AG: Annual Report Legal Aid Office 2020/22

Attorney-General Kathy Lynn Simmons presented a copy of the Annual Report of the Legal Aid Office for the fiscal periods from 2020 – 2022 in the House of Assembly on Friday [July 1].

The Attorney-General’s full statement follows below:

Mr. Speaker, I rise to update this Honourable House on the work of the Legal Aid Office. Accordingly, I lay a copy of its Annual Report for the fiscal periods from 2020 – 2022. This Report was submitted by the Legal Aid Committee, to comply with section 18 of the Legal Aid Act 1980 [“the Act”]. Therefore the Board’s statutory reporting is current.

Mr. Speaker, By way of historical context, members may know that Bermuda’s legal aid regime came into operation on 1st of November 1980 pursuant to the Act. We are well into the 42nd year of the Legal Aid Office delivering the legal assistance needed for Bermudians, who may not otherwise be able to access quality legal advice and representation. This service is readily available, to individuals who meet a statutory financial means test, and ensures the provision of essential fair access to justice.

Mr. Speaker, I anticipate that members would unanimously agree that without access to legal representation, where warranted, access to justice would also be denied. Hence, we ensure this provision of service, noting the high costs of such services in the private sector which is prohibitive to many of our citizens.

The Legal Aid Scheme is promotes equitable access to justice, to Bermudians at the lower end of our socio-economic system. The Legal Aid Scheme therefore is an essential pillar of our legal and social justice system to ensure that such persons who qualify under the means test, are granted legal assistance as a right.

Having said this, Mr. Speaker, the Report underscores the priority placed on representation for those charged with serious criminal offences or offences which may carry a sentence of five years or more imprisonment.

Under the Operational Statistics for the Period 2020 to 2022 heading, the Report points out the broad scope of assistance to those who qualify. Accordingly, it also details that “the Committee also grants certificates to applicants who qualify as of right for criminal trials and appeals in the Supreme Court, Court of Appeal and, exceptionally, before the Privy Council in England. In the exercise of its discretion, the Committee considers and assigns legal aid certificates to applicants charged with criminal offences of a less serious nature in the Magistrates’ Court, where it is deemed to be in the interest of justice to do so.

Mr. Speaker, Section 4 of the Act empowers the Legal Aid Committee to administer the internal administration of the scheme by:

• reviewing Legal Aid applications;

• awarding Legal Aid Certificates for eligible persons;

• deciding the assignment of legal counsel; and

• managing the Duty Counsel Roster of lawyers giving free legal advice to unrepresented defendants appearing in the lower courts.

Mr. Speaker, the Committee also has the responsibility to prepare and maintain a list of barristers and attorneys who are in active private practice in Bermuda to draw the names of all counsel who are able and willing to represent applicants and assisted persons. This function ensures quality representation. The Committee is comprised of 5 members in accordance with the First Schedule of the Act, which also regulates the Board’s composition and procedures.

Decisions of the Committee, Mr. Speaker, are legislatively mandated and fairness of the processes are steered by a quorum majority vote

Mr. Speaker, the Senior Legal Aid Counsel has the responsibility for the day-to-day management, administration and operations of the office. Ms. Susan Moore-Williams returned to her substantive post, after a period of re-assignment in another Ministry, which concluded over a year ago.

The Report further highlights that the Legal Aid Office is presently comprised of three [3] administrative posts and five [5] legal posts. The former [3] posts are that of the Office Manager, Accounts Officer, and an Administrative Assistant. The latter five [5] legal posts are as follows: the Senior Legal Aid Counsel, two [2] Legal Aid Counsel, one [1] Junior Legal Aid Counsel, and one [1] Paralegal. Legal Aid Counsel attend court and represent clients at a reduced and manageable cost to the public purse, since they are salaried employees. One junior counsel post is vacant and currently under active recruitment, and a contract has been offered to a qualified and suited Bermudian for the other counsel post.

The new model, which was implemented in 2018, made provisions for increasing the resources to reduce overall cost to the scheme. It is noted that appreciable savings are expected once two to be sustained. Furthermore, during the period covered, ‘recruitment proceeded in respect of the posts of Legal Aid Counsel and Junior Legal Aid Counsel; Accounts Officer and Administrative Assistant. Steps were also taken to provide coverage, where possible, for vacant positions by way of Temporary Reliefs, reassignments and consultancies, to minimize the impact on the new legal services delivery model’. The Report notes at page 12 that ‘recruitment for the vacant counsel posts, is well in train and is expected to be completed by August of this year [2022]’.

Mr. Speaker, Members may recall that a new framework for the assignment of Counsel under the Legal Aid Act 1980 was officially implemented on 1st March 2019, having been developed the preceding year [2018]. The changes were devised alongside a host of cost-savings reform measures across government. In this instance it was determined that counter-intuitively increasing staff from 5 to 8, would reduce the cost of the scheme overall. The justification for implementing an in-house staff Counsel model was in recognition that operational efficiencies and savings; institutional knowledge-building; and providing opportunities for a cadre of specialized Bermudian defense lawyers would offer better delivery of services within public spending limitations. The new model ensures that as many legal services as can now be delivered by in- house staff counsel, in lieu of overly-utilizing outside Counsel. The in-house Counsel capacity continues to grow and although the revised model is not fully implemented, it has resulted in measurable savings thus far.

Mr. Speaker, Covid-19 notwithstanding, cost savings year over year are evident on page 15 of the Report. It shows the amounts paid to external counsel for representing legal aid clients. In the year ending 2018 before the cost-saving scheme was implemented that figure was more than 1.9 million dollars. By the end of the past fiscal year [March 31, 2022], that cost was reduced by more than 65% to $663,360.00. Furthermore, the Report ‘anticipates that costs will continue to trend downward in tandem with full implementation of the reformed model’.

Data for this current reporting period reflect the following

Mr. Speaker, one of the indispensable roles of the scheme is to support advocacy for the development of our justice system. In so doing, matters of public interest are given particular priority. A prime example ‘over the period involved the issue of jury selection in which it was determined that the provisions of Section 519 of the Criminal Code 1907, which effectively accorded the Prosecution more extensive rights of challenge without cause than those accorded to the Defense in respect of potential jurors were held to be unconstitutional by reason of section 6 [1] of the constitution. This led to the Criminal Code Amendment Act [No 2] 2020 which amended section 519 so as to put Prosecution and Defense on an equal footing in respect of peremptory challenges’.

Mr. Speaker, Upholding the cause of justice is not only predicated upon advocacy in criminal matters. The Report details that ‘Certificates were also granted for civil proceedings over the period, especially where there are vulnerable parties such as landlord and tenant matters in the Magistrates’ Court; Family Court proceedings involving care order and supervision orders, custody, maintenance and access. In the Supreme Court, certificates are granted for matters such as claims for damages arising out of negligence; divorce and ancillary relief applications; and all such appeals to the Court of Appeal’.

Mr. Speaker, it is reported that timeliness and efficacy remains a priority at the Legal Aid office with respect to its deliverables to the public. Accordingly, as reflected in its Output measures, the Office maintains the ability to:

• Process applications for legal aid certificates within fourteen [14] working days. However, it must be emphasized that achieving this objective is almost entirely dependent upon whether applicants do their part to submit the required information in a timely manner.

• Furthermore, the Office continues to process applications for Temporary Certificates, commonly known as emergency certificates, within three [3] working days. This also becomes feasible only when applicants submit all relevant financial information at the time of application.

• Applications for emergency certificates can then be approved by the Senior Legal Aid Counsel. Thereafter, the Temporary Certificates can either be ratified and extended to a full certificate, or discharged by the Committee within 28 days.

Another major deliverable is the processing of counsel payments. It is reported that ‘the acquisition of a dedicated staffing accounts resource during the period under review has led to improvements in the processing of counsel payments. Accordingly, the Office was generally able to maintain its 30 working day commitment to tax and process counsel fee bills’.

Mr. Speaker, The Chairman concluded the Report by reminding us all that Committee members are volunteers, who give of their time and experience at the weekly meetings to carry out the very demanding mandate as prescribed in the Act. She extends appreciation for Members’ hard work and dedication and applauds their commitment to quality service delivery during the period[s] covered.

Mr. Speaker, I once again conclude by amplifying the Chairman’s expressions of gratitude to the Legal Aid Committee Members for the selfless duty they uniquely give to the maintenance of access to justice in Bermuda. I commend Committee Chairman, Ms. Cheryl Mapp, for her steady stewardship during ongoing implementation of reforms to the model. It is further acknowledged that the unprecedented onset of the Covid-19 pandemic, took place during this reporting period and Committee members and staff alike are commended for the equally unprecedented adjustments that the pandemic has warranted.

Thanks also must be extended, to all of the public officers, staff, Duty Counsel, Consultants, law pupils and others who have served to support the work of the Legal Aid Office deserving ongoing recognition for being steadfast in sustaining the delivery of services during this unprecedented period of transition.

Thank You, Mr. Speaker.

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