An initial limit of $20,000 per case is proposed in the latest attempt by the Cayman Islands government to rewrite legislation governing its legal aid services budget.
The Legal Aid Bill, 2015, made public Friday, also seeks to give an unspecified government minister a significant degree of influence over the budget that provides indigent criminal defendants, and in some cases participants in civil court matters, with funding for attorneys to represent them.
The proposal, one of several that has sought to reform the current legal aid system in the past decade, would, if approved by lawmakers, broaden the types of court cases that might qualify for legal aid. The bill proposes legal aid be made available not only in criminal matters, but for certain civil cases and family court proceedings that directly relate to the care of a minor.
The bill also seeks to identify certain court cases that would not qualify for legal aid from government, including defamation cases, legal actions against real estate agents and legal actions related to a political election, among other civil matters.
A director of legal aid – a civil servant to be appointed by a ministry chief officer – would supervise expenditures and “shall not, without the prior written approval of the court administrator and the clerk of the court, authorize any expenditure in any one legal aid matter in excess of $20,000.”
That cap could be exceeded depending on such issues as the length and complexity of the case, among other determinations. The use of foreign counsel would be limited to legal aid cases designated as “complex,” according to the bill. The law also provides a limit on fees to attorneys who take legal aid cases to 10 hours per day, barring certain exceptional circumstances. Attorneys who accept legal aid cases could also be limited by the legal aid director to the number of such cases in which they are allowed to represent defendants in any given year. The going rate for legal aid services is $135 per hour.
“With the rate being suggested, the number of attorneys willing to take on legal aid cases will continue to dwindle and may create subsequent breaches of right to fair trial based on lack of representation, lack of suitably competent people prepared to do the work and lack of equality of arms with the director of public prosecutions who is not so limited when she instructs outside counsel,” the Cayman Islands Human Rights Commission observed earlier in the year.
“[Section 25 of the bill] provides for uplifts on legal aid rates in specific circumstances. The HRC welcomes this development but greater clarity needs to be given as to what these rates will be.”
The award of legal aid in any matter would still fall under the purview of the legal aid director in consultation with the courts administration. Government ministers would not be involved in deciding who qualifies for legal aid.
However, the unspecified minister who is to have oversight of the legal aid budget under the legislation is permitted to give “general directions as to the policy to be followed by the [legal aid] director” and states that the director “shall give effect to such directions.”
The bill also leaves it to the Cabinet – after consultation with the chief justice – to determine whether a person who receives legal aid is able to pay at least part of the cost for their representation. The minister responsible for legal aid oversight is also given the ability to refuse to recover money from a grant of legal aid if he decides collecting the debt would cause “serious hardship” to the person or if the cost of collecting is likely to be more than the amount of debt itself.
The latest draft of the Legal Aid Bill seeks to provide the service to those in the community who need it, while allowing elected members of the Legislative Assembly some level of accountability and control with regard to the legal aid budget, Attorney General Samuel Bulgin said earlier this year. The cost of providing legal representation to indigent criminal defendants, as well as in certain civil and family court cases, has nearly doubled over the past five years.
Mr. Bulgin told the Legislative Assembly in May that the legal aid budget had increased from what was a “$1.5 million [per year] constant” to $2.7 million in the upcoming 2015/16 government fiscal year.
“This has been brought about in large part by the advent of a bill of rights [in the Cayman Islands Constitution Order, 2009] as well as a new Children Law and the increased need for legal aid assistance,” Mr. Bulgin said.
One of the requirements in the bill would ensure that a “duty counsel” is available to provide legal advice to detainees at police stations prior to the subject being interviewed by officers. The arresting officers are required to inform the arrested individuals of their right to counsel in such cases, the bill states.
“It is a constitutional requirement,” Mr. Bulgin said.