Legal Aid chairman: Make Public Defenders' Department permanent

CHAIRMAN of the Legal Aid and Advisory Authority, Senior Counsel Gilbert Peterson says the Public Defenders’ Department has proven its worth in the last three years and now wants the department, which started off as a pilot project, to have the legislative support to become permanent.

The Legal Aid and Advisory Authority is the supervisory authority for both the Legal Aid Department and the Public Defender’s Department.

Legal Aid assists people in need for all court matters, including civil, matrimonial, and family matters.

The Public Defender’s Department is restricted to representing accused in serious criminal matters before the High Court and Appeal Court. Where that department is unable to represent the accused, Legal Aid can retain an attorney on their behalf.

The Public Defenders’ Department was introduced by former attorney general Faris Al-Rawi on March 2, 2020. The reason behind it was to assist in clearing the backlog of criminal cases. To date, the department led by Chief Public Defender Hasine Shaikh has completed 58 plea-bargaining cases and 16 trials, with three more ongoing.

Peterson said the Public Defender’s Department was a concept that spent years in gestation before becoming reality three years ago. He said since then the office has earned its keep and wants to see it cemented legislatively within the criminal justice system.

“I would like to see the legislation be put in place to make it a permanent department now that it has been a pilot project. I think it has justified its mandate. It has been performing well so I think it has justified its existence.”

To support his proposal for the Public Defenders’ Department to become permanent, Peterson said when a proper analysis, it is obvious that there is value for money.

“I think when you do the value for money assessment and balancing exercise, they realise that it's justified, based on the money spent in the time it exists and based on the performance. It is a successful pilot project, if I could use that term. It has earned its keep, good value for money.”

“I am very proud of that department, I’m proud of the whole Legal Aid and Advisory Authority but that department I am very, very proud of it.”

Sunday Newsday also spoke with Shaikh who measured the office’s success not by the number of cases won, but by its ability to properly defend its clients.

"Our job is not to get anyone off. That has never been the case and it certainly is not what we practise. Our job is to afford the client a possible defence to ensure that they are given justice before the court."

The office, she said, was constrained at the start of the pandemic when courts were closed and when they were reopened virtually. Of the 16 trials where the department represented the accused, five were jury trials with all returning not guilty verdicts. There were 11 judge-only trials with four guilty and seven not guilty verdicts.

Told of Peterson’s desire to have her department become permanent, Shaikh said she believes that the office is no longer a pilot project given that attorneys are being retained on contract. She said her contract had been renewed and extended from two years to three ending in 2025.

President of the Criminal Bar Association (CBA) Israel Khan, SC, said the current format of the Public Defenders’ Department is not what he had envisioned when he led the unit between 2000 to 2003.

“I wanted it separate from Legal Aid, not as it is now. My plan was to have the attorneys attached to the magistrates’ court and be appointed by the magistrate when an accused appears unrepresented.”

Khan, who was chairman between 2007 to 2009, said attorneys would have to be assigned from the office as that requires more in depth analysis for High Court matters.

He said while the current version was not what he proposed, he heaped praises on the department for what it has been doing to assist the less fortunate in getting justice.

Khan said there are approximately 150 criminal defence attorneys, with just 40 registered with the CBA. This is separate from the attorneys at the Public Defenders’ Department.

Peterson called for senior criminal attorneys to mentor and encourage junior attorneys to pursue criminal law as a way of increasing the number of practitioners in the criminal law arena. He also called on more attorneys to avail themselves to Legal Aid, adding that while the remuneration will never equate to that in their private practice, there is great joy in giving back.

The Legal Aid Authority was allocated $40 million in this year’s budget. Peterson, when asked if that was sufficient said he did not want to comment on that. He did, however, say that no state entity is fully financially equipped and added if he had more money he would hire more attorneys and pay them more than they are now, which he said is below market rate.

Shaikh said one perception she hopes to eradicate is that her unit delivers sub-par work because it is a free service to its clients.

“We are hoping that the work that we are doing and the culture of work speaks for itself. That is one of our other big challenges. There is this perception that if you are not paying for something then that is not good, that free thing is not good.”

She added her office does not fall in the category that free is not good. While the majority of the attorneys are young, she said that does not undermine the integrity of the work that is done, and the public should be aware of that.

Filling the vacancies

When the Public Defenders’ Department first came to being, 30 attorneys were assigned to it, including Shaikh. Three years later, that number has grown to 38. Several of the attorneys came from the Office of the Director of Public Prosecutions, which is severely understaffed.

There are currently four vacancies for senior attorneys and three entry-level positions, Shaikh said. Senior attorneys are those with over ten years’ experience. The vacancies create a problem for the office, she said, as senior attorneys are tasked with dealing with the complicated matters which include murder trials with multiple accused and retrials that require more “finesse.”

The workload per attorney is on average at least 20 cases each, with some cases being assigned to the department and not a single lawyer. In the last three years, two attorneys resigned from the department, and it hired five former prosecutors.

“Currently we have about 900 matters internally, but we have about 2,500 matters at the High Court level. We have a significant amount of matters outside (to attorneys contracted by Legal Aid). Now a lot of these were assigned pre–Public Defenders so they would have already been outside.”

In February, her department received 185 requests for attorneys which she described as a “slower month.” She said of the 29 attorneys, seven have experience of over 10 years, eight have over five years’ experience and 17 with less than five years’ experience.

Shaikh said presently with a maximum capacity of 38 attorneys, and 20 to 30 attorneys at the High Court level, if the DPP’s office were to be given its full complement of 137 prosecutors then her department will need an influx of attorneys, almost twice the size of the DPP’s as each case requires an instructing and advocating attorney.

On March 8, during a radio interview, Director of Public Prosecutions (DPP) Roger Gaspard, SC, said if his office is not given staff soon, the criminal justice system will collapse.

He said his office had fewer attorneys than there are courts. Since 2013, Cabinet had recommended 137 attorneys to be recruited but the DPP's office was operating with only 58 prosecutors.

“The average prosecutor has over 120 files, so in the context of meeting deadlines as outlined by magistrates and judges as they carry out their functions, it is extremely challenging and I have said years ago that if the situation continues, the criminal justice system will collapse. I have said that publicly, and I have said it in a joint select committee. I have been saying it.” (The Prime Minister has since proposed the hiring of foreign public prosecutors.)

Both Shaikh and Peterson said the role of the Public Defenders’ Department is crucial in the criminal justice system.

Asked about the threat of a possible collapse of the criminal justice system and the role her department can play to avoid it, Shaikh said every stakeholder has their role to play. The DPP’s office has its own challenges, she said, and her office is linked to it as cases can’t go on without prosecutors.

“For us, how it impacts on the criminal justice system is that we can only be as productive as they are. So if they are unable to come to court and do what needs to be done, then it ultimately means that our clients suffer because we can't push the matters on our own. We can't do anything without them. So we are very much linked to them in terms of their levels of productivity.”

This, she said, was one of the biggest challenges facing the department with 29 attorneys with some 900 cases to deal with. This number is expected to increase significantly when preliminary enquiries are abolished.

In December 2019, Al-Rawi said preliminary inquiries could be abolished as early as January of the following year.

Peterson said something needs to be done to attract attorneys to practice criminal law as most of the 100-plus graduates, annually, go into civil litigation. He said without both defence and prosecuting attorneys there is no criminal justice system.

“People jumping around and saying that the criminal justice system is on the verge of collapse but there are several factors to be considered in the mix. The fact is that we now have public defenders as a department that will help with the availability of defence lawyers to do cases. It is not the answer to the shortage. There is a need to attract more people towards criminal practice. How do we do that? I don't know.”

Shaikh said: “If the DPP gets its full complement, I think at that point, we would be at a serious disadvantage because they would have far more attorneys to be able to do what needs to be done because they will no longer be in the magistrates' court when the abolition of preliminary inquiries coming into play.”

Peterson said should the Public Defenders’ Department, for whatever reason, be cancelled that will place an additional burden on the criminal justice system.