KINGSTON — For years, the Legal Aid Council has been defending the rights of persons of modest means in crime related matters, as it carries out its mandate of administering legal aid across Jamaica, ensuring that no citizen is denied access to justice.
An arm of the Ministry of Justice, the body was established by the Legal Aid Act, which was passed in 1997 and came into operation on May 1, 2000.
According to Executive Director of the Council, attorney-at-law Hugh Faulkner, in a recent interview with JIS News, the legal aid system is in place as “there must be an institutional regime that provides assistance for Jamaicans who cannot afford an attorney at a particular time in the criminal justice system”.
“No one should be denied access to justice, on the basis that they cannot afford legal representation,” he says.
Under the legal aid system, one of two major categories of assistance is the Duty Counsel scheme, where the services of a lawyer is provided to persons for the period they have been taken into police custody, up to their first court date.
Mr. Faulkner notes that over 400 people per annum benefit from this stage of support, where the Counsel gives legal advice to persons who have been detained and not charged; to face an identification parade; to be questioned by the police; and in need an attorney to apply for station or court bail. These services are provided free of cost.
“There is no cost for detention or charge up to first court date…there is no application form. We just have to be informed that you are in custody and need assistance,” he explains.
He notes that in this instance, the police should tell detainees that they are entitled to a lawyer, and relatives can then contact the Kingston or Montego Bay clinics, or the Council.
“Each police station has a list of the lawyers who are assigned to that station to be on call for Duty Counsel. So Duty Counsel, (at) that first stage, (there is) no cost and no application forms and we seek to operate on a rapid response basis,” Mr. Faulkner says.
The other category of assistance under the system is legal representation in the courts. Persons are entitled to a lawyer when they have been charged for a criminal offence and their matter has reached to either the Resident Magistrate’s, Circuit, Gun or the Appeal courts,and are going through the processes to trial, or to plea.
There are however some exceptions to being granted legal aid. Money laundering and certain drug offences are not matters dealt with by the legal aid system. Mr. Faulkner says this includes petty sessions as well, “because petty sessions are matters that are tried by Justices of the Peace, so those matters would not attract legal aid.”
However, if a child is charged with a petty session offence, the child would get legal aid because the children’s court is presided over by Resident Magistrates and not Justices of the Peace, he further explains.
To receive this aspect of legal aid, Mr. Faulkner notes that there is an application form that has to be completed by the person who is charged, or relatives who know the personal details of that person and can supply them to complete the form.
“This form carries a means test section to ascertain to what extent this applicant is able to contribute to the cost of legal representation. But, if the applicant is unable, an attorney is still provided, and if they say they can contribute $5,000, $3,000, $10,000, $1,000, even if they don’t pay the money, they will not be denied legal access,” he said.
He added that while the system was put in place to assist those who are facing economic challenges, there are instances when lawyers believe that persons access the system who can afford private representation.
“But, we have decided to grant you, rather than deny you. So we will err on the side of granting it, than withholding legal representation,” he admits.
However, he pleads with people who you can afford it, to seek private attorneys and let the resources be channeled to those who are in greater need.
Mr. Faulkner says that thousands of individuals benefit per year from these court assignments.
“When we tabulate the matters we have completed in criminal courts across Jamaica, more than 2,000 (legal aid) matters would be completed per year,” he says, adding that in excess of 6,000 persons per annum get assistance with civil matters from Legal Aid Clinics.
Mr. Faulkner explains that while the Legal Aid Act allows civil assistance, currently, legal aid is granted only for the criminal mattersa Jamaican may face, whether on suspicion or whether charged. He adds that civil aspects, which would involve suing for debt, a dispute between landlord and tenant for rent, a dispute over land boundary, is not yet offered under the criminal legal aid system.
Though the Council supervises the operations of two Legal Aid Clinics, which have a “reporting relationship by law to the Council”, Mr. Faulkner notes that the Clinics have their own Boards of Directors and direct their general day-to-day affairs.
The work of the Council is carried out by the panel of attorneys it maintains, who willingly offer their services to persons who are in need of legal aid. These attorneys are drawn from all across Jamaica, and operate in the various courts islandwide. There are currently 352 attorneys on the Council’s panel, including senior and junior attorneys.
“(Of) The lawyers empanelled, 99 per cent are private lawyers, the very lawyers that a person who would seek private retainer would go to,” he notes.
While expressing gratitude for the service of the lawyers, he implored them to always give of their best, when assigned legal aid cases, as they would in private practice, noting that it is “a moral and professional duty on lawyers to do that, so that the system survives us and is there for Jamaicans now and Jamaicans to come.”
“We are asking attorneys to ensure that every (legal aid) assignment you accept, as a private attorney, you’ll give it your best and we must thank the hundreds of lawyers who…in addition to their private cases accept legal aid cases,” he adds.
One lawyer who participates in the scheme, and is offering his service as part of his civic duty is Attorney-at-law and President of the Advocates Association, George Soutar.
He feels that the legal aid system cannot survive without attorneys dealing with those matters. Despite the small pay, he is encouraging other lawyers to join the cause.
“I would encourage attorneys to participate (in the scheme)…it is a necessary service, you don’t really consider the reward, because it is a service. I think, that is required for the system to survive and people ought to have representation,” he asserts.
He says the Duty Counsel system is important, as prior to the process persons would be held in custody unrepresented.
“It happened that sometimes they are put on a parade, or sometimes they are interviewed, they can’t afford an attorney. It is not always convenient and sometimes there are many other problems that cause the police to proceed without representation. So, the Duty Counsel system prevents that and ensures that everybody is represented at that stage,” he explains.
For attorney, Dr. Randolph Williams, being a part of the legal aid system “is a service to the profession; it’s a service to the justice system”.
He suggests that legal representation, from an early stage, is important, particularly for young men (aged) 15, 16, 17 up to 20, as well as older persons, who have been charged or have never been charged before.
“They are in custody, sometimes they are scared, frightened, and they are not hardened criminals and they need legal representation,” he advises.
By Alecia Smith-Edwards, JIS Reporter