I read with interest and agreement the speech delivered by Sir Michael Barnett at the 2020 Eugene Dupuch Distinguished Lecture entitled “The changing face of the judiciary and the legal profession in The Bahamas”.
The Nassau Guardian on Monday, February 17, 2020 carried a portion of that lecture dealing with the topic of a viable legal aid scheme to assist poor litigants.
Presently the acting president of the Court of Appeal, Sir Michael, echoed a call made nearly 10 years ago by the then President of the Court Dame Anita Allen, pleading the cause for the creation of a viable legal aid scheme designed to assist poor persons.
At that time Dame Anita said: “If we are to ensure that full meaning is given to the constitutional promise of a fair trial, I humbly suggest that consideration be given to amending the relevant statutes to provide for legal representation at the expense of the state for all persons charged with a serious criminal offense who wish to be represented, but are unable to afford counsel.’’
Sir Michael saw the failure to provide a well-funded and efficiently managed legal aid scheme as undermining the very rule of law in The Bahamas.
“The law requires that a person arrested by the police and presumed to be innocent, be advised of their rights to seek legal advice before they are interviewed by the police. But this is meaningless to persons who cannot afford a lawyer.
“An unrepresented accused person may not understand his or her rights, present a viable defense or make a sound legal argument. This could easily result in trials that are unfair and convictions that are wrong.”
I respectfully agree with the views expressed by Dame Anita and Sir Michael.
As a practicing attorney, I have experienced occasions when persons in custody would require an attorney, but who are genuinely unable to afford one.
I myself have gone to the police station, or even visited prisoners on remand at the prison at severely reduced fees, acting as an officer of the court, and out of a genuine effort to assist persons in need.
I believe that the right to a fair trial is a fundamental constitutional right.
If persons are unable to fully enjoy that right then, to me, it becomes a human rights issue.
A human right is being seriously eroded by the state. Not that any particular government has deliberately set out to undermine the right in question, but that is the reality.
When a man is accused of a crime and is hauled before the courts, the full resources of the state are arrayed against him.
If he is not able to afford competent representation, the scales might very well be tilted against him unfairly.
The only real safeguard in such a case is the diligence of the magistrate or trial judge, who will then be on the alert to ensure that the state does not abuse the rights of an unrepresented accused. But even the judge is limited in how far he or she can bend over backwards to assist an unrepresented defendant, lest the judge be seen as favoring one side over the other.
If all else fails then the Court of Appeal may have to correct an injustice.
According to the late Lord Bingham, one of the UK’s most distinguished judges, speaking extra judicially at the Barnett Lecture in June 1998, the oldest statutory authority on legal aid for the poor, anywhere in the world, appears to be a Scottish Act of 1424 which provided that: “If there be any poor creature for default of cunning or means that cannot or may not follow his cause”, free legal assistance should be given.
“If the position of the poor man needing advice or assistance in the civil field was dire, the position of the criminal defendant was even worse,” Lord Bingham said. “In the 18th Century, the criminal trial was a very amateur affair. Most prosecutions were brought by private individuals in the hope of reward.
“There were no professional prosecutors. The majority of trials were conducted without lawyers. The defendant had no right to give evidence. And one suspects that many of the judges were extremely arbitrary. The 19th Century saw a movement towards much greater professionalization.”
Sir James Stephen in his “History of the Criminal Law” published in 1883 said, in part: “When a prisoner is undefended his position is often pitiable, even if he has a good case. An ignorant uneducated man has the greatest difficulty in collecting his ideas, and [understanding the importance] of facts alleged…”
Historically there have been objections to the state providing legal aid to assist a truly guilty person. In other words, why should the state spend money to help a guilty man or woman to create a false defense to walk scot-free?
But a man is presumed innocent until proven guilty beyond a reasonable doubt. Such an objection loses its weight and attraction against this powerful presumption of the law and the constitution.
I end with the words of Dr. E. J. Cohn as recalled by Lord Bingham in his Barnett lecture: “Legal aid is a service which the modern state owes to its citizens as a matter of principle. It is part of that protection of the citizen’s individuality which, in our modern conception of the relation between the citizen and the state, can be claimed by those citizens who are too weak to protect themselves.
“Just as the modern state tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise.
“Indeed, the case for such protection is stronger than the case for any other form of protection. The state is not responsible for the outbreak of epidemics, for old age. But the state is responsible for the law. The law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the state to make its machinery work alike for both rich and poor.”
– Mark Symonette-Rolle