Friday, September 28, 2012

No substitute for money

The Privy Council in Hamilton v R (Jamaica) [2012] UKPC 31 (16 August 2012) gives a useful little reminder on how a court will exercise its discretion to grant an extension of time for filing an appeal.

The judgment is worth reading for its reference to difficulties in getting legal representation when legal aid is either unavailable or highly restricted, particularly in Caribbean states.

The exercise of the discretion to grant an extension of time is described here:

"The circumstances that contribute to the problem of delay in the case of criminal appeals that come before the Board from the Caribbean are exceptional, for all the reasons that have been outlined above. But the question for the Board is no different. In these cases, too, the overriding consideration will be whether it is in the interests of justice that the time limit should be extended. Weight will always be given to the merits of the appeal and to the severity of the sentence. The stronger the case appears to be that the appellant may have suffered a serious miscarriage of justice, the less likely it will be that the application will be rejected on the ground that it is out of time. The Board will also be sympathetic to the problems faced by death sentence prisoners, and those in non-capital cases who have been sentenced to very long periods of imprisonment, who have to rely on the services of those who provide legal services pro bono. Those who provide such services free of charge have other demands on their time. So, while they will be expected to progress their cases as quickly as possible, it would be unreasonable to expect them to adhere to the same exacting standards as are expected of those who provide professional services for remuneration."

There are potentially insoluble problems for people serving sentences that are not particularly long and which may well be completely served by the time legal assistance for an appeal against conviction and sentence is obtained. The administrators of legal aid services may be reluctant to grant aid if a sentence is not long. Lawyers may be reluctant to accept instructions on legal aid if remuneration is low, particularly as the risk of being accused of negligence or worse is ever-present. There is no substitute for money when it comes to making the legal system work.