The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

COURT of Appeal president Justice Anita Allen raised concern about the increasing number of defendants in criminal matters who either appear without an attorney or are under-represented.

In her remarks at the opening of the Court of Appeal’s legal year yesterday, Justice Allen called for an adequately staffed and funded public criminal defence system “which delivers effective, efficient and quality representation from the time of arrest”.

She said: “Legal aid provided at the earliest opportunity would eliminate any doubt that the rights of persons financially disadvantaged are breached at any stage of the legal process.

“I am not unmindful of our country’s financial constraints, and hence I suggest the aforementioned measures be introduced incrementally.”

Justice Allen said she was concerned about whether the judiciary was in danger of “reneging on the constitutional promise of a fair trial to all persons charged with criminal matters.

“Article 20 (1) of the constitution provides, inter alia, that a person charged with a criminal offence must be afforded a fair trial. And paragraph (2) (d) of that article further provides that he shall be permitted to defend himself in person, or at his own expense by a legal representative of his choice, or by a legal representative at the publics expense, where so provided by law,” she said.

She noted that the law grants a Supreme Court judge the discretion to assign an attorney at the public’s expense and “invariably in capital cases and in other serious matters, counsel are so assigned”.

“Similarly,” she said, “the Court of Appeal is empowered to assist a poor litigant in criminal proceedings where it appears he does not have sufficient means wherewith to retain counsel and it is in the interest of justice that he should have legal aid in the preparation and conduct of his appeal.

“The rules further provide that in any case where the appellant is convicted of a capital offence, and it appears that he does not have sufficient means with which to retain counsel, the court is obliged to assign counsel at the public’s expense.”

She added that magistrates do not have the same power, and admitted that the funds for legal assistance are limited and the fees offered to lawyers for providing legal representation for “indigent litigants” are not competitive.

“And very often that results in the assignment of counsel who are not as experienced as the ought to be in the criminal law,” she said.

Justice Allen also noted that an underrepresented defendant could be overwhelmed by the magnitude of the preparations required to defend a case, and the number of legal considerations that arise during trial.

However, she noted the court’s impartiality must never be compromised and it must never appear as though the court is acting as a lawyer on anyone’s behalf.

“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 legal representation at the expense of the state of all persons charged with a serious criminal offence who wish to be represented but are unable to afford counsel,” she said.

Justice Allen added that she is “patently aware that this horse called legal aid has been flogged nearly to death and is perhaps now on life support. But I deemed it important enough to attempt to breath life in it today”.