Baines: Legal aid cap would reduce delays

Reforming legal aid would help reduce delays clogging up the courts, according to Police Commissioner David Baines. 

Mr. Baines acknowledged that police and prosecutors had to forge a more efficient working relationship to speed up the course of justice. 

But he said defense attorneys must also take their share of the blame for the delays highlighted in criminal justice adviser Claire Wetton’s report. 

Ms. Wetton warned there were “far too many unnecessary adjournments” of cases before the court and proposed a new set of guidelines for police and the Department of Public Prosecutions to speed up the process. The guidelines set a target of dealing with all cases before the Summary Court within a year. 

Mr. Baines believes capping legal aid fees to attorneys through a U.K.-style fee schedule based on the complexity of the offense could also be effective in reducing delays in cases, which sometimes span several years and multiple court appearances. 

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A leading criminal defense lawyer refuted suggestions that defence advocates were responsible for delay and suggested such reforms would impact access to justice. 

Amelia Fosuhene, of Stenning and Associates, said the criminal justice review had focused squarely on police and the Department of Public Prosecutions. She said focussing on perceived defence issues missed the point. 

“They did not consult with the Criminal Defence Bar, the purpose and mandate was to look at improvements which could be made in the police service, Office of the DPP and the court,” Ms. Fosuhene said. 

She added that the report had highlighted clear failings on the part of police to provide full disclosure of evidence in a timely fashion and suggested those issues needed to be addressed with the greatest urgency. 

Mr. Baines has said the police service is stepping up training for officers and has put in place a standardized evidence file process based on the U.K. model. He says this has already led to improvements. 

But he believes the justice system is currently balanced in favor of the defendant, rather than victims of crime. 

He said in the U.K. system, lawyers knew they were getting a set fee, regardless of how long a case lasted. He suggested this had contributed to speeding up the process. 

“In the U.K., if you have legal aid you have a set amount that is given for a certain type of case. If you want to take it over four court appearances you are still only going to get paid the same amount, so guess what? Less adjournments, less justifications for the defense to drag it out, less instances where people turn up at court and say ‘I have not had time to be briefed.’” 

Mr. Baines said he believes some of the delays are a deliberate tactic from defense attorneys. He said a lot of people in Cayman, including witnesses in many cases, were transient and as cases dragged on, work permits expired or frustrations grew and their willingness to be involved fell away. 

He has also called for a more level playing field when it comes to disclosure of evidence before trial. 

Police and prosecutors have to make full disclosure of their case to the defendant’s attorney, but there is no requirement for the defense to set out their case in advance, he added. 

“It’s an uneven playing field,” he said. 

“Disclosure should not be a club to beat the prosecution because then all you get is the law and no justice.” 

Ms. Fosuhene said it was incorrect to suggest defense lawyers were spinning out cases. She said lawyers were not paid for “mention” hearings so there was nothing to gain from multiple adjournments. 

She said defense lawyers from the U.K. would be familiar with legislation requiring them to outline their case prior to trial, as recommended in the review. 

But she said this was peripheral to the basic issue highlighted in the report of police officers failing to fulfill their current obligation to provide complete evidence to the Office of the DPP who could forward it to the defense in a timely manner. 

“It is important to have proper liaison between the RCIPS and the Office of the DPP and it is important that the commissioner ensures the police officers responsible for providing the Office of the DPP with disclosure are properly trained so that their lack of training, where it exists, does not continue to cause delays for the court, the defendant and ultimately a victim,” she said. 

Ms. Wetton’s review says the disclosure of unused material – evidence collected during the investigation but not used by the prosecution – is not uniformly undertaken. She recommended training for police officers and possible legislative changes to reinforce this requirement. 

Ms. Fosuhene said this was a crucial issue because defendants needed access to the full evidence file, in case anything uncovered during the investigation could help exonerate a defendant or persuade them to plead guilty. 

Mr. Baines says he supports the recommendations in Ms. Wetton’s report and claims police evidence files are already improving in response. 

He said police were the “public face” of delays in the justice system and warned that cases sometimes fell apart as they dragged on for several years. 

“An adjournment six times, 10, even 15 times, is not unusual. The people who are paying for that are the public of the Cayman Islands. The ability to deliver justice is what suffers. Witnesses drop off and there becomes less confidence in the entire criminal justice system.” 

He said delays made victims and witnesses frustrated and less likely to cooperate in the future. 

“It is about time we put victims and witnesses at the heart of our criminal justice system,” he added. 

Mr. Baines

Mr. Baines
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  1. While there are some very good and valid points raised by Mr. Baines that should be addressed urgently what he needs to focus in the short-term are the issues within the RCIPS that might be causing delays. I don’t agree with a legal aid cap but I do think that the amounts paid in legal aid should be based on work that has been done and there needs to be a process in place to ensure that the system is not being abused.

  2. Good point Mack, where Baines needs to focus is the R.C.I.P because this is where most court cases start, and if it’s messed up from the start, it will be a mess in the end , which would cause a lot of wasted time in the courts.

  3. I have to agree with comments made by both Mack and Ron; and yes much focus must be placed on the RCIP, because like Ron says this is where the court case begins. A few officers in the RCIP are not keeping up with the laws and their new amendments, and sometime make charges that come to no fruition. I agree with the commissioner, in stepping up training for his officers, this is very good and very well needed. Now-a-days police officers should not be chosen just because they have time spent in other jurisdiction under their belt, or because they have a cousin or friend on the force. These are the days that they have to know what is the Law.
    A break down that many people are aware of with police cases, is that too often some officers are holding sides with persons of their own nationality. We the people are out here, where we know, we see and we hear.
    I believe the commissioner mean well, but he is only one person in an office who has to rely on what is told to him. The ball stops here where he has to not only rely on superior info. but to make sure it is correct and without prejudice.