HRC says legal aid is a right
(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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