Legal aid still in crisis

| 13/01/2009

(CNS): Chief Justice Anthony Smellie has voiced his concerns regarding  funding of the legal aid system, stating that halfway through the current fiscal year (2008–2009) the budget allocation for legal aid has already been spent. “We now face the same crisis we faced last year with our hard-working and dedicated criminal defence bar being owed fees which they can ill-afford to have outstanding,”

Speaking at the official opening of the Grand Court last Wednesday, 7 January, the country’s most senior legal figure explained that, as has been the case for several years now, the legal aid budget is falling far short and having lawyers going unpaid will eventually see members of the legal professions reluctant to take up legal aid work.

“That sort of treatment will – it should go without saying – only  result in these lawyers no longer being willing to undertake legal-aid funded work and so, ultimately, to the detriment of members of the Cayman public who must depend on them for the protection and enforcement of their rights,” Smellie added.

“Emergency funding will therefore have to be found again this year, to bridge the gap until the further submissions are dealt with by Cabinet and Finance Committee.”

Smellie noted that the Law Reform Commission has, after a very exhaustive survey, produced a report stating that the legal aid system does indeed represent good value for money.

“I trust that the Finance Committee will be more sanguine about its acceptance of the budgetary submissions,” the chief justice added.

He said that the long awaited Law Reform Commission’s recommendations for enhancement of thesystem should be immediately legislated and implemented.

There are still three days remaining for the public to comment on the report, and James Bergstrom, President of the Cayman Bar Association, also noted in his presentation at the opening of the Grand Court that legal aid is an issue for society as a whole and not just the responsibility of the profession and public participation and discussion was welcome.

“We also agree with the commission that the existing system has produced ‘good value for money’.  Improvements to the existing system rather than a complete overhaul should be preferred and is the only way forward that allows us to predict the cost with any certainty,” Bergstrom added.

The subject of the country’s legal aid system has long been controversial and increasing the budget is rarely a vote winner. However, an efficient and well-funded legal aid system is central to the concept of justice in a democracy.

A commission was established in Cayman earlier this year to assess the situation regarding the current legal aid system and it has made eight recommendations, including the appointment of a legal aid administrator (public defender) whose role would be to help improve the current system’s efficiency as well as the concept of mean’s testing.

The report also suggested widening the list of offences for which defendants can apply for legal aid. Concluding that the legal aid system in Cayman does give value for money, the commission suggested that a more open, transparent and efficient system that more clearly demonstrated how the money was spent was a more achievable goal than actually reducing spending. 

The commission stopped short of mandating pro bono work among Cayman’s legal profession but recommends that an effective campaign be undertaken to encourage more local lawyers to do this type of work for free.

 

Go to www.gov.ky to see the full Legal Aid Report.

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Comments (3)

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  1. Anonymous says:

    In the UK all lawyers must provide a certain amount of legal aid. Given the countless lawyers in the Cayman Islands, this might work here.

    • Anonymous says:

      This is incorrect and has never been the case. 

      In the current regime in England & Wales (Scotland may be different), whether or not lawyers accept legal aid work is pretty much voluntary.  In the case of solicitors, they must generally apply for a legal aid "franchise", which is strictly regulated by the Legal Services Commission so that only a limited number of firms are awarded a franchise to undertake legal aid work on a regular basis, and, in the case of barristers, they only have to accept legal aid work (if it is offered to them by a solicitor) under certain circumstances, in accordance with the cab rank rule. 

  2. Anonymous says:

     With so many people applying for legal aid of course they are having funding problems. I think that Legal Aid has stopped being Legal Aid and is instead full funding an applicants expenses. It is my believe that Legal Aid should be used to supplement excess costs over the means of the applicant, but it should not be relied upon to fully fund the costs, of the applicants.

    I honestly do not know the specifics of how an applicant is approved but a financial review on the applicant should be performed – this review should derive relevant info such as the amount that the applicant could self finance towards his/her legal fees. In the rare case that someone truly cannot afford to pay for any of the fees then they should have them sign a work off contract – the person serves in community projects at an agreed hourly rate until the fees would have been paid.   This allows the government to recruit extra hands for community projects that are of "no expense" to the govt but that ultimately provides a worthy investment to the citizens of these Islands while also affording all persons the right to a defense.

    As mentioned in the article above – "legal aid is an issue for society as a whole and not just the responsibility of the profession".