Legal aid

| 16/10/2009

The Criminal Defence Bar Association represents criminal defence lawyers who work in the criminal courts of the Cayman Islands. Needless to say we support any proposal which broadens access to justice for those of limited means.

On Monday night, the Government pushed through a motion which will fundamentally change the allocation and provision of legal aid to those who cannot afford it.

No-one, not even the Government’s own legal advisor, the Attorney General, appears to have been forewarned. The far-reaching proposal was made and passed apparently without any notice to the opposition or any consultation with key stake holders such as the Chief Justice, the judges and magistrates of our criminal courts, the Attorney General, the Law Society, the Criminal Bar Association, the Clerk of the Court, the Human Rights Committee, or our own organisation.

The proposed reform appears to create an entity called the ‘legal aid office’ which is a mixture of a public defender’s office and legal advice clinic. The people of the Cayman Islands should be aware that such a proposal is entirely contrary to the advice of the Government’s own legal advisory body, the Law Reform Commission. In 2007 that Commission was directed by the Government to conduct a substantive review of the legal aid system in the Cayman Islands. After significant and exhaustive consultation, in July 2008 the Law reform Commission reported back to Government that:

“While the Commission agreed that the containment of excessive legal aid costs is in the public interest the Commission considered that the present system of provision of legal aid services by the private bar in general offers good value for money.

"A public defenders scheme would involve significant expense, going beyond just the salaries of the lawyers, to include secretaries and paralegals expenses which the private practitioners must currently assume as part of their own costs of doing business. The current legal aid system, the judicare model, provides a high calibre of service and is far less expensive ultimately than a public defender’s scheme.

"A Legal Aid clinic would not be appropriate to provide defence in criminal cases."

Plainly, any suggestion that the LRC’s Report supports the Government’s new proposal is wrong. The full report A Review of the Legal Aid System in the Cayman Islands can be read on the Legislative Assembly website.

Whilst we have not yet been provided with any of the proposed detail of the new scheme and it is, therefore, very difficult for us to comment upon an unknown commodity, we understand that the new office will be offering defence in criminal cases, advice and representation on labour law matters, landlord and tenant disputes, gender violence, family law, immigration issues and general civil advice. Whilst we applaud the commitment to offer free legal advice to a broader cross section of matters, we cannot fathom how the objectives are achievable on the figures which have been suggested in the media.

Crucially, we fear that as a result of these reforms, the standard of representation for those accused of grave crime will suffer, scrutiny of the police and prosecution will be undermined, and the innocent will be placed at greater risk.

Particularly alarming is the transfer of the administration of legal aid funding away from the Chief Justice to the Executive. The administration of criminal justice by an independent judiciary is the cornerstone of a civilised society and democratic first-world nations. The provision of high calibre representation for those accused of grave crime is a front-line service. This reckless reform damages the reputation of these Islands, and the consequences naturally extend beyond those who are directly working in, or are affected by, our criminal justice system.

Print Friendly, PDF & Email

Category: Viewpoint

Comments (35)

Trackback URL | Comments RSS Feed

  1. Anonymous says:

    "I am an expat that has lived here for some 30 years. Legal aid is not granted by the courts in many countries; so what Cayman is about to do is not new and I believe that the delivery of legal aid will be much better through an independent body once properly organised. In fact legal aid is hardly ever granted by the courts. I like many people who live here read what the various associations and the media had to say about the proposed changes. In general, the Human Rights Committee are concerned about the rights being breached and the various legal fraternities are worried that standards of justice will be dropped and the manner in which the change came about. The Hon. Leader of Government Business is worried about crime, its perception and cost at a time when Cayman is struggling to meet its financial obligations. It was interesting too to see how the media presented the story: Mrs. Pitcairn and Mr. McField refused to speak to the press  whilst the Chief Justice made no comment.  Words and impressions they convey and I wonder if the impressions are accurate.

     
    I cannot see any evidence of how any of the legal fraternities have added any value to the provision of legal aid with their comments. They have ridiculed and criticized Mr. Bush’s effort but have not shown how they intend to contribute to legal aid, financially or otherwise, to make it better for the islands. Foreign lawyers in these islands earn millions of dollars every year. Many of them earn between CI$5-10 million a year. When Walkers downsized, its criminal practice was the first to go. The HRC is comprised of lawyers, if they are so concerned about the rights of legal aid recipients why don’t they ensure that they contribute their own time and defend those that need it the most in the criminal courts. The same can be said for the Law Society and the Bar Associations. The MLA from North Side, Mr. Ezzard Miller referred to this new found altruism of the legal fraternities and he is right; these bodies had an opportunity to actually do something for legal aid and did nothing.
     
    Which leads me to my final point. This debate is really not about legal aid, but about money, power and race.  It is not about how the Caymanian people will be better off by a new system with great potential but legal fraternities hiding behind the pen behaving like bullies (because they can), the prestige and power that will be lost by some and the loathing this island has for black people, especially persons like Mr. Steve McField and Mrs. Theresa Pitcairn who although educated and cannot be manipulated are easy targets to stone. The hypocrisy is made easier because Caymanians still resent their own people, especially black people who are articulate and not invisible.  The white professional expatriate lawyers salivate when an opportunity like this arises because they can now be seen to be supporting "Caymanians" (and in this case the Caymanian lawyers) while expressing their true resentment and fear. The fact that so many people have mixed feelings towards Mr. Bush, combined with the resentment held by the two PPM ministers who also voted against the effort, makes it even easier to have this display of what is really hate masqueraded as concern.
     
    It did not escape many of us that neither the HRC, The Law Society nor The Bar Associations came out as they did to express their disgust towards the ways in which the rights of Caymanians and the poor from the region are trampled in the work place, for example. 
     
    Although I am an expatriate I am from the Caribbean region and I left my country because of what I am seeing in Cayman today. Escalating crime and brewing tensions in the face of an economic crisis is a recipe for social instability. Lawyers in other Caribbean countries have been at the forefront of fighting the good fight for the people. It is ironic that the role of the lawyers in the Cayman islands however appear to be the complete opposite."
    • Anon says:

      Had this been a truly independent legal aid office proposed I wouldn’t be having a problem with it, but how can anybody with a legal and political background possibly be considered independent?

    • Anonymous says:

      You appear to be missing the principal point which is that what we are objecting to is the obvious risk of politicising the administration of justice by placing the administration of legal aid under a politician’s ministry. It is not about it being separate from the judiciary.  

      You spend much of your article bashing lawyers but not unfortunately it is not based on knowledge and understanding.

      "[The legal fraternities]have ridiculed and criticized Mr. Bush’s effort but have not shown how they intend to contribute to legal aid, financially or otherwise, to make it better for the islands. Foreign lawyers in these islands earn millions of dollars every year. Many of them earn between CI$5-10 million a year. When Walkers downsized, its criminal practice was the first to go. The HRC is comprised of lawyers, if they are so concerned about the rights of legal aid recipients why don’t they ensure that they contribute their own time and defend those that need it the most in the criminal courts. The same can be said for the Law Society and the Bar Associations. The MLA from North Side, Mr. Ezzard Miller referred to this new found altruismof the legal fraternities and he is right; these bodies had an opportunity to actually do something for legal aid and did nothing".

      What you do not understand is that the only group which does do something for legal aid is lawyers. When a lawyer agrees to accept 1/3 of his standard hourly rate to provide representation to the indigent he is donating 2/3 of his time. When he uses his support staff to assist him in the provision of legal aid services this is not remunerated. 

      It is reprehensible that you have stooped to attempting to distort the issue into one about about hate, racial prejudice and crabs in a barrel mentality against Mr. McField and Mrs. Lewis-Pitcairn. There is absolute no basis for such comments. It perpetuates a feeling of victimhood that has held our people down for too long. It does us no good to disregard the substance of fair criticism and attribute the fact of criticism to racism. This is the stuff that demagogues thrive on.    

  2. Anonymous says:

    With all respect why is Theresa Pitcairn qualfied for this job?  Wasn’t she a corporate attorney?

  3. Anonymous says:

    "Hopefully the Law Society and Caymanian Bar Association will not remain silent."  DREAM ON! The Caymanian Bar Association has only one function – to protect the income of its members.  Given that two of their presently underemployed members have landed a safe government job out of this, I doubt the CBA will say anything.

  4. O'Really says:

    It’s already been noted in this thread, but seems to have been overlooked, so I’ll state it again. This article was produced by the Cayman Islands Criminal Defence Bar Association, not by the Caymanian Bar Association. They are not the same.

    Both Steve McField and Theresa Lewis-Pitcairn are past presidents of the Caymanian Bar Association, so it will interesting to see if we get any objections out of the CBA.

    • da wa ya get says:

      I think you were refering to my previous question; I was aware when I asked my question that this article was written by the CICDBA, and I am aware that they are not the same as the CBA.

      I’m sure there will be objections, whether the public gets to hear those objections will be another thing altogether.

      • O'Really says:

        No not directed at you. My comment was a general one since I would expect the CICDBA’s position to be supported by the other industry bodies, yet I have my doubts, particularly about the CBA. 

  5. da wa ya get says:

    My question is: Can the Caymanian Bar Association sue the government for malfeasance on behalf of the Caymanian people?

    Clearly, the government’s intent was to pass this legislation without notice to the appropriate parties in the late hours of a session. Clearly the intent was to go undetected…which suggests that they knew that they would meet justified resistance from the AG, CJ and opposition.

     

    • Anonymous says:

      The last time the CBA tried to sue the UDP Govt. for malfeasance (the status grants) it was stymied in its efforts by (1) difficulty in finding an attorney to represent it due to fear of Big Mac; and (2) a major split in the association where those members who were loyal to the UDP or to clients who had benefitted resigned. No chance of it happening now.       

      • da wa ya get says:

        That is true.

        Seems like no one (besides Clifford) ever had the cojones to stand up to Mac. Sad state of affairs my country is in.

        • Anonymous says:

          Clifford had the cojones to stand up to Mac?? By running to Desmond and suss-sussing to him and leaking confidential civil service documents to him to try to advance his election chances?? Jesus! Puleese!

      • Anonymous says:

        Obviously written by a non-lawyer, since all that could have been contemplated was a judicial review.  The CBA was only concerned about feathering their own nests and restricting the opportunities for attorneys who received status grants. 

        • Anonymous says:

          Judging by the squeal that stone hit a pig.

          "Sue for malfeasance" was simply adopting the non-technical language of the post to which I was responding. 

          There were many CBA members who had legitimate concerns about the legality of the status grants and its implications for the rule of law generally in the Islands. That is the business of lawyers.  

          Hint: one of the fundamental objectives of the CBA is to promote the interests of Caymanians at the Bar. The status grants certainly undermined that. It was the Caymanian ‘sellouts’ who opposed the CBA action.  

          • Anonymous says:

            Hint : suggested edit "one of the fundamental objectives of the CBA" should be "the only objective of the CBA".  It is a trade organisation that seeks to use a passport to leverage the income for their members.  Pure and simple. 

            • Anonymous says:

              Rubbish. The CBA has made valuable contributions in many areas that have nothing to do with the income of its members. That is simply a malicious comment.  

              But all that is besides the point which I recognize you are endeavouring to obfuscate. 

            • Anonymous says:

              Funny,  it would be far more accurate to describe the Law Society as a lobbying organization existing for the benefit of the income of its members than the CBA but you have neglected to mention them.

  6. Anonymous says:

    Thank You Cayman Bar Association for your article. Please keep on top of this.

    Human Rights Committee please provide your say! Fair democracy depends on those few bodies who will speak up.

    Clearly UDP, CMA have their agenda to just do whatever they want.

    UK FCO, please speak up also!

     

    • the Mexican Bandit says:

      Rights?  You want rights?  Rights? We don need no stinkin rights!

    • anonymous says:

      The posting was by the Cayman Islands Criminal Defence Bar Association, NOT the Caymanian Bar Association.  The latter is merely a lobbying group; the former is concerned with justice and the right to a defence against criminal charges.

    • Anonymous says:

      Hear Hear! The following quote from this commentary is the crux of the matter:

      "The administration of criminal justice by an independent judiciary is the cornerstone of a civilised society and democratic first-world nations. "

      It seems we are going backward in our development to become something we never were – a third world banana republic.

      I hope that the Bar Association along with the Human Rights Commission and even the FCO can right this disastrous mistake.

      It seems our Premier Designate has negated the concept of innocent until proven guilty. I wonder if he would feel the same way if he’d ever been taken to Court for his alleged transgressions.

      Oh – but I forgot – with his XXXXX campaign contributions – he would have ample money to pay for the best defence.

      Shoot – why don’t we just bypass the court system and start with extra judicial killings?

      A vote of no confidence in the House is sorely needed. Will the timid PPM at last speak up and be an effective Opposition?

       

  7. Anonymous says:

    This article was needed and I hope that the Bar Association will keep on top of this madness publicly.  This seems to me just another of the UDP’s famous moves (Mac’s really) to create jobs for their croonies and Mac gets to control the purse string.  I’m certain we can all figure out a few of those croonies we will see being appointed as ‘Lawyers’ within this scheme…..Cayman…my wonderful Cayman! Where oh where are we headed under this dark cloud once again upon us!

  8. Anonymous says:

    Why are the Human Rights Committee not speaking up? 

    • Anonymous says:

      Because it doesn’t have anything to do with gay rights- have you heard them speak out about anything else?

    • Anonymous says:

      They are afraid of McDinejad. The press is too. Look what happened to Desmond Seales because he dared criticize. The environmentalists are also afraid. They were very bold with the PPM, but only because they knew the PPM might actually listen and would not vindictively seek to do them harm. We re-entered an era of fear and intimidation than we escaped in 2005.  

    • Anonymous says:

      McJinedad disbanded the HRC months ago

  9. Anonymous says:

    Thank you for speaking out against this ill concieved notion. Hopefully the Law Society and Caymanian Bar Association will not remain silent.

  10. Anonymous says:

    Amen !

  11. Anonymous says:

    I agree with you. This is well written and so true. Please do not let this be your last posting. You are the persons best able and qualified to comment and put forward rational thought.

  12. Anonymous says:

    Excellent article. My congratulations to the Caymanian Bar for writing and publishing it.

  13. Anonymous says:

    Caymanians – every Caymanian and person in Cayman, but especially those who would not be able to afford their own legal aid in the event that they are accused of a crime, should be outraged and demand that this situation is rectified immediately.

    If this country can’t afford to provide legal aid for its accused low income citizens – its can’t afford to NOT have some more rigorous revenue system (property or community or pay roll tax, lottery etc) – and Mr Bush is proving this to us and to the world with each move of this sort.

    • Anonymouse says:

      Actually, Cayman can afford it. That was the originally approved budget. (Approved in full for the first time in a few years IIRC.) This is a disagreement on how the money is spent, not how much money is spent. One side says a ‘legal aid office’ will work better and cost less. One side says ‘no, it wont’. The middle may say ‘show us the money’ and ‘tell us how’ to the first side, but thats another story.

       

      I do find it interesting that a government that is tryign to privatise parts of government to improve efficiency has now nationalised a public service, for the very same reason.

  14. Anonymous says:

    Chip by chip, stone by stone our modern democracy is being eroded or taken apart. The scary thing about this is that the monies were taken to make donations to the Church.

    I am all in support of Christianity and the Church, however, I believe you should give your own 10% — from your own salary and should not use the coercive powers of the state to extract monies from the citizenry so that you can further your own faith and belief system.

    So now its come to this, $1.8 million is too much to spend to uphold one of the pillars of justice and democracy, however, we will gladly ask the tax payers to pay to build my church and pay my trucker friends who entered into a work contract with a failed business.

    These are very dark days for Cayman.