable time defendants and the victims of crime will suffer, as will the quality of justice as witnesses’ memories fade.
Criminal litigation is a highly specialised, complex and technical area of law.
Therefore, in order properly to defend Grand Court cases, sufficiently expert criminal lawyers will have to be recruited. The HRC notes that at present no explanation has been given for how such suitably qualified experts will be recruited. The defence of serious criminal offences cannot be undertaken by untrained or inexperienced lawyers – such a system would inevitably produce delays, miscarriages of justice and appeals – the high cost of which would have to be borne by the public purse.
3. Interim Legal Aid funding
Finally, the HRC is concerned that the suggested interim funding of $300,000 for all current cases to be finalised before the new scheme comes into force may not be adequate. If this sum runs out before all cases are finished, and current lawyers are not provided with further funding, they will be unable to continue to act. In such a situation the new public defender’s office will be faced with having to repeat work already done at public expense. The delays and wasted costs will be significant.
4. HRC review of new draft legal aid law
Clearly, new legislation will be needed before the public defender’s office can come into being. The HRC looks forward to having the opportunity to comment on these important Bills and to being able to see, in detail, the substance of the government’s new plans for Legal Aid.
As usual the HRC stands ready to assist with the drafting of new legislation if asked.
Cayman Islands Human Rights Commission