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New Court Rules Grant ‘Destitute’ Criminal Accused Easier Access to Justice Through Legal Aid

Destitute criminal accused who normally have problems coming up with legal fees, are made to breathe a little easier with the introduction of the Legal Aid Early Criminal and Civil Assistance Rules.

AGYEMANG…the Rules are aimed at curing certain deficiencies in the legal aid system, as well as ensuring fairness in the allocation of cases, and providing for a fairer system of considering applications.

Chief Justice Mabel Agyemang, during the opening of the 2021 Legal Year on January 4, pointed out that her office through the Attorney General’s Chambers, petitioned the Cabinet and the House of Assembly, in late 2021, to make the change.

The new rules also cover civil matters, the chief justice told the gathering at the Supreme Court Annex in Providenciales.

“In November 2021, through the work of the Attorney General’s Chambers, the Cabinet of the Turks and Caicos Islands and the House of Assembly, an amendment I sought, was introduced to the Supreme Court Ordinance.

“The Supreme Court (Amendment) Ordinance empowered the Chief Justice to make rules to improve access to justice by way of providing early legal aid, and the extension of legal aid to certain civil cases,” she said.

“At the close of 2021, we published the Legal Aid (Early Criminal and Civil Assistance) Rules 2021. The said Rules extend the provision of legal aid for criminal matters from its present scope of pretrial and trial processes to the investigative process,” she added.

The chief justice pointed out that because of the new rules, a new regime was established, introducing a new cadre of lawyers known as ‘Duty Counsel, whose task, she said, is to provide advice and assistance to indigent persons arrested for alleged crimes before they are formally charged.

“Early legal aid will reduce legal challenges and avoid unnecessary technicalities, as well as ensure that the rights of persons arrested on suspicion for crimes are respected throughout the investigative process until their first appearance at the court,” Agyemang said.

She said the Rules also extend civil legal aid to indigent persons who may need to prosecute or defend a claim before the court or to seek declarations pertinent to the protection of constitutional rights, including public law cases that she said would both benefit the public and improve jurisprudence in the territory.

She said the Rules Amendment encompasses constitutional motions, habeas corpus applications, judicial review applications - where there exists a public interest issue, domestic violence related disputes, court proceedings involving the welfare of a child, contentious probate matters, and landlord/tenant matters where the tenant is in imminent danger of homelessness.

The chief justice further pointed out that the innovations in the legal aid regime, introduced by the new Legal Aid Rules, include the removal of the grant of legal aid from the discretion of the Chief Justice to its consideration by a Panel.

She said the Rules established a Legal Aid Panel chaired by a Supreme Court Judge, with a representative from the Bar Council and the Director of Social Development as its members.

“The Civil Legal Aid Panel will administer legal Aid, and the registrar shall assign attorneys from the roster of litigation attorneys upon approval by the Civil Legal Aid Panel. Filing fees will also be waived for such legal aid assisted cases.

“For the administration of these rules, the Legal Aid Panel of three is now extended to five persons, to include two members of the Bar, appointed by the Chief Justice. To be appointed shortly to make up the number, will be Mr. Wendal Swann and Mr. Anthony Gruchot,” Justice Agyemang pointed out.

She said the current members of the body comprised Justice Shiraz Aziz, who is Chairman, with Don-Hue Gardiner, nominee of the Bar Council, and Ashley Adams-Forbes, Deputy Director, as the nominee of the Director of the Department of Social Development, as members.

Justice Agyemang stated that the Rules are aimed at curing certain deficiencies in the legal aid system, as well as ensuring fairness in the allocation of cases, and providing for a fairer system of considering applications.

“They were also to make us more accountable as an institution on how we disbursed public funds,” she said.

She said the legal aid roster under the new rules was compiled from applications from suitably qualified interested attorneys. She said further that assignment of legal aid cases are done by the registrar from the roster.

The chief justice remarked also that the new regime includes provisions that will hold attorneys accountable for slapdash work.

“The Legal Aid Rules further introduced an end date of 18 months to a Legal Aid certificate, and also, a mechanism for making a complaint against an attorney for negligence, improper conduct, lack of diligence or any other complaint that may warrant an investigation by the court.

“The right of an Attorney to interim payments was also introduced, and so the power of the registrar to refuse payment to an attorney upon the ruling of a Judge that certain proceedings taken were unreasonable, irrelevant or were calculated to, or would have - or have had - the effect of unnecessarily delaying proceedings,” she said.

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