Lawyers say legal aid murder case refusal is unprecedented

| 05/06/2009

(CNS): UPDATED FRIDAY 5:00PM —The two men facing charges for the murder of Estella Scott-Roberts appeared in court on Friday to hear what was happening regarding their legal representation troubles. Larry Prinston Ricketts, who faces murder and kidnapping charges, is currently without any representation at all, and defendant Kirkland Henry (left), who faces murder, kidnapping and rape charges, has been refused his legal aid request to cover the cost of Queen’s Counsel, which the Cayman Islands Criminal Defence Bar Association has stated is unprecedented.

Justice Leighton Pusey told the court this morning that he had been a little optimistic in hoping the situation would have been resolved today and the case could be moved forward, but he noted that more time would be required to explore the refusal of legal aid for Henry and the lack of any representation for Ricketts and adjourned the case for a further seven days. Currently, Ricketts and Henry have a trial date for 3 August, and the judge noted he did not want the state of uncertainty to continue for much longer.

Ben Tonner, Henry’s current junior counsel, agreed to appear again for Henry on that occasion but the Criminal Defence Bar Association has said that given the circumstances Tonner cannot represent the accused man. Despite the gravity of the charges, and the fact that Henry is being prosecuted by Solicitor General Cheryll Richards, herself, he is being denied legal aid for a QC, though he has been awarded funds for junior counsel.  

“Kirkland Henry is charged with murder. His case is being prosecuted by the Solicitor General and he faces life imprisonment if convicted. Despite the fact that persons charged with murder are routinely awarded legal aid to cover the costs of Queen’s Counsel, Mr. Henry’s application for a Q.C. has been refused. This refusal is unprecedented,” the Association stated.

“Whilst Mr Henry’s attorney, Ben Tonner, is willing and able to represent Mr. Henry, he has quite properly refused to do so in the absence of senior counsel for the defence. For Mr Tonner to continue to act would not only legitimise the refusal of legal aid and give the illusion of equality of arms between the Crown and the defence, it would be a direct breach of Mr Tonner’s professional code of conduct,” the association added.

Larry Prinston Ricketts was represented by John Furniss. However, the court heard this morning that Furniss has been removed from the case, and although Ricketts has also made a legal aid application for a QC, he has not yet had a response and is currently withouteither junior or lead counsel. As Justice Pusey adjourned the case, Ricketts asked if he could have Clyde Allen (a defence attorney who was present in court for another matter) represent him.

Justice Pusey asked Allen if there had been any discussion with him about that, and Allen indicated that there had not and he was not in a position to assist. The judge then explained to Ricketts that it was not possible to just select a lawyer from the court as attorneys were involved in other cases and it was important to select a lawyer that was available and able to represent him. The judge explained that he was not in a position to force an attorney to represent him and it was better for legal aid to take care of the matter, but he would try to see efforts were made for representation by next week.

A local legal expert told CNS that every defendant facing murder charges and often attempted murder charges would be allocated QCs as without one there is real risk that justice will not be done. The QCs always come from outside the jurisdiction either Jamaica or the UK because there are no local QCs willing to work at the low levels of pay, the lawyer said.

Other concerns that have been raised from sources close to the investigation are that if a conviction is obtained in this case without a QC defending the men, the conviction may not hold. “The fact remains that, without the equality of legal defence, any conviction would be vulnerable on appeal,” they stated.

Decisions regarding legal aid rest with Chief Justice Anthony Smellie, who has been absent from the courts for several weeks for medical reasons but is expected to return on Monday. However, it has been widely reported that there are issues regarding the legal aid budget, issues the chief justice raised himself at the opening of the latest sitting of the Grand Court.

The problems surrounding the lack of funding for legal aid arose during a number of the mentions throughout Friday morning’s Grand Court sitting. In one case regarding firearms charges defence counsel had been unable to make contact with the legal aid department over the need to confirm payment to an expert witness who was seeking reassurance that she would receive remuneration before she completed a much needed report.

 Another defendant who appeared unrepresented regarding an appeal for a summary court conviction said he had been informed by legal aid that he would be appointed a lawyer in time for his appearance today (Friday 5 June) but did not see anyone for him on his arrival at court.

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  1. Chris Randall says:

    This situation is one more reason for the establishment of the office of ‘Public Defender’.  Although such an office does not exist in the UK that is not a sufficient reason why it could not be set up here. 

    Leaving aside the case under discussion; there is an inherent inequality in the legal system: 

    A person charged with an offence can obtain legal representation in court at the public’s expense IF they are found by the court to be unable to pay for a lawyer themself.  So, a person with a few thousand dollars in the bank, or property to mortgage. has to fund their own defense.   If that person is then found not guilty he or she cannot claim compensation and is out of pocket.  Thus, due to perhaps merely being in the wrong place at the wrong time, that person has to sacrifice their savings or go into debt merely to prove their innocence.   

    If society is to prosecute alleged offenders then society ought to also ensure their defense against that prosecution otherwise there is no equity at all.

  2. Anonymous says:

    Sounds like these guys are gonna walk scotch free! If they are guilty, what a great injustice for Estella just because no proper qualified attorney was afforded by the Legal Aid system, because you don’t have to be a genius to figure out it would be a mis-trial in their favor.  Oh well, we’ll just add that to all the other corruption that goes on with Government spending stupidly!

    It would be wise for Government to get proper qualified representation for these 2, at least we would stand a chance for them to be convicted and sentenced for life if they are guilty.  But with no proper legal qualified representation, it would be a sure mis-trial and they would walk scotch free!

    Maybe all who have marched for Estella, and her husband’s foundation he set up in her name, should pitch in donations for proper legal aid for these 2 guys for the above mentioned reason.  Does anyone really care about justice for Estella?

  3. Anonymous says:

    great. just waiting for the HRC to chime in on this now.

  4. Anonymous says:

    If the Criminal Defence bar is so wound up about this, why doesnt one of their members step forward to act as attorneys for these two?

    Or are they only planning to provide comments but no actual service??

    All of the CDBA members are nothing but practicing criminal defence lawyers!

    If they feel so strongly about the ‘rule of law’ and human rights for defendants, right to a fair trial and the presumption of innocence – then the CDBA should act as their attorneys (and stop whining academically)


    CNS Note:  Just to clarify — it is not an issue with local lawyers not being willing to defend these men but the fact that there are no QCs in Cayman’s local pool of criminal lawyers for them to work with. When one is accused of murder it is customary to be defended by a QC not a regular barrister. If not there is an unequal balance in the court room as the prosecution will be conducted by the Solicitor General. Tonner has made it clear he is happy to act as junior counsel but he is not a QC and therefore cannot in the interests of justice be the lead counsel in this case.

  5. Collin Mc says:

    Guilty or not ,"without the equality of legal defence, any conviction would be vulnerable on appeal." The courts need to take this into account and arrange QC for these men in order for (swift) justice to served

  6. Anonymous says:

    Pardon my ignorance as I am not a lawyer, but this process of assigning a QC from elsewhere would be very expensive so why does this person even have the option of requesting a QC?  It seems to me that any lawyer should be able to defend this accused man.  As a citizen of Cayman I don’t understand why it is justifiable to absorb this cost.  Why does this person not request a QC from Jamaica and paid by the Jamaican Government?  I seriously doubt Jamaica would give this a second thought so why should Cayman?  XXXXXXXX  I say that any lawyer will do.  NO QC!

  7. Shaun Ebanks says:

    In the interest of "Justice" these defendants should be afforded at all costs, a QC Attorney hopefully from Jamaica, (their country of origin) to represent them in this most serious charge.

    I’m a bit worried that if a conviction is secured, it certainly would be appealed all the way to the Privy Council and such conviction may be quashed due to a lack of proper legal representationin the initial Grant Court trial here in Cayman. This is something that I and many others don’t want to see happen. Therefore, it’s better to have legal aid provided for appropriate legal counsel for these two defendants. 

    It’s absolutely amazing how this case still brings "raw emotions" from persons from all walks of life in Cayman, as if this horrible incident just happened 24 hours ago. I expecting to hear next that this case may be tried/moved to one of the other British Overseas Territories for fairness or perhaps a jury maybe imported from one of the other British Overseas Territories to Cayman, to hear the case. Who knows ??? Nothing surprises me anyore. Take care and God Bless.


  8. Anonymous says:

    What I find interesting with many of the comments on this story is that even though no one has said "these men being denied a QC is good" the comments still go on as if theres a lynch mob at the door. It sounds like Cayman is being denied ‘innocence untill proven guilty’ as well.

  9. Anonymous says:

    This may not be a problem with the judiciary as alleged, if in fact the judiciary have not been allocated the financial resources to pay for the appointment of legal aid-paid QCs. 

    I don’t know that this is the case, but there must be some extraordinary reason why a charge of murder is not given a QC to run the defence.  However, if there is in fact no money provided for proper counsel then the judiciary can’t be faulted for not spending it even if it is critically important (and it is).


  10. Anonymous says:

    First the elections laws not being enforced then the Boddentown candidates with questions as to their ability to actually pass constitutional requirements and now defendents not being allowed counsel in the Cayman Islands.

    There are problems with the judiciary in the Cayman Islands and the Governor or someone in authority in the UK need to sort this mess out for the good of the country.

    • Anonymous says:

      How can the UK do anything???  They’re too busy cheating on their expense claims…

      • Anonymous says:

        The facts behind what is happening here will no doubt be dealt with by the Chief Justice who is due to return to office, as CNS has reported, on Monday. 

        Rather than speculating and coming to inaccurate conclusions, it would be good if we could hold off for a bit for further information.

        It would indeed be unprecedented for persons facing a murder trial and who require legal aid to be denied.  The issue seems to surround funding and no doubt the Chief Justice will clarify this shortly.

  11. Anonymous says:

    Finally the issue is in the public.  It is a disgrace that this has been refused particularly in a case where no defence lawyers on island were prepared to take the case because of the threat that more lucrative commercial clients would abandon instructing the firms concerned if they accepted this murder.  Where is the rule of law on Cayman.  Nowhere – in which case we are no better than Zimbabwe where the rule oflaw has also been abandoned.  It doesn’t matter what they are alleged to have done these defendants deserve due process although it seems that Cayman has tried and convicted them without due process and so denies them that right.  It is not a way for a purportedly civilised and democratic society to act.

  12. Anon says:

    If these guys are innocent until proven guilty then they are entitled to a fair trial and decent legal advice. However strong the feeling is in the country, they should not be subjected to a Kangaroo court. Nobody here knows the full details about the case and the strength of the evidence but everybody thinks their guilty because they a. the police say they did it and b. they are Jamaican.

    Lets hope the police got the right guys and weren’t just finding a scapegoat to silence the public outrage after the murder. Justice needs to be seen to have been done here. That may even mean getting an independant jury in from overseas as the public feeling here is too strong that no local jury would give them a fair trial. if they areproven guilty after a fair trial then they should be locked away to rot for the rest of their days, but we can’t all jump to conclusions until the evidence against them has been proven.