Charles Richardson: Legal Aid Overview

July 10, 2010

[Written by Charles Richardson] Over the past five years of my practice 90% of my clients have been legally aided. The fact of the matter is that the majority of people who are charged with criminal offences are unable to afford proper legal representation on their own. It may seem a strange thing that those charged by the state can have their legal fees paid by the state, but there is a good reason for that.

You see, the state has an obligation to ensure that anyone charged with a criminal offence receives a fair trial. A trial in which a person is charged with a serious criminal offence, where he is being prosecuted by two highly skilled Crown Counsel, is up against the state with its unlimited resources, yet he must be without representation because he can’t afford it – well no one would call that a fair fight. Hence the system of legal aid. That’s the simple explanation.

Having said that, it must also be understood that not everyone will qualify, and those who do qualify have certain obligations. Those who do not qualify will have to fund their own legal fees. In most if not all cases the standard practice throughout the industry is for a retainer to be paid up front. This will vary in amount based on the seriousness and complexity of the case as well as the stage of proceedings at which a lawyer is retained. Most lawyers will not begin to work on a case until they have received official notification that you have been granted legal aid, or you have paid them a sufficient retainer. Unlike doctors, who can look to an insurance company for payment, without the “insurance” of a valid legal aid certificate or a pre paid retainer an attorney has no way of ensuring the payment of his fees in a timely fashion. And despite having the insurance of insurance doctors still want payments up front. So, having legal aid is like having legal insurance for a specific case.

If you do apply for legal aid and it is granted it is your responsibility to make sure you sign the certificate in order to make it valid. Legal Aid are gracious and will often pay a lawyer’s fees from the date the certificate is granted by them even if signed later, but if you take too long to go and sign it they will revoke it and might not reconsider your application again.

Once you have legal aid you then have to do what all normal clients do and go and book an appointment to see your lawyer. Do not sign your legal aid certificate and assume that this will trigger your lawyer to automatically show up in court knowing all there is to know about your case. That is not how it works. You have to go and ‘instruct’ your lawyer like any other client. Your legal aid certificate is simply your insurance card which you produce to demonstrate to your lawyer that the Legal Aid fund will be responsible for your fees. That’s it. Your fees only. Legal Aid is not responsible for anything else. In all other respects you must do as any normal client would do.

For clients who are incarcerated much of the application process is handled by the prison officials, but you still have to sign the certificate once it is sent up to you, and you must also put in an application for a phone call to instruct your attorney. The most helpful thing you can do when calling to instruct your attorney is to produce a copy of your legal aid certificate when booking the appointment or upon your first visit, or provide a valid certificate number against which the lawyer can begin to bill fees. This will greatly expedite your matter being dealt with by your lawyer.

Finally, it should be noted that the appointment of Queens Counsel (aka ‘a Q.C.’) is not something that is available as of right. In fact, new guidelines have made it necessary to establish that the case is beyond the knowledge and experience of local counsel, or is so serious that Queens Counsel should be considered. It may be the case that two local counsels working together might suffice rather than the expense of one overseas counsel plus local counsel. This would certainly be less expensive than a Queens Counsel, and for that reason a more attractive option to the Legal Aid Board. This should be kept in mind when making requests for Queens Counsel.

If you find yourself locked up after hours and/or on a weekend please ask the officer on duty for the emergency legal aid number if you cannot afford to retain a lawyer. Your likelihood of securing the prompt response of a lawyer is greatly improved if you contact the emergency legal aid number before calling a lawyer.

I hope that this assists those who may find themselves in need of legal aid. The application process is rigorous, but we would ask you to co operate since the process has to be carefully carried out. The available funds are not limitless and the decisions are made on a case by case basis.

Editors Note: For anyone unfamilar with Mr Richardson, he is a defense lawyer who is considered by many to be amongst the best on the island.

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