Justice risking HR problems

| 11/02/2014

(CNS): While the courts have already handled a number of human rights cases challenging various government agencies' decisions and actions, the courts themselves and the criminal justice system are also at significant risk of human rights challenges as a result of legal aid issues and delays due to lack of resources. Earlier this year the chief justice pointed out that defendants were becoming increasingly aware that the law requires people charged with offences that could result in jail time to be represented but the public legal aid scheme does not recognize all of these crimes, leaving defendants, especially in the summary courts, without lawyers and the system vulnerable to human rights challenges.

During the formal annual opening of the courts last month Chief Justice Anthony Smellie made a number of observations and warnings that should give the authorities cause for concern. While the government is strapped for cash, with enormous pressures on the public purse, the lack of investment in the criminal justice system may in the end prove far more costly to government than increasing the court's resources.

As more and more laws are enacted or expanded and criminality and anti-social behavior is on the rise, cases across the entire court system are increasing. But it is in the area of crime in particular that the issues of human rights will be most likely to emerge.

The top judge warned that people charged with what the law regards as less serious offences, which are not expressly provided for under the Legal Aid Law, means that many people are being tried and convicted then sent to jail without legal representation.

“This presents great difficulty for the Summary Courts, as defendants charged with these less serious offences are awakening to the Constitutional protections which mandate that as an aspect of the right to a fair trial, legal representation for those who cannot afford to pay shall be provided at public expense through an established public legal aid scheme as prescribed by Law,” Chief Justice Smellie warned.

“It goes without saying that the existing allocation for legal aid would be grossly insufficient to extend cover for all such offences as well. Nonetheless, I am bound to express the Judiciary’s concern about the fairness and perhaps even the constitutionality of a system that fails to provide assistance to persons in need and who are charged with any offence that could result in loss of liberty,” he warned during his presentation to the court.

He said that there was already an increase in the number of cases being funded via legal aid, including serious criminal, child care and constitutional cases coming before the courts. Applications for criminal case in 2013 increased by almost 100, up from 276 in 2012 to 370, a jump of 34%. Meanwhile, civil cases requiring government funds also increased some 12%, from 281 in 2012 to 313 last year.

The judge noted that government had increased funding for legal aid in 2013-2014 budget but he said it would not be enough to address the growing concerns. However, he noted the attorney general’s “guarded optimism” that the government would be examining the issueagain.

In addition to the lack of legal aid funding, the chief justice raised concerns about the workload in the under-resourced court system and the ongoing delays, which he said were due to a number of reasons, not least the lack of court space. But he also pointed the finger at more effective case management on the part of the police, the prosecution, the defence and even the courts, which he said would be the focus of attention of a committee established under the leadership of Justice Charles Quin.

Smellie said a new court house was essential now to allow simultaneous trials, which are necessary to ensure the right to timely trials guaranteed by the Constitution.

“This need is again clearly demonstrated by the increasing back logs in the Criminal Divisions of both the Grand and Summary Courts,” he said pointing to a year's back log in both the Grand and Summary courts.

He explained that in the Grand Court Criminal Division, 94 indictments were carried over from 2013 to this year compared to 62 carried over from 2012.

“At recent rates of disposal, 94 indictments represent more than a year’s case load and is therefore indicative of a now chronic situation requiring persons having to wait for well over a year for their trials. This is more than twice as long as the established international bench mark of 6 months – that which had been maintained in the Grand Court for many years. Regression in this area cannot be an acceptable state of affairs,” he warned.

In the Summary Courts 1,579 new charges were filed in 2013, an increase of 300 from the 1,260 filed in 2012 with 1,230 carried over into 2014. Despite including 159 cases under review in the courts’ diversionary treatment programme, it represents a year’s backlog in the Summary Courts as well.

“Waiting time to trial is impacted in much the same way as in the Grand Court – borne out by the fact that trial dates in the Summary Court are now being set for as late as August 2014.   I am sure everyone will agree that such a state of affairs belies all notions of timely and effective justice,” he warned, adding that government must address the court house and the resources issue for the jurisdiction to maintain its reputation for timely and effective dispensation of justice.

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Category: Crime

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  1. Anonymous says:

    If everyone did their jobs in a reasonably competent way, you wouldn't even have to think about "HR" violations.

  2. Anonymous says:

    I'm just waiting for the first HR challenge to the immigration policy of denying the right to a family life. Soon come.

    • Anonymous says:

      Or the challenge to permit equivalency fees paid by permanent residents.

  3. Anonymous says:

    But yet we have legal aid funds to support a ridiculously out of time judicial review claim and four ladies from West Bay suing their own government!

  4. Anonymous says:

    Nothing new here, this was being predicted back in 2007. The problem is CIG has signed up to ECHR but is now trying to ignore it. I suspect that's going to be an expensive mistake.

    • Coconutz says:

      The problem in the Cayman Islands is that "tings" are a mess.  Everyone is more or less flying by the seat of their pants and nobody knows what is heads and what is tails.  As 18:02 rightfully pointed out, "it's going to be an expensive mistake".  The present judiciary, unlike in Russia, Zimbabwe, etc. cannot be bought – therefore, whenever the CIG is found in contravention of ECHR laws it's going to cost them.  Knowing the CIG, it's going to take at least 100 years to recognize that there's a problem.

    • Anonymous says:

      The ECHR was correctly imposed on the Cayman Islands by the UK.  It is an issue for national governments not local government, so what the CIG thought about it is not really relevant.