At the risk of again being falsely accused of writing our own letters to the editor, we venture once more into the realm of legal aid – something we have touched upon on several occasions in the past and, at the same time, apparently touching a judicial nerve.

There is no question to our mind that the legal aid system needs a thorough overhaul but there is equally no question that the way to do it is definitely not to allow the Leader of Government Business, Hon. McKeeva Bush, to hive off some of the already scarce funds and at the same time be put in ultimate charge of allocating whatever is left (if any).

The problem (or at least one of them) as we see it with the current legal aid system is that the rules developed by the court, by which the provision of legal aid is administered, go beyond the scope envisaged by the relevant statute, which stipulates only one criterion for the granting of legal aid, namely, the means (or the lack thereof) of the applicant.

The law does not entertain a criterion based upon the merits of the case, which the rules promulgated by the court purport to impose.

What happens, therefore, is that a judge dealing with an application for legal aid is required to make a preliminary decision as to the merits of the applicant’s case.

It is fundamentally wrong as a matter of principle that a premature conclusion of this nature should be reached by the court itself before any substantive hearing has been held.

Although Charles Quin QC, then president of the Cayman Islands Law Society, now Justice, took this newspaper to task two years ago for our remarks, neither Mr Quin nor anyone else ever provided a substantive explanation or rebuttal to our criticisms.

According to Mr Quin at that time, neither the Chief Justice nor any of the other Grand Court Judges pre-judge the case or any defence that may later be filed in response should proceedings ultimately be issued.

Notwithstanding this assertion, we have documentary evidence of the court reaching a preliminary adverse conclusion as to merits, contrary to the advice of no less than three counsel in the matter and, as a result, denying legal aid.

The reason given for this extra-statutory rule is the necessity to conserve the available funds in the legal aid budget.

The legislature has passed a law without providing sufficient funding to operate according to its exact terms and the judiciary has therefore unilaterally “legislated” to accommodate the situation, and to protect the government of the day from the financial consequences of its own action, instead of applying the law.

The concept of taking away the grant and denial of legal aid from the judiciary and handing it over to some kind of separate independent and impartial body is one that we have advocated for a long time but the recent proposals come nowhere near what we had in mind.

The very thought of handing over ultimate responsibility for the administration of legal aid to someone who says that “the country should not have to pay to get criminals off the hook” and that he is “no longer prepared to vote money for lawyers to defend people who shoot up our children” is frightening in the extreme.

The Human Rights Committee (HRC) is quite right to point out that the administration of justice in the Cayman Islands operates (or is supposed to operate) in accordance with the fundamental principle that all persons charged with a criminal offence have the right to be presumed innocent until proven guilty beyond a reasonable doubt – a fundamental principle that is too often honoured here in the breach than the observance.

Mr Bush is apparently also blissfully ignorant of what is said in the new Constitution on the subject of the right to legal representation, which is in turn based upon the belatedly enforceable rights conferred on us by the European Convention on Human Rights.

According to Mr Bush, “Whilst the system of jurisprudence might say everybody deserves a fair trial, nowhere does it say that the country should pay for it.”

As the HRC points out in response, “In fact, the new Constitution makes specific provision for the provision of legal representation at public expense… The statement made by [Mr Bush] was therefore incorrect as a matter of law.”

The bottom line is do we really want the leader of a sitting government assuming ultimate responsibility for the dispensation of legal aid in this country?

For impecunious defendants, it may well be a case of falling out of the judicial frying pan and into the political fire.