Legal aid QC not guaranteed for murder trial

| 22/06/2009

(CNS): In a statement regarding the situation surrounding the legal representation of the men accused of murdering Estella Scott-Roberts, Chief Justice Anthony Smellie said that, while the applications for Queens Counsel (QC) are being reconsidered, it is not mandatory that anyone accused of murder would be provided with legal representation at that level. The local Criminal Defence Bar Association has, however, noted that given the seriousness of the crime it should be, and it has noted the danger of injustice if any defendant is not represented equally with the crown.

The chief justice said that, “….in line with the practice in other Commonwealth territories, the Legal Aid Department rejects the notion that a QC should be automatic in cases in which murder has been alleged.”

He did, however, express gratitude to what he described as the small corps of lawyers, some 10 in all, from a local legal fraternity of around 500 that generally take on the legal aid work here in Cayman, without whom it would be very difficult for many defendants to get proper representation.

According to the CDBA, it is customary for those facing serious charges such as murder to be able to engage a QC from either Jamaica or the UK through legal aid for their defence, especially given the fact that they are prosecuted by the solicitor general.

"Murder is the most serious crime on the statute books. As such, it carries the most serious penalty available on conviction: a mandatory sentence of life imprisonment,” the CDBA told CNS. “It is not for us to state the court’s policy in relation to the grant of QCs but we would suggest that if it is not automatic in cases of murder then it ought to be."

The CDBA noted recently in connection with the cases of Kirkland Henry and Larry Ricketts, who are charged with murder and being prosecuted by the solicitor general without lead counsel of their own (i.e. a QueensCounsel — someone with seniority in the legal profession), that there would be inequality of arms between the Crown and the defence.

Henry and Ricketts are due to be tried at the beginning of August for the murder of Scott-Roberts and have been without proper legal representation for several weeks. So far, Henry has had his application for the legal aid for a QC from Jamaica denied, while Ricketts is still awaiting a decision on his application.

Having returned to the jurisdiction last week, Smellie said that Ben Tonner, who has been temporarily acting for Henry, had been asked to confirm that he has identified a Queens Counsel (QC) who will take the case.  “He must also at the same time specify that the QC has agreed to lead the case at the standard rate paid at legal aid, that is at $135 per hour, and at the standard economy rate of airfare and hotel accommodation,” Smellie said, adding that this had not been done during the application process, but he said it was the means by which the Court manages to control expenditure on QCs in legal aid cases. 

“Once the application is re-submitted in compliance with these terms, it will be re-considered,” the CJ added.

The Legal Aid Department had approved an extension of the existing legal aid certificate, a second senior lawyer to assist with the case, and the CJ noted that as the rate for overseas lawyers, regardless of their position, is the same $135 per hour as for local lawyers, the only issue would have turned on specifying in the application process the conditions for employing a QC.

The fundamental problem, however, for both Henry and Ricketts, as well as a number of others currently facing serious charges, is that there is little or no funds left in the legal aid coffers with little prospect on the horizon of seeing the budget increased.  Even though a report published last year by the Law Reform Commission stated that Cayman’s legal aid bill is not by comparison to other jurisdictions particularly high, the problem of funding legal aid representation has been compounded by the continuous reduction of its budget in Finance Committee, as it has been persistently politically unpopular among the electorate.

Despite the significant number of lawyers in Cayman, there are few that are prepared to work for the legal aid fee and few law firms that even offer a criminal defence arm. Walkers is due to close its criminal defence department, reducing still further the pool of lawyers likely to take legal aid work. Although the firm has for the last ten years traditionally brought a junior barrister to the jurisdiction to conduct legal aid defence work, it told CNS recently that, given the current economic climate, it will be diverting funds previously used to keep that department afloat elsewhere.

The Law Reform Commission has suggested introducing a merits and means testing for applicants, and while it shied away from making pro-bono work mandatory for local lawyers, it said encouraging and promoting voluntary legal assistance from the private sector would be an obvious way of reducing the government’s legal aid overheads. Attorney General Samuel Bulgin has said that access to legal aid is an integral aspect of the administration of justice and that a modern, transparent system of legal aid enables access to justice to persons in need and enhances the Islands’ image as a sophisticated, democratic and stable jurisdiction.

“Though it may not necessarily resulting in reduced costs, the Commission’s view is that a more transparent and efficient administration of legal aid could serve to more readily demonstrate that funds are being appropriately spent, thereby satisfying the objective of accountability inherent in the Legislators’ concerns,” Bulgin said when the report was circulated for public comment last year.

The report is available on the Legislative Assembly’s website,, under House Business and Presentation of Papers and of Reports.

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Comments (9)

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  1. Thankful says:

    am….so wait one little minute now. 

    Wha ya say the Caymanian Bar Assn, UK Barristers (on-island and off) and other local experts believe that a QC should be afforded for murder cases, especially one involving huge public/media outcry…so what happen to our Caymanians who have requested a QC for their representation for similar charges?!!  This is not an expat/Caymanian issue that I am highlighting this, but a justice issue!!!! 

    I know of cases that were questionable and alleged mis-representation locally was the great outcry from our local defendants.  While we can expect a reasonable degree of baseless claims of misrepresentation or challenges from defendants (for whatever reason), this case has truly caused me to have a second look through my lens, in assessing or forming my position on these cries in the wilderness. I now strongly urge that they (defendants) be listened to and cases reexamined so as to truly ensure that they are not being discredited to save face or as a matter of practise.  My lil law insight brings to fore: Justice must not only be done but  SEEN to be done. 

    Oh my Lord…I pray there has not been any injustice because of this in the past.  I pray none of our prisoners are sleeping in jail because they were poorly represented.

    What a can of whorms we have opened up and boy are they wiggling…

  2. Silk road says:

    For these men to get a fair trial in the circumstances of this case they will need a silk regardless of the complexity or lack of complexity of the evidence.  This case has turned into a media circus and it will be very hard for there to be a fair jury trial whatever the evidence.  Handling this type of issue needs careful tactical handling by an experienced QC.  A junior, even a senior junior, will have little prospect of managing this task.

  3. Chris Randall says:

    I repeat my call for the establishment of the post (or office) of ‘Public Defender’.   The reputed ‘fairness’ of the British Legal System only exists for those able to afford it.  The guilt or innocence of every accused person is not determined until the conclusion of a trial; it cannot be right that such a person must use their own funds to achieve a favourable result.  If an accused has no financial resources then public funds are utilised for that purpose; an indigent is thus in a better position than someone with a bank account or house to mortgage.

  4. Anonymous says:

    To the "court Press Officer"  – it is most certainly NOT standard in the UK to allocate serious cases including murder to barristers of 5 years call.  What utter nonsense.  In the UK you would very rarely get a case of murder (prosecuting or defending) as junior counsel ie one who is not a silk and if you did you would be what was known as a leading junior very often of over 20 years call.  Do not talk about things you know nothing about.   It is most unusual to have a case of murder in the UK where silk is not appointed on both sides and for a case of this notoriety and public outrage it would be inevitable.

    A member of the British Bar.

  5. Anonymous says:

    I think a lawyer can come from anywhere to represent them once they get leave of the court to actually work here in the Cayman Islands. I mean you would not want to give them leave for an appeal based on the fact that their lawyers were unfamilar with Cayman Islands law – other than that consideration I say why not? Let a lawyer from JAM come here to represent them.

    However, please note that it does NOT have to be a QC. The whole point of this article.

  6. Twyla M Vargas says:


    I am not sure, but would like to know if it is possible that the Government of Jamaica can provide a QC for these gentleman.

    I maybe wrong, and correct me if I am, but  lets put the shoe on the other foot.   Suppose this had happened to a Cayanian in Jamaica and the family of that person could not afford a lawyer, would the Cayman Government assist the accused persons?

    Because of the nature of the crime,  and how it was committed,  I think this is going to be a tough decision for the Cayman Island government to make concerning giving Legal Aid.  Everybody is going to catch hell from the public, and I am sure many are just waiting to see the decision made.   I believe the legal department should have some discussions with the government of Jamaica, the family of the accused persons and try to work something out, or why not send the accused persons to England  to be tried there.   Can  any of my suggestions work, I do not know, I am only throwing thoughts around.   I know every one is being tight lipped on this, and I am sure the Legal department is aware that it is being watched closely.  Pray for directions and be blessed.

    • Anonymous says:

      Another solution could be to transfer the trial to any Commenwealth country that has the death penalty. If Jamaica has the death penalty then it would be less costly to have the trial there and Cayman Govt provide them with the QC they require and seek the death penalty if they are convicted.

      Of course I have no idea whether this can really be done.

      • Court Press Officer says:

        To clarify, legal Aid has been approved for the respresentation of these two defendants. 

        In the case of Kirkland Henry, his attorney has requested an extension of legal aid provision for a second attorney.  In the process, he must confirm that he has located a QC who has agreed to take the case under the terms of the Legal Aid Department.  Once that process has been completed in compliance with settled conditions, the situation will be resolved.

        For the information of the public, it has been the established practice, well known to local lawyers, that QCs are paid at the same rate as local lawyers participating in the scheme.  That needs to be specificed in any application to the Legal Aid Department. 

        So there is no issue with funding in this respect by the Legal Aid Department.

        As for the matter of the perceived need for QCs, in other Commonwealth countries, including the UK, the standard is five years’ ‘call’ for the assignment of barristers to serious matters, including cases involving allegations of murder.

        All of the barristers available for these assignments in Cayman have from five to 10 years’ experience.  
        It is the view of the Court that the group of available barristers are all competent to do serious cases, including those involving allegations of murder. The lawyers are, however, reluctant and in some cases have refused to take on serious matters on their own. This has no doubt contributed to the belief held by defendants that they are entitled to QCs for all serious cases.
        Nevertheless, in this case, with a second attorney had already been approved, the only remaining issue is that any QC joining the team serve at the same rate as a local attorney and in compliance with conditions as to accommodations and travel. 
        Once these conditions are met, there is no issue if the attorney wishes to obtain the services of a QC as the lead attorney.
        • A barrister says:

          To the Court Press Officer.


          Your so-called clarification could not be less appropriately described.  In an area such as this, so filled with common misconceptions, the public really are entitled to expect better from the Court.


          I restrict myself to dealing only with one aspect of your clarification: Your utterly inaccurate and thoroughly misleading description of "UK" criminal law and court procedure and your use of that as a basis for implied criticism that attorneys in Cayman areacting inappropriately.


          The professional conduct of English and Welsh barristers is covered by the Code of Conduct for the Bar of England and Wales.  I do not know where the attorneys in this case received their qualifications but that Code applies to the professional actions of English and Welsh barristers wherever they practice.   It very clearly states:


          "A barrister must not accept any instructions…if he lacks sufficient experience or competence to handle the matter". 


          Against the background of your comments it is worthy of note that it also requires:


          "A barrister must not…permit his absolute independence integrity and freedom from external pressures to be compromised…[or]…compromise his professional standards in order to please his client the Court or a third party…"


          Until very recently in the UK all murder cases were defended by a QC, now they are occasionally dealt with by very senior barristers who are not QCs.  A case of this seriousness and public profile would undoubtedly have a QC defending it. An English or Welsh barrister of 5 years’ call taking on a murder trial (especially this one) would be committing a professional misconduct offence and would be liable to be disciplined by his professional body.


          There is not space here to rehearse the well-tested arguments for why the state should provide proper representation for those accused of serious crime.  However, perhaps the very least the attorneys who take on the deeply unpopular and poorly-funded defence in legal aid cases might expect is the support of the Court? They certainly don’t deserve its censure and implied criticism through inaccurate and thoroughly misleading comments.