I refer to an editorial which appeared in the Cayman Net News on 14 June, 2007, titled “Legal Aid Lip Service”.
First, the editorial alleged that the Caribbean Human Rights Symposium held in Grand Cayman from 11-14 September, 2001, “failed dismally to have any impact whatsoever in the field of Human Rights in the Cayman Islands”.
This statement was breathtakingly sweeping and breathtakingly inaccurate.
In fact this symposium had several world famous speakers including Dame Elizabeth Butler-Sloss, Professor Rex Nettleford, Archbishop Desmond Tutu (by video), Sir Dennis Byron, Kier Starmer, QC, Desmond DaSilva, QC and was attended by some 400 people from over 20 jurisdictions. This symposium was the first and remains the only human rights symposium in the Caribbean sponsored by the United Nations.
The Chief Justice should be congratulated for promoting it in recognition of the United Nations Year of Human Rights Education.
Indeed, it arguably spawned the establishment of the Cayman Islands Human Rights Committee.
It is now fitting to note that the new chairperson, Sarah Collins, actually delivered a paper on the rights of women and children at this very symposium. Consequently, many people, including the writer would strongly disagree with the inaccurate conclusion of the Human Rights Symposium contained in the editorial in question.
The editorial made another error in that it incorrectly stated that Chief Justice Smellie made the Legal Aid Rules. The editor either failed to conduct any proper research or his research led him to a wrong conclusion. The Legal Aid Rules were actually made by Chief Justice Smellie’s predecessor, former Chief Justice George Harre. The then Chief Justice George Harre sought the approval of the Governor and Council and with their approval these Rules were passed on 4 February, 1997.
Under our current system legal aid is granted to defendants in criminal cases as a priority given the constraints of the legal aid budget.
In the Summary Courts the Magistrates will conduct an enquiry before deciding whether a defendant can afford an attorney. When an applicant applies to the Grand Court for legal aid, he must complete a written application and submit an affidavit of means. This will be checked by the probation services or the police, if required by the Court.
In addition, in civil cases there is a further requirement that a preliminary independent legal opinion has to be obtained to confirm that the applicant has a more than arguable case.
Accordingly, neither the Chief Justice nor any of the other Grand Court Judges pre-judge the case or any defence which may later be filed in response should proceedings ultimately be issued.
Whilst it may not be a perfect system, it works fairly well given the tight budgetary constraints and should in our view remain under the aegis of the Courts in order to avoid further delay and additional costs
This is very similar to what takes place in the UK and in other jurisdictions.
It should also be noted that in the article in your paper on 19 June the Chief Justice has made it quite clear that the question of Legal Aid will be looked at from every perspective we can identify.
Accordingly, Cayman Net News’ unnecessarily hostile statement regarding the Human Rights Symposium and our present Chief Justice do the editor and his paper no credit whatsoever.
The Cayman Islands Law Society has consistently held the view that the state has an obligation to ensure that all defendants are properly represented.
Indeed at the opening of the Court in January I stated that “It is a primary responsibility of the state that all persons have competent and experienced representation and legal aid is essential for those who cannot afford such representation”.
The Chief Justice himself said at the opening of the Grand Court that there is a “national collective responsibility to ensure that persons who are charged with offences which could result in the loss of their liberty and who cannot afford to defend themselves are provided with legal aid by the state”.
He went on to say that this is “a primary and paramount obligation of any democratic and civilized society”.
However the Law Society and indeed the Chief Justice welcome constructive suggestions.
The question of legal aid and how best to administer it needs to be addressed.
Also, the means test should be applied and then perhaps consideration must be given to applicants providing some financial consideration.
Indeed the Chief Justice has acknowledged that fact when he also stated at the Opening of the Court that the law needed attention and amendment and indeed the Law Reform Commission is undertaking a review of the Legal Aid Law and the Rules.
The Law Society and many of its members will continue to help in representing legally aided parties and continue to act on a rate that is significantly lower than the commercial rate. I would again like to record the Law Society’s thanks to the practitioners who provide this essential service to the country.
Charles Quin, Q.C. – President Cayman Islands Law Society
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