In its original jurisdiction the Caribbean Court of Justice (the CCJ) is empowered to determine disputes respecting the treaty establishing the Caribbean Community. Provision is made by virtue of Article XXIV of the Agreement Establishing the Caribbean Court of Justice for nationals of Contracting Parties to be allowed to appear, by leave of the Court, in proceedings where the Treaty is intended to enure to the benefit of such persons, or if they would be prejudiced in respect of the enjoyment of such benefit, or if the Contracting Party has omitted or declined to take up the claim and it is in the interest of justice that the person be allowed to intervene. Despite the potential complexities of the trade matters involved, no provision is made for legal aid in such cases.
In its appellate jurisdiction, the Court has wide scope. By virtue of Article XXV appeals shall lie to the CCJ from decisions of the Court of Appeal of a Contracting Party in cases involving civil proceedings over a stipulated value, proceedings for dissolution or nullity of marriage, cases involving the interpretation of the Constitution of a Contracting Party and with leave, in cases of great general or public importance as well as other cases as may be prescribed by any law of the Contracting Party.
It clear that the CCJ is intended to make final decision on a range of important questions affecting the life, liberty, status, property and career of persons whose cases come before it.
Article XXIV provides that members of the legal profession of a Contracting Party are not required to satisfy any other condition in order to practise before the Court. No guarantee of right to access to the Court has been provided and no requirement has been stated for the Contracting Parties to provide legal aid and assistance for persons who are parties to appeals before the Court, however economically deprived they may be.
The Constitutions of the Commonwealth Caribbean Countries do not confer a right to legal aid. They merely guarantee that a litigant should not be deprived of the right to seek or have legal representation. Any comprehensive provision of legal aid for persons with appeals to the CCJ will require national/domestic legislation.
There are an increasing number of appeal cases in various countries of the Caribbean where it has been argued that the absence of legal representation deprived an accused person of a fair trial. In Hinds v. A.G. of Barbados 1 the Privy Council stated that the constitutional guarantee of the right to a fair trial may in certain circumstances require the defendant to be given free legal assistance. The Board stated “…it was clear that while a defendant was not automatically entitled to legal aid, he was guaranteed a fair hearing” and “…the lack of legal representation may properly be held to deprive the hearing of its essential quality of fairness to the defendant.”
On paper there are statutory provisions for legal aid in criminal cases in some countries. In Trinidad and Tobago, the Legal Aid and Advice Act provides for legal aid on the certificate of a Judge.
In Barbados, the Community Legal Services Act states that legal aid is available for the most serious offences up to appeals to the Privy Council and now the CCJ. However in an article in the Advocate, a daily newspaper in Barbados, on March 23, 1996 entitled “AG Gets Tough” The Hon. David Simmons, Attorney-General, as he then was, announced plans to severely limit amounts available to defendants facing the death penalty. He said “I have decided that in the future we will pay £1000 and no more …The state is now calling the tune. I am going to help but only a certain part of the way.”
In Jamaica, the Legal Aid Act provides that legal aid is available for appeals from conviction and sentence to the Court of Appeal and to Her Majesty in Council2. The Legal Aid Council in Jamaica owes millions of dollars to lawyers for representation at trials and appeals in Jamaica. It has not yet even assisted with any appeal to the Judicial Committee of the Privy Council.
In the case of civil actions, there are no existing statutory provisions in any of the Commonwealth Caribbean Countries for legal aid on appeals in civil or constitutional cases to the Judicial Committee of the Privy Council.
An appellant before the Judicial Committee of the Privy Council may make an application to be treated as a ‘financially assisted’ person3 and such an application needs to be supported by sworn evidence as to the applicant’s means. The application will be determined by the Registrar and entitles the applicant to seek remission or reduction of any liability for fees and costs and means that he or she will not be required to give security for costs. This is fairly similar to the old rules relating to “poor persons”.
In practice the statutory provisions for legal aid for ‘financial assistance’ to the Privy Council are limited and do not operate effectively. However, effective legal aid is provided in capital cases for condemned persons through the generosity of a London Panel of solicitors and Barristers who offer pro bono services. This facility for legal aid through the offer of pro bono services which exist in respect of Privy Council appeals may not be transferred to the CCJ.
There has so far been no indication that Caribbean Governments are considering legislation to provide legal aid for appeals to the CCJ. This is clearly a matter of concern that needs urgent attention!
Details of legal aid and assistance in the Region by Governments, Bar Associations/Societies and NGOs was last surveyed in 2003 by John Epp from Cayman and Derek O’Brien from Oxford University. The picture was very grim and little has changed in the eight years since then. One of the most troubling facts that this survey revealed was the lack of what the authors termed ‘Legal Profession Organized Assistance”. In the results of the survey, this column records “No”, country after country. The noticeable exceptions were Belize, Cayman and St. Kitts & Nevis.
Recently, the author undertook a survey of legal aid in the Region with the assistance of Mr. Mikhail Jackson, a law student. A survey form was sent out via e-mail with 9 questions to attorneys in 10 countries in mid-October, 2011 To date responses have been received from only two Attorneys in Montserrat and Dominica, both with very short answers of ‘NO’ to all the questions about sources of legal assistance for indigent persons.
The CCJ’s Appellate Jurisdiction Rules (the AJR) allow a party to seek leave to appeal as a poor person4. A party, to whom leave has been granted to appeal or to defend an appeal, as a poor person, shall not be required to provide security for costs or to pay any Court fees5. This is similar to the provisions of the Privy Council with respect to financially assisted persons, set out previously.
This rule has been considered in an application for leave to appeal from a decision of the Court of Appeal of Barbados, Sean Gaskin v. The Attorney General and Clyde Nicholls6. In this case leave to appeal was refused in a criminal case.
In a civil case, Elizabeth Ross v. Coreen Sinclair 7,an appeal from the Court of Appeal of Guyana, leave to appeal as a poor person was granted to the appellant where the Court of Appeal refused her leave to appeal as a poor person. At paragraph 25 of the Ross judgment, the Honourable Mr. Justice de la Bastide, President of the CCJ, on behalf of the Court stated:
“We are also satisfied that the applicant is genuinely unable to provide security for costs and, therefore, if required to do so as a condition of her appeal proceeding, her right of appeal will have been rendered nugatory. We appreciate that the respondent is similarly circumstanced and in all probability cannot afford to pay for legal representation at the hearing of this appeal. Fortunately, both parties have had the benefit of the services of competent and public-spirited attorneys who have no doubt provided them on a pro bono basis. Hopefully, their generosity will not be exhausted before the final determination of this matter.”
In this case, the CCJ allowed and received written submissions from both parties and held a hearing by teleconference at which the Court heard oral arguments from counsel for both sides. These were obvious endeavours to assist the indigent litigants. However, the Court was well aware of the need for legal representation and the costs involved as can be adduced from this quote from the judgment.
There is no way around it: The right of access to a court must be meaningful and practical, not theoretical. The issue of legal aid provisions is a continuous source of conflict between Governments and those who represent some of the most marginalized persons in society. Free quality advice and representation is essential in any democracy claiming to provide access to justice.
NANCY ANDERSON is an Attorney-at-Law and an Associate Tutor at the Norman Manley Law School.