Statement by the Hon Attorney General re Court Assisted Attorney’s and Legal Fees

Mr. Speaker, I rise with your leave to make a statement on behalf of the Office of the Attorney General to this Honourable House in relation to Court Appointed Legal Aid Lawyers and Legal Fees.
Judges here in St. Kitts and Nevis and for that matter throughout the Eastern Caribbean Supreme Court have been becoming increasingly concerned because there are an increasing number of Defendants who come before the Court in criminal matters unrepresented. But it is in serious criminal matters, homicides, rape that the Court, Capital cases and for that matter the Prosecution, especially where there is the possibility of someone being put to death on conviction, that the Court would require a lawyer who attends in Court to represent such a defendant.
In the Budget debate last week, I took time to explain that the Legal Aid and Advice Center on West Independence Street, does provide legal representation, following a means test, to those who cannot afford to pay for a lawyer at the private bar, this is in primarily in civil matters. But my statement today Mr. Speaker references Legal Aid or Court Assigned Lawyers in capital cases in the High Court.
When someone is arrested and charged for a capital case, for murder, that individual invariably would contact an Attorney. Despite the fact that St. Kitts and Nevis have a significantly high number of lawyers per capita compared with other jurisdictions, the number of those who appear in capital matters, in criminal matters, are relatively few. The Attorney called would let the defendant know what his retainer would be, and in some cases, the defendant and his family would be able to find the money. But in other cases, this is not possible.
When the matter is called up in Court, the Judge would then ask the Defendant if he has a lawyer, and if he says “no”, the Judge would then ask a lawyer who is in attendance in Court if they would be willing to represent the Defendant. The Court assigns that lawyer of they have agreed to the case.
The Court Administrator would then pass a note to the Executive Officer of the High Court Registry, who, supervised by the Registrar of the High Court, would allocate fees to be paid from the Consolidated Fund for the work done. This practice was initiated more than ten (10) years ago and most lawyers operate and cooperate under this process.
The files of the Office of the Attorney General show that in 2010, the year 2010 the Assistant Secretary in the High Court, one Mr Jose Lloyd wrote to then Attorney General, Mr. Patrice Nisbett, the Member for Nevis 11 opposite following a review of this process. And I would want to read excerpts of that letter into the record Mr. Speaker, if I may. I apologise Mr. Speaker.
‘To the Honourable Patrice Nisbett, Attorney General, Minister of Justice and Legal Affairs from Mr. Jose’ Lloyd, Assistant Secretary, Registry and this was on the 29th November, in the year 2010 and it is captioned Court Assigned Lawyers in Capital cases and legal fees. Mr. Lloyd has set out in this letter current fees is at the time were and it was based on a set table in which a number of years of the experience Lawyer were divided into ten years ten years or less and that Lawyer would have received in 2010 a fee of five thousand dollars for a capital case. Mr. Lloyd indicated that for an appearance in Court for one day that Lawyer would have received a fee of Two hundred and Fifty dollars for a Capital case. That if the Defendant plead guilty he would receive, the Lawyer would receive Two thousand Five Hundred dollars for appearing in the Court and if there was an appeal to the Court of Appeal he would receive Two Thousand five Hundred Dollars. If the Lawyer operated for more than ten years and over that fee would be seven thousand five hundred dollars for Capital cases and per diem and guilty five hundred dollars. This what pertain in 2010 and having met with the Attorney General, Mr Lloyd and the Permanent Secretary in the Ministry of Justice and Legal Affairs and their discussions would have recommended an uplift an increase in those fees. So that from 2010 upward because it was accepted. If you were a lawyer with ten years or more, or less years or less practice you would have received Seven thousand Five Hundred dollars for a Murder trial. You get a per diem of seven hundred and fifty dollars per day if you attended Court. If the defendant plead guilty the Lawyer would get Two Thousand Five Hundred Dollars. If you are a Lawyer from ten to twenty years you would receive ten Thousand and so forth.
It’s a clearly established scale of fees that the Registry of the High Court managed so that when the Judge assigned a case to a lawyer who was in Court he would asked if somebody offer to do the case. It was seen as the contribution of the Bar to assist the Court in the defence in a very serious matter, in a serious matter and so from 2010 onward these were the fees policy that was established by the then Attorney General, Mr Patrice Nisbett and other subsequently, Attorney General Jason Hamilton also pursued this policy and one will know that Mr Hamilton himself – Mr Jason Hamilton is a Lawyer, who practices criminal law before the Bar and before the Court. He also was involved in that.
And so Mr Speaker over time, some lawyers, and some attorneys became dissatisfied with the scale of fees.
When this government came to Office in February last year – February 2015 I received as the new Attorney General a letter from Attorney Chesley Hamilton in May of 2015 and Mr Hamilton in writing to me said this:
“Dear Sir
I wish to bring to your attention a number of outstanding matters which were brought to the attention of your predecessors: to Patrice Nisbett, to Jason Hamilton and before him Attorney General Dennis Merchant. ‘Please find enclosed copies of these letters that were sent.
Mr Hamilton states that these matters fell into four different categories, matters of which I have been partly paid. He admits getting partly paid, matters of which I have been underpaid, matters of which I have not been paid and matters not addressed for 2015.
I hereby seek an audience with your good office to address matters in the first three categories and I hereby also request payment for matters in the fourth category and that he indicated that he would say.
I would state for the record Mr Speaker that I have met with Mr Hamilton on more than one occasion to discuss this matter. I met with him almost three times.
Mr. Hamilton has tendered a letter in August of 2015 – last year having met and requested particulars in which he has identified a number of names for whom it is implied, that he has acted as a Court-assisted lawyer. We have had to verify the case numbers, we had had to verify the dates that these cases would have been conducted. We have had to verify the particular outcome of these cases. This information was not contained in any of these letters that were received by the Office of the Attorney General, they were not supplied when requested of Mr Hamilton. Was there a guilty plea; was the matter withdrawn by the Prosecution; was this at the preliminary inquiry stage; no particulars were provided by the Attorney, and for each and every name submitted, sometimes twice, he requested a retainer of $75,000 for a grand total of $2.1 million that he wanted the Office of the Attorney General to pay.
Mr Speaker we have done, we in the Office of the Attorney General have done extensive investigation into this matter. If Mr. Hamilton, or any other lawyer, has been assisting the Court, we would want that they be settled within the existing framework, and if needs be, we would revise such a framework if it was not fair and not equitable. And we have conducted an extensive review of other jurisdictions in the Commonwealth Caribbean.
For instances Mr Speaker, we have looked at what is happening in Trinidad their legal aid in Capital matters is governed by the Legal Aid and Advice Act Cap. 7.07 in Trinidad. Part 3 of the first schedule of that Act as amended by the Legal Aid Advice Act No. 3 of 2012 provides that in Capital cases the Legal Aid Authority may pay a fee not exceeding Fifteen Thousand Trinidad Dollars and so that we understand Trinidad Dollar or one Us Dollar is equivalent to five Trinidad Dollars Mr Speaker.
So that the fee as mandated in law in Trinidad is that if an Attorney is representing someone in a Capital case that Attorney is capped to receive not more than three thousand US Dollars. Eight Thousand E.C. ok. However, the presiding Judge may if he thinks fit certified the case was of unusual length or difficulty and increase the fee of the Attorney-at-Law to a sum not exceeding $20,000 Trinidad Dollars or Four Thousand Dollars USD. In exceptional cases the Attorney-at-Law may be allowed an addition fee not exceeding Ten Thousand Dollars.
In Barbados in paragraph “b” of the Community Legal Services Tariff of Fees Regulations 2000 made under the Community Legal Services Act Cap. 112 (a) outlines the fee structure for Legal aid in Capital cases as follows: Capital case at the assizes (a) for Queen’s Counsel $6,000.00 Barbadian Dollars: Capital case for Junior Counsel at the Assizes $4,500 Bajan only one legal aid assignment shall be issued at the Assizes and where the trial last longer than one day, after the first up to a maximum of five days Five Hundred Dollars. This is what pertains in Trinidad and what pertains in Barbados.
In St. Vincent, this is what pertains from legal practitioners in St. Vincent. This scale has been in place for over 25 years. The fee on brief in St. Vincent where the Court gets a lawyer to assist a defendant who is unrepresented is fifteen hundred EC Dollars – Fifteen Hundred EC Dollar – fifteen Hundred E, C., Dollars The fee on arraignment is Fifteen Hundred EC Dollars when you go to plea, when you go for arraignment when you go to plea, PI and so on is five Hundred Dollars. For each day of trial or part thereof Five Hundred Dollars. Fees are capped at Ten Thousand EC Dollars. They don’t pay you more than Then Thousand EC Dollars. This instruction that is referred to above is a useful guide for determining the appropriate fees in this jurisdiction. having regard to the position in the Caribbean territories outlined above and being mindful of need for such services in St. Kitts and Nevis and the public purse. The Ministry of Justice and Legal Affairs has outlined the following structure for Court appointed Legal Aid in Capital matters.
And so last year we determined that we will increase by fifty percent the rates that Mr Lloyd had done in 2010. So that Lawyer in more than ten years in practice would now get Fifteen Thousand Dollars. Ten years or less Ten Thousand Dollars and one Thousand Dollars per day for attendance at trial and other appearances before the Court. If there was a plea for not guilty, so there is no trial as such – a plea of guilty sorry, the Lawyer will get Three Thousand Five Hundred Dollars an Appeal before the Court of Appeal will be Six Thousand Five Hundred Dollars .
Mr Speaker, I want to tell you about one other jurisdiction too, because is the Commonwealth Caribbean and this here is in Belize and this is the Attorney General of Belize communicating with us and when we spoke she said that she undertook to get some information from me because we had met and had a discussion on this
Our indictable procedure Act in Belize provides at Section 194 are as follows
Whenever it appears to the Court the Supreme Court or a Judge thereof that any person charged with any Capital Offences has not the means to retain and pay for the services of Counsel the Court or the Judge thereof may assign Counsel to defend such an accused person; and
The Court or Judge may authorise the payment to Counsel as assigned for the defence of such accused an honorarium not exceeding a sum set out in any rules of Court made by the Chief Justice for that purpose and such honorarium shall be paid out of the consolidated revenue fund
And she goes on:
The Supreme Court Counsel fees in in Capital trials rules were passed and provides that such assigned Counsel shall be entitled to Five Hundred US Dollars – Five Hundred US Dollars for retainer and One Hundred Dollars in respect of each day in which Counsel appears in Court and conducts the defence before a Jury but the total fee that any Counsel would be entitled to shall not exceed One Thousand US Dollars.
This is the case around the Commonwealth Caribbean so that here in St. Kitts and Nevis the fees that have been put in place more than ten years ago, that has been reviewed by the Assistant Secretary of the Court, five, six years ago and which we last year felt under the circumstances we should give upward of fifty percent this is what pertains Mr Speaker and I just want to say Mr Speaker that we have adjusted this Framework upwards we thought it should be and we have done so.
Over the past two years, 2015 &-2016, some eight (8) lawyer sin St. Kitts and Nevis have been paid EC$425,300 as Court Assisted Lawyers. They include: Dr. Henry Browne, Mr. Hesketh Benjamin, Mr. Chesley Hamilton, Mr. Fitzroy Eddy, Mr. John Cato, Mr. Robelto Hector, Mrs. Marissa Hobson-Newman. And of this Four Hundred and Twenty Thousand, Three Hundred Dollars Mr. Chesley Hamilton has received $158,500. He has been paid out of the consolidated fund $158,500.00
The Office of the Attorney General Mr. Speaker will continue to review the fee structure in the New Year. We will present a number of options, including the creation of an Office of Public Defender in which Attorneys who would be dedicated to offer legal aid defence to those charged in criminal matters including Capital cases. This proposal will be put to Cabinet and once a decision is made, we hope that we will have the necessary legislative framework to do this.
May It Please You Mr. Speaker.