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Fully govt-funded legal aid has its challenges: Legal fraternity

Fully govt-funded legal aid has its challenges: Legal fraternity

Source: Straits Times
Article Date: 06 Nov 2020
Author: Fabian Koh

It will ensure easier access to justice for the lower-income and boost the country's reputation as a legal hub but may be open to abuse.

A proposed fully government-funded public defenders' office in Singapore has been lauded by the legal fraternity, with all interviewed agreeing that it will ensure access to justice for the lower-income and boost the country's reputation as a legal hub.

But they also warned of challenges, including deciding how much to pay the lawyers and having safeguards to ensure people do not misuse and abuse the system.

Legal professionals made these points on Thursday (Nov 5), a day after Law and Home Affairs Minister K. Shanmugam announced in Parliament that the Government is studying the feasibility of setting up a public defenders' office. The Law Ministry is in favour of it, he added.

In such a set-up, the Government will pay and employ the lawyers in a separate structure, to defend alleged criminals who cannot afford to pay for their own lawyers.

Ms Stefanie Yuen-Thio, joint managing partner at TSMP Law Corporation, said the proposal is an "enormously significant step".

"For decades, the Government's position was that it didn't make sense to be both prosecuting the accused and paying for his defence."

The move, she added, is an acknowledgement of the Criminal Legal Aid Scheme - a public-private partnership to provide pro bono legal aid to the needy - and that establishing a government body would support the effort with more resources.

Law Professor Kumaralingam Amirthalingam from the National University of Singapore, said that having a public defenders' office would be a "very important signal by the Government that it is committed to a criminal justice system that... respects the presumption of innocence".

It will eliminate situations of unequal outcomes, simply because accused individuals who are rich can afford lawyers to defend them properly.

Boost efficiency of legal system

He also said it would improve the efficiency of the legal system as cases can move through the courts faster.

Explaining, he added: "If you're not represented by a lawyer, then it takes longer as you don't know the system, and will take more time to consider whether to plead guilty or to claim trial."

A public defenders' office would also "benefit Singapore in terms of international reputation, and in global rankings on rule of law and justice," said Prof Kumaralingam.

Criminal lawyer Rajan Supramaniam, a consultant at Edmond Pereira Law Corporation, stressed that the rules and guidelines governing the functions of the office will need to be clear.

"The Government will have to ensure that people don't take advantage of it, that members of public do not abuse it, and only the needy will be given the legal aid," he said.

But despite the exploitation of such schemes in some countries, "it's not a reason not to do something", Prof Kumaralingam said, adding that appropriate measures would need to be implementedto monitor and audit the office.

He also pointed out that the public defender's office could provide an avenue for employment, functioning as a law firm where lawyers can pursue a career.

But he warned that their salaries could lead to serious cost issues; some countries with similar schemes rely on private lawyers and pay them a fee that tends to be less competitive than those in private practice.

"Presumably, it can't be in the same league of funding, but at the same time has to provide sustainable means(for the lawyers)," he said.

Risk of accused demanding lawyer pursues all options

The challenge is to fund the programme sufficiently for the long term to attract legal talent, without wasting public funds, said lawyers.

Mr Rajan said the pay will have to match that in private practice in order to be attractive.

Also, the nature and volume of the case load need to be managed, including being mindful that the office has enough lawyers to handle them.

Another important factor is whether the lawyers will have the freedom to select cases, he added. Legal eagles in private practice can do it, according to their specialisation in say, white collar or corporate crime.

Mr Rajan also warned of the risk that, since the financial burden is not on the accused, the individual will want to exhaust all options even if there is no merit in the case.

Prof Kumaralingam said that while there is potential for the public defenders' office to cannibalise a bit of private practice work, it is really to help those who would otherwise be left on their own.

Ms Yuen-Thio stressed that the dedication lawyers have shown in pro bono cases, of which the Parti Liyani case is one example, "is born of the sense that we have an obligation to use our skills to help those who need it".

She said the public defenders' office should be mindful not to diminish the "crusading zeal" of lawyers.

"We wouldn't want the next generation of practitioners to feel less of an urgency because the government will handle it."


Experiences elsewhere

BRITAIN

There has been much unhappiness over large legal aid fees, especially in cases where such aid was spent on lengthy trials in which defendants were ultimately convicted.

In one case, Ben Butler and his partner Jennie Gray were convicted of murdering Butler's six-year-old daughter and of child cruelty. They were both granted nearly $2.64 million in legal aid expenses, covering their criminal cases and a custody battle with the child's grandparents.

There are also reports of rich defendants who received legal aid as their assets were frozen, but remained wealthy as not all their assets were seized.

In 2012, about 50 defendants with more than $1.76 million in illegally obtained assets were found to have received legal aid.

For example, London metals trading tycoon Virendra Rastogi, who owned a $10.55 million home and was chauffeur-driven to court daily, was given $8.79 million worth of aid.

The British government has had to implement drastic cuts to legal aid budgets since 2012.

Lawyers deemed the reformed fees as inadequate, and went on strike in 2014 and 2018, disrupting court proceedings and delaying the resolution of criminal cases.

For example, a drug dealer was able to keep his alleged $7.9 million fortune, because of delays in finding him a legal aid lawyer for confiscation hearings.

After the 2018 strike, the legal aid lawyers were given a $40 million fee rise.

HONG KONG

Hong Kong has a fully government-funded public defender scheme that outsources part of its cases to private lawyers and the Law Society.

It spent a total of $217 million on civil and criminal legal aid in 2017, and has experienced escalating legal aid budgets, owing to a continual increase in lawyers' fees of around 4 per cent to 10 per cent yearly.

AUSTRALIA

New South Wales offers a fully government-funded public defender scheme, in which two-thirds of its cases are outsourced to private lawyers.

Government expenditure on criminal legal aid has seen a 50 per cent rise from 2015 to last year.

Lloyd Rayney, a lawyer accused of murdering his wife, received about $2.3 million in legal aid in 2013. Paul Cohrs was accused of murdering his mother and brother in 2018. He had almost $1.5 million in assets but received legal aid as the assets were frozen.

NEW ZEALAND

Its fully government-funded public defender scheme saw total costs soaring 62 per cent from $101 million in 2006/2007 to $164 million in 2018/2019.

An independent review in 2009 found the system was open to abuse by lawyers. They delayed or changed pleas midway through the legal process, maximised legal aid payments, and demanded or accepted top-up payments from clients.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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