Restore legal aid to court, says CJ

(CNS): The country’s top judge has called on government to return the legal aid budget to the judiciary and remove the continuing uncertainty surrounding the funding of legal representation. Speaking at the official opening of the 2011 Grand Court session, the Cayman Islands’ chief justice, Anthony Smellie, said that although both the law and the country’s Constitution place the responsibility for legal aid and the duty to ensure fair trials on the courts, no budget had been allocated to them to fulfil their essential functions as the money was given to the Ministry of Finance instead. Smellie urged the government to restore the legal aid budget to the courts. (Photo by Dennie Warren Jr)

“While, as a purely administrative exercise, the bills are being paid as submitted by the judicial administration, we could not agree, as proposed by the ministry, that the ministry should be able to override the judiciary’s decisions, made under the law, to grant legal aid,” the chief justice said.

He pointed out that the subject of legal aid had been thoroughly examined and the existing system found to work well. He called for the executive arm of government “to allow matters to return to normalcy”, suggesting that any necessary improvements to the existing system could readily be addressed.

The premier first announced his decision to take the legal aid budget into his ministry at a late night sitting of Finance Committee during his government’s first budget meeting at the Legislative Assembly in 2009. The plan at the time had been to open an independent legal aid office with two local attorneys at the helm. However, while the proposed legal aid office has not yet materialized, the budget appropriation has remained in the Ministry of Finance.

The chief justice said that returning the legal aid budget would restore a sense of permanence to the administration of justice for the Islands. “This is vital to the ongoing ability of the courts to ensure that there are fair trials in criminal cases in particular, as it is also in respect of many cases involving the welfare of children and families,” he said.

He pointed out that the uncertainty surrounding the issue was also causing problems with legal representation. “At the best of times the number of lawyers who have been willing and able to take on criminal cases has been very small relative to the overall size of our bar,” he said, adding that the number had dwindled recently in response to reasonable concerns over the legal aid system.

“As all but a few of the criminal defendants facing serious charges qualify under the law and so must be given legal aid, the defence lawyers are called upon to dedicate themselves to a practice that depends almost entirely on legal aid funding. It is simply unreasonable, therefore, to expect them to do so in a prolonged climate of uncertainty,” he added as he thanked those defence lawyers who had been willing to carry on regardless.

James Bergstrom, the president of the Cayman Islands Bar Association, also raised the issue of legal aid in his presentation. He pointed out that the association had supported the Law Reform Commission’s findings in the report which was tabled in the Legislative Assembly in 2008. This report found that the legal aid system administered by the courts offered value for money and endorsed the system, with some recommended improvements that the chief justice said had been identified and agreed. In thewake of the premier’s announcement that he wished to change the way legal aid was managed, a committee was established by Cabinet to examine the subject. That committee completed a report in March of 2010. However, the report has not yet been made public.

Bergstrom called on government to reveal the report as he emphasised the importance of a legal aid system and asked government to return the responsibility to the courts, which are responsible for the administration of justice. “The current situation is unsatisfactory and we want to see it brought back to the courts,” he said.

CNS made an FOI request for the report last year, which was denied because the ministry said the report had not yet gone before Cabinet. Since then, we have askedfor an internal review, the outcome of which has not been revealed despite several months having passed. The issue is currently being investigated by staff from the Information Commissioner’s Office.