HRC says legal aid is a right

| 20/10/2009

(CNS): Access to legal representation paid for by the public purse is a right enshrined both in Cayman’s new Constitution and the European Convention on Human Rights, the Human Rights Committee said on Tuesday. Following statements made by the leader of government business on the radio last week and the recent announcement of policy changes to how legal aid will be funded, the HRC has raised concerns. It said that the assumption of innocence until proven guilty should be reaffirmed by government and warned that the reduction in legal aid spending could lead to delays in the courts and much higher costs in the long run.

On Monday 12 October, as Finance Committee proceedings drew to a close, Leader of Government Business McKeeva Bush introduced an amendment to the budget to remove $1.5m from the chief justice’s legal aid appropriation, leaving $300,000 in the allocation for remaining cases. He said government would be changing its policy on how the benefit would be funded in future as two local lawyers would be establishing a legal aid clinic on a reduced budget.

In the face of surprise from the opposition benches and in the absence of the attorney general, Bush said the new clinic would be allocated $500,000 for this year, which would from now on come from his Ministry of Finance, with plans to increase the grant to $1.2 million next year – but still more than $600,000 short of the amount which had originally been allocated.

The HRC said that as the proposals have not yet been finalised it was cautious about making any comments until its members have had an opportunity to review and consider the final terms of the new scheme. However, the committee raised a number of general concerns, including fears that the $300,000 left as an appropriation would not be adequate to meet the pending cases.

“If this sum runs out before all cases are finished, and current lawyers are not provided with further funding, they will be unable to continue to act. In such a situation the new public defender’s office will be faced with having to repeat work already done at public expense. The delays and wasted costs will be significant,” the HRC warned.

The committee said it was particularly concerned about comments made by the LoGB on the radio, as reported on CNS last week. The HRC explained that under the Cayman Constitution, Article 7 will provide that everyone charged with a criminal offence has the right to a fair trial and, amongst others, the right to be presumed innocent until proven guilty.

Bush had said that "the country should not have to pay to get criminals off the hook" and that he was "no longer prepared to vote money for lawyers to defend people who shoot up our children”, during his appearance on Rooster’s morning phone-in show, Crosstalk.

The committee observed: “This is one of the most fundamental tenets of any civilised criminal justice system and the HRC is confident that the reasoning behind it is so obvious as to require no explanation. The HRC believes that, in the light of those statements, the government should reaffirm its commitment to the fundamental principle that all defendants have the right to be presumed innocent until proven guilty.”

The committee also said people had a right to have a legal representative provided at public expense through an established public legal aid scheme if they did not have the means to pay for their own legal assistance and they faced serious criminal charges.

“The new Constitution makes specific provision for the provision of legal representation at public expense. This particular constitutional provision is based on principles enshrined in the European Convention on Human Rights.”

LoGB said last week, “Whilst the system of jurisprudence might say everybody deserves a fair trial, nowhere does it say that the country should pay for it." However, the HRC said that as matter of law that position was wrong. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights. Currently, residents of the Cayman Islands can enforce these rights through petition to the European Court in Strasbourg. Cayman’s incoming Constitution will import the rights directly into local law.

The HRC also warned that under the Constitution those charged with a criminal offence have the right to a lawyer, and this does not mean just the presence of an attorney but the right to a proper defence and to ‘equality of arms’ with the prosecuting authorities who are financed by the state.

The HRC noted that the budget allocated to the new legal aid service was $1.2 million and that it was proposed that this sum would cover not just criminal defence but also employment matters, landlord and tenant disputes, domestic violence issues and, presumably, civil and matrimonial legal aid (as the former budget did). "It is worthy of note that it currently costs over twice as much as this just to prosecute criminal allegations,” the committee said.

Welcoming the government’s commitment to the funding of legal services for all these diverse areas, the committee said it was concerned that the suggested budget would be far too limited to provide proper services. The previous legal aid budget was extremely tight and these further cuts are significant. With insufficient defence lawyers and resources the already lengthy delays in the criminal justice system will increase, it feared.

“If trials cannot be heard within a reasonable time defendants and the victims of crime will suffer, as will the quality of justice as witnesses’ memories fade,” the committee stated. “Criminal litigation is a highly specialised, complex and technical area of law. Therefore, in order properly to defend Grand Court cases, sufficiently expert criminal lawyers will have to be recruited. The HRC notes that at present no explanation has been given for how such suitably qualified experts will be recruited.”

 With many questions still remaining unanswered about how the new legal aid clinic or public defenders’ office will function and how it will be funded, the HRC said it looked forward to the opportunity to review the new draft legal aid law which will be needed before it can come into force.

“The HRC looks forward to having the opportunity to comment on these important Bills and to being able to see, in detail, the substance of the government’s new plans for Legal Aid,” the committee said.

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  1. Anonymous says:

    Oh come on, people. If you had just busted your brains to qualify as a lawyer and you got stuck with having to defend a case, how would you approach it?

    1. After careful deliberations with your client, you decide that he/she will incriminate themselves so you recommend that they do NOT testify.

    2. Cast as much doubt on the forensic evidence as to render it useless or circumstantial?

    3. Attack the character or the complainant/witnesses character in order to instill doubt into the judge’s/jurors’ mind.

    The point I am making is that the guilt or innocence of the accused was never the key factor in the equation, and this is a sorry indictment on our legal system today.

    I hope and pray that the next crop of Caymanian lawyers that graduate from the Cayman Law School and affiliated with the prestigious University of Liverpool are a bunch of tigers, hungry for truth and unswayed by lies and technicalities, regardless of whose side they are on.

    May God bless the Caymanian lawyers. 

    • Crop Top says:

      No, they all want to be funds lawyers, work is easy, money is good and they can use their passport to get promotions.  And if you don’t get a promotion you can always persuade the LOGB to give you the entire Legal Aid budget even if you have no experience of criminal law.

  2. Ex Pat says:

    This is not how the legal aid system was designed or how it was intended to work.  This is interfering with the basic human rights that Legal Aid was set up to protect.

    • Anonymous says:

      I totally agree with the HRC, & I totally agree with the letter in the Compass today by the Defence Lawyers group (I forgot the correct name). This is very scary stuff. Legal Aid should not be interfered with by Mckeeva Bush or any other politican (or by his 2 appointed cohorts who have to answer to their lord & master). And he expects us to believe that there will be no interference by him, baloney & hogwash! The most upsetting aspect of this issue is the fact that there was no consultation done with anyone by Mckeeva Bush concerning this matter, it was simply sprung upon the elected members out of the blue & a "vote" (if it can be called that, we know his puppets too well) was done. Since when does ONE man have so much power? This is very scary stuff.

      CNS: The letter by the Criminal Defence Bar Association was posted on CNS as a Viewpoint last Thursday night (see Legal Aid) … not that I want to rub it in or anything.

  3. Anonymous says:

    The Government’s decision is illogical in view of the LRC report which categorically states that the proposal will cost more rather than less money AND provide a poorer service to the community.

    As such, the development raises a number of questions which the Government must answer:
    First and foremost, if the reform neither saves money, nor improves the quality of service, in whose interests was this decision made?
    If the aim of the Government was to save money and improve quality, why were normal tendering procedures not observed?
    On the basis that at least one MLA must have met with Steve McField and Theresa Pitcairn in advance (of the unexpected proposal on Monday of last week), why was the Government’s own lawyer (the Attorney General) not put on notice? Why was the Chief Justice not put on notice? Where is the written proposal?
    Why has the contract been given to Steve McField and Theresa Pitcairn? – persons who do not normally appear in court or undertake legal aid work. How much are they being paid in their new roles?
    Why has such a significant amount of taxpayers money been allocated in such reckless and slapdash manner?
  4. Anonymous says:

    Every criminal now has a built in appeal against conviction (even if crown manages NOT to bungle it up). Right to fair trial breached. My lawyer messed me up because they not qualified or experienced.

    And all the cost of the appeals will be paid for BY THE CROWN!

    so what "savings" is Cayman going to get?


  5. Anonymous says:

    The HRC says that it currently costs twice as much to prosecute allegations.  The HRC is compari g apples to pears.  Legal Aid is not granted in all cases and so the prosecution are dealing with many more cases – figures unknown but probably 3 times as many cases than the legal aid budget is.  This argument is therefore totally fallacious and misleading.  The prosecution costs also include costs of bringing witnesses to court and so forth.  HRC please do not discredit yourselves by running bad arguments.

  6. Anonymous says:

    big mac, big mouth.. small brain.

    after the inevitable  u-turn on this i also request steve mcfield to resign and to go back to his war on sunday trading and lottery…..

  7. what a mess! says:

    Thanks HRC

    And thanks to the UK that we even have a body such as the HRC.

    We know from the tone that both the UDP and especially the PPM took with the HRC during the Contiutional Modernization process that neither of them want the HRC in their way.

    When will we learn that to deny the people Fundamental Human Rights will always lead to Social Problems (crime, frustration, ill health, disregard for human differences, failed societies etc, etc). This has been proven over and over throughout history.

    And for the LoGB to do this without any proper consultation is just plain wrong…and shows total disregard for the law. He is in effect telling people that a legal trial is unnecessary! Is he looking to also be in charge of the courts? This seems more like a move one would expect from a Dictator.

    Again: "not only must justice be done, it must appear to be done"!

    And where oh where is CMA in all of these ongoing issues?…(silent because it’s not about Gays!)…and because they are getting theirs!

    Please HRC, UK FCO, keep on top of this….


    • Anonymous says:

      no thanks to FCO that we have a HRC, my friend.

      The previous govnt – Alden – established and chaired the committee before stepping down to allow it to be independent.

      the CMA are happy to go along with anything mac does now that he promised to change Pirates Week for the (plus no gays in this one)

      • what a mess! says:

        Well aware that Alden established the HRC…however he did not do this completely on his own. As UK required that such a body be established before Constitutional Modernization talks could commence.

        I applaud Alden on his genuine efforts to establish this overdue body! However the UK must be applauded for ensuring such also.

        My concerns were/are that both leaders of UDP and PPM spent so much energy to try to discredit HRC…seemingly to appease the CMA and secure this large voting bloc…while doing little to "educate" themselves or the Cayman public of what "Human Rights" are truly about…allowing misinformation by CMA and inciting hateful Gay bashing rhetoric to go on unchallenged.

        In my view this is iresponsible (of UDP, PPM, Governor and others) and has, in large part, contributed to Cayman’s growing social unrest.

        I do believe that if Alden had been the leader of PPM we might have had a better chance of this needed education happening.

        Sad and alarmed at where Cayman seems headed!

  8. Anonymous says:

    This proposal has teed up years of succesful appeals by wily hardened criminals at the expense of the improper convictions of badly defended but innocent defendants.  If I was arrested for a serious offence right now I would be thanking Mac for his antics.