Restore legal aid to court, says CJ

| 12/01/2011

(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.

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  1. Just Commentin' says:

    This might be off-topic but I cannot keep silent any longer!

    Am I the only one here who thinks the picture accompanying this article looks like it should be next to a story about Halloween? 

    Is there anyone else here who has to suppress a smirk or swallow a giggle every time they see a picture of a grown man or woman in a really bad wig and a scarf that looks like something snatched from under my grandmother’s toiletry tray?

    My god! This is the 21st century for chrissake!  This is embarrassing to me and I am pretty thick skinned. I feel for Mr. Smellie. He should be able to command respect by the way he dresses.

    I know, Iknow, traditionally such attire was worn so the wearer appeared imperious and dignified. In this day and age such garb is just foppish.

    To hell with tradition! Judges and government officials should not be subject snickers and giggles because they are made to dress like a character one would expect to see on a float at a San Francisco "Pride Day" parade. The cute curly wig and frilly scarf ensemble needs to GO!

  2. Anonymous says:

    No reason on earth to let the judge decide how much money to spend.

  3. Judge Dredd says:

    Now that Steve McField is employed as a) standing counsel to UDP MLA’s facing criminal charges and b) generally available Caymanian for UN jollies, surely if Theresa Pitcairn has a job then there is no reason for the proposed legal aid reform to go ahead. 

    • Anonymous says:

      I believe Theresa is also in court with her case against Maples & Calder, but somebody has to decide if Steve is going to be paid by legal aid or by his client.

      • Aqua Bono says:

        I suppose at least Theresa is getting some litigation experience, given that she did not seem to have any the time she was tipped to head up the most important public defence litigation position in the country.

  4. Anonymous says:

    If the Premier announced in 2009 that he was going to setup an independent legal aid office, and it hasn’t been done yet, then we would have to assume that Civil Servants have yet again put "stumbling blocks" in his way. lol.

  5. anonymous says:

    Our Premier is busy grabbing power not giving it up.  Why would the Chief Justice think reason would prevail here.


    Also keep in mind that we (the people) do not need to know what is going on.  We are not capable of understanding it.  This is the attitude that Government is taking.

    Justice is not important to them Power is.

    • His cronies says:

      And take the bread out of his 2 mouth peices? No Way!

      There is no way he will listen to the Hon Chief Justice!

  6. An honest voting citizen says:

    Mr. Justice,have you only now realized that the Premier wants to control you too. It was only sweet talk about opening the office And Mr. Steve Mc. Field and Co. swallowed the bait, sinker and all. No he would rather spend it on travelling. Pretty soon he will try and control the Judicial System.That’s why he wanted all the portfollios to begin with. And all the other UDP elected reprensentatives can do is sit and watch and do nothin. What a feeling eh! Unless someone has the courage to stand up and say enough to this one man show we will have no choice but to deduct that those are their views also. Good luck with that one Mr. Justice we sure can’t get any answer trom him. All I can say get ready to have a very busy court session according to the high level of crimes if they ever get caught.But wait if their in prison they can’t vote right? 

    An honest voting citizen