In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo - Judgment

¶ __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 1 of 13 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 LACR0130/2020; CACR 1/2019 (Ind. 100/2017) 4 5 IN THE MATTER OF THE LEGAL AID ACT 2015 6 7 AND IN THE MATTER OF AN APPEAL AGAINST THE DECISION OF THE 8 DIRECTOR OF LEGAL AID PURSUANT TO SECTIONS 4 AND 38 OF THE LEGAL 9 AID ACT 2015 REVISION 10 11 AND IN THE MATTER OF AN APPLICATION BY THE APPLICANT DAVID KARL 12 LOBO 13 14 15 TAKEN ADMINISTRATIVELY ON THE PAPERS WITHOUT A HEARING 16 17 18 19 20 HEADNOTE 21 Legal Aid Act (2015 Revision) – Sections 38, 21(3) and 24(1) and (2) - 22 Reconsideration of Legal Aid application - Issues arising: complex legal aid 23 case, right to legal assistance. 24 25 26 27 28 JUDGMENT 29 30 31 32 33 34 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 2 of 13

¶ [1] The Applicant applied for an extension of his Legal Aid Certificate (LAC) to cover 1 an appeal against his conviction and sentence on the 22nd December 2016. 2

¶ [2] The appellant seeks to appeal the Director of Legal Aid’s decision not to grant the 3 extension of legal aid in order to engage foreign lead counsel in respect of the CACR 4 1/2019 (Ind. 100/2017) before the Cayman Islands Court of Appeal (CICA). 5 THE FACTUAL CONTEXT OF THE APPEAL AGAINST THE DIRECTOR’S DECISION 6

¶ [3] An initial application for Legal Aid was granted to the Appellant on the 5th of May 7 2020 – LACR 130/2020. This grant was subject to a cap of $5000.00 only, not to be 8 exceeded without further grant or approval. 9

¶ [4] On the 2nd of June 2021, the CICA ordered that the matter be listed for hearing at the 10 next session of the Court. 11

¶ [5] On the 21st July 2021, the Legal Aid Director (hereinafter ‘the Director’) received 12 correspondence from the appellant who attached correspondence addressed to his 13 counsel. The Director then wrote to the Appellant’s counsel on 26th of July noting 14 the contents of the correspondence and the directions from the CICA. 15

¶ [6] The Director requested “a substantive response from Listed Counsel on the matter 16 to better appreciate the issues at hand and whether there are any pending extension 17 applications for consideration.” 18

¶ [7] The application for extension of Legal aid so that the appellant could have the 19 assistance of Queen’s Counsel was made by counsel for the appellant on the 23rd 20 August 2021. Counsel referred to the correspondence received by the Director from 21 the appellant on the 21st July 2021 and stated further: 22 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 3 of 13 “The basis of the application is set out by Mr. Lobo. However most significant 1 is the allegation made by Mr. Perez Ruiz regarding [PM]1”. 2 3 Counsel went on to state: 4 5 “The allegations being made in the grounds of appeal are not complex. 6 However, the need for external counsel will arise in this limited way. There is 7 going to be an exploration of the relationship between a particular member of 8 the bar and [PM]. For this reason and this reason only it is asked that Mr. Lobo 9 is represented by queens (sic) counsel at an appeal hearing…” 10 11 12

¶ [8] Counsel also indicated that an additional reason for ‘alternative counsel’ was because 13 counsel was suffering the ill effects of COVID-19. 14 15

¶ [9] This application for an extension was refused. On the 23rd August the Director 16 responded as follows: 17 18 “Legal Aid Extension: Refused 19 Further to reviewing counsel’s request dated 23rd August 2021, the Assisted 20 Person[s] correspondence dated 10th August 2021 and reviewing the matter 21 generally the threshold for the appointment of Lead Counsel (foreign or local) 22 had not been met I[n] accordance to the law. While it is accepted that the issues 23 raised may be considered sensitive, it is not considered complex in terms of s24 24 of the Legal Aid Act. It would seem the Crown is being represented by local 25 Crown Counsel and the Assisted Person current Listed Counsel – Ms. Fosuhene, 26 is considered a senior capable Attorney at the local bar and this appeal matter 27 is well within her capabilities having handled such sensitive matters previously. 28 29 However, having regard to counsel’s current situation, if she can identify an 30 attorney at her firm or other suitable Listed Counsel to support her on the day 31 of the hearing and provide us with an estimate of time required for counsel to 32 prepare, review [the] matter and attend the 4 hour appeal hearing with Ms. 33 1 Anonymised __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 4 of 13 Fosuhene, we will consider adding another local counsel to assist. Counsel shall 1 revert to the Director on or before the 26th August 2021 with the details if this 2 option is accepted.” 3 4

¶ [10] The appellant made a request for a reconsideration of the Director’s decision to 5 refuse the extension of legal for lead counsel on the 24th of August 2021. On the 25th 6 of August 2021 the appellant wrote to the Director outlining the reasons why he 7 submitted that his application had met the threshold “that deems the matter [appeal] 8 complex” pursuant to s.24 of the Legal Aid Act. The appellant wrote: 9 10 (a) The commission of the offence to which the case relates has given rise to 11 national publicity and widespread public concern and has prejudiced my 12 case. My appeal hearing alone will give rise to national publicity and 13 widespread public concern, given that I was previously employed as a 14 Customs Officer. Also, the fact that the ex-Director of Public 15 Prosecutions and Attorney Alexander Davies have allegedly conspired to 16 induce a witness to testify. 17 (b) A successful defense to the charges requires highly specialist knowledge. 18 A lead counsel with the experience to successfully argue the allegations 19 made in the affidavit and unravel the complexities in and of itself is 20 undoubtedly necessary to prove that my conviction was unsafe. 21 (c) … 22 (d) … 23 (e) … 24 (f) … 25 (g) The offence attracts a sentence exceeding ten years. In my case, the 26 sentence attracted a sentence of 16 years, which is exceedingly 27 excessive.” 28 29 30 31 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 5 of 13

¶ [11] On the 31st August 2021, the application for reconsideration was deferred. The 1 Director stated as follows: 2 “Legal Aid Extension (reconsideration of QC): Deferred. 3 Further to the Assisted Person's response received 24th and 25th August 2021, 4 the Director's observes that Listed Counsel has not responded to the offer 5 provided of assistance of a second local Attorney for the hearing and other 6 matters. While note is taken of the detail response of Mr. Lobo, the Director 7 expects Listed Counsel to also address the issue. As we take note that the matter 8 is listed for hearing on the 3rd September 2021 and Mr. Wainwright from the 9 ODPP is listed as representing the Crown at the hearing. 10 11 Further to the detailed decision and proposal made 23rd August 2021, the 12 Director seeks a substantive response from Ms. Fosuhene on the matter, as we 13 are advised that the Crown is not using a Lead Counsel (foreign or local), the 14 position was properly considered previously and the hearing is scheduled for 15 this week. The response of counsel is requested so that the Director can properly 16 reconsider the request.” 17 18 19

¶ [12] In her response to the Director, counsel for the appellant noted: 20 “It is asked that there be limited grant of legal aid for Mr. Lobo to be represented 21 by QC who can be briefed by me but as any QC may be able to attend via zoon 22 for any hearing the costs could be minimized as the only additional cost would 23 be the call fee and the cost of the work permit.” 24 25 Counsel offered that “an experienced QC should be able to grasp the nettle rather 26 quickly… and then deal with the matter in short order when it comes to court.” 27 28

¶ [13] Subsequent to this response from counsel for the appellant, the application for 29 reconsideration, was refused on the 1st September 2021. The Director set out the 30 following reasons. 31 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 6 of 13 “1. The current case before the Court of Appeal and additional allegations 1 of possible collusion is not deemed complex in nature. This point may 2 have been accepted by counsel {23rd August 2021), as she advised in 3 email correspondence, "The allegations being made in the grounds of 4 appeal are not complex. However, the need for an external counsel will 5 rise in this limited [way].There are going to be exploration of the 6 relationship between a particular member of the defence bar and Mr. 7 Moran". We believe at the Court of Appeal level, this matter can be 8 adequately addressed in a manner by Counsel or the Court without the 9 need for a foreign lead Counsel. The issues are sensitive in nature but 10 not complex. 11 12

¶ [2] The Legal Aid Act limits the Director's ability to provide a foreign lead 13 counsel save and except in certain circumstances and this matter does 14 not reach that threshold for a foreign lead counsel. Section 21(3} stated, 15 "The Director shall not approve the engagement of foreign counsel to 16 conduct any legal aid case unless such case is a complex one and it is 17 not possible to assign the services of a generally admitted attorney-at- 18 law because - (a) every reasonable effort has been made to obtain the 19 services of a listed attorney-at-law for the assisted person; and (b) there 20 is no generally admitted attorney-at-law on the Islands who is willing 21 and able to advise or represent that person. Neither the Assisted Person 22 or (sic) Counsel has adequately addressed this matter. There are senior 23 Attorneys available at the local bar who do not have a close working 24 relationship with the Attorneys mentioned, that if possible can assist 25 with this matter. The Director was not provided with a list of local 26 Attorneys who have been approached and rejected the brief. 27 28

¶ [3] In determining whether the matter was complex, the Director reviewed 29 section 24(2) and in this case, three criteria was not found or accepted 30 (the Assisted Person's correspondence dated 25th August 2021 noted but 31 point (b) not accepted. 32 33 In all circumstances the expenditure is not a justified public expense at 34 this stage and the Director has made reasonable proposals for the Listed 35 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 7 of 13 Counsel to be assisted during the hearing, if needed. Alternatively, 1 Listed counsel has not adequately explored highly experience senior 2 local or even regional Attorneys that may have been able to assist. This 3 case is not one of a particular gravity or the utmost complexity.” 4 5

¶ [14] The appellant on the 13th of September again wrote to the Legal Aid Director. By 6 this point previous counsel for the appellant had been granted leave to come off 7 record. The appellant was now unrepresented. The appellant provided a list of 8 approved legal aid attorneys that he had contacted with regard to his appeal and their 9 responses. None of the attorneys that he had contacted, numbering thirty-one (31) 10 could deal with his matter. The Appellant indicated that several firms including 11 Samson Law, Brady Attorneys and McGrathTonner were excluded altogether 12 because of clear conflict of interests. 13 14

¶ [15] He indicated further that one attorney, Ms. Kathleen Ryan was willing to take on the 15 matter with “the contingency (sic) that a lead counsel be assigned to handle the 16 appeal” 17 18

¶ [16] Upon receipt of that letter, the Legal Aid Director responded to the appellant 19 advising him that because the appellant had the instant appeal pending before the 20 Grand Court pursuant to s.38 of the Legal Aid Act, she was unable to make an 21 assignment to Ms. Ryan with the contingency referred to above. However, if the 22 contingency were removed, the certificate could be transferred to Ms. Ryan. 23 24

¶ [17] On the 27th September, the appellant confirmed that the only other attorney on his 25 list who had indicated that he would consider representing him, Mr. John Meghoo, 26 had now indicated that he could not assist. 27 28 29 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 8 of 13 THE STATUTORY CONTEXT OF THE PRESENT APPLICATION 1 2

¶ [18] Sections 21(2) and (4) of the Legal Aid Act state as follows: 3 4 ”21. (2) The Director shall not approve the engagement of foreign 5 counsel to conduct any legal aid case unless such case is a 6 complex one and it is not possible to assign the services of a 7 generally admitted attorney-at-law because- 8 (a) every reasonable effort has been made to obtain the 9 services of a listed attorney-at-law for the assisted 10 person; and 11 (b) there is no generally admitted attorney-at-law on the 12 Islands who is willing and able to advise or represent 13 that person. 14 (3) … 15 (4) For the purposes of this section, “foreign counsel” means an 16 attorney- at-law of a Commonwealth jurisdiction who is 17 engaged from outside of the Islands to undertake legal aid 18 services in the Islands pursuant to this Law.” 19 20 21

¶ [19] Section 24 of the Act states: 22 23 “24. (1) The Director may procure, by contract, legal aid services on 24 behalf of assisted persons in certain criminal cases which he 25 determines, in accordance with subsection (2), to be complex 26 legal aid cases. 27 (2) In determining whether a matter is a complex legal aid case the 28 Director shall take into account whether the case satisfies at 29 least three of the following criteria - 30 (a) the commission of the offence to which the case relates 31 is likely to give rise to national publicity and 32 widespread public concern; 33 (b) a successful defence to the charges requires highly 34 specialist knowledge; 35 (c) the elements of the offence are of a technical nature 36 and a successful defence requires an attorney-at-law 37 with the relevant technical legal knowledge; 38 (d) the elements of the offence involve an international 39 dimension; 40 (e) a successful defence against the charges requires a 41 combination of legal, accountant, investigative and 42 other expert skills; 43 (f) the charges are based on allegations of terrorism; 44 (g) the offence attracts a sentence exceeding ten years; 45 (h) the offence is of a violent or sexual nature involving 46 multiple victims; or 47 (i) the offence involves complex financial or legal 48 transactions or records.” 49 50 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 9 of 13 COURT’S CONSIDERATION AND DETERMINATION 1 2

¶ [20] Section 21(2) is mandatory in nature. The Director cannot engage foreign counsel 3 to conduct a legal aid case unless the two aspects of subsection 2 are satisfied. In 4 the reasons for her decision the Director addressed each of aspect of the subsection 5 – the complexity of the case and the efforts to engage a listed or generally admitted 6 attorney at law – as follows: 7 8 The complexity of the case 9 10

¶ [21] The Director found that the appellant’s case was not complex in nature. She relied 11 specifically on the indication in correspondence addressed to the Director on the 21st 12 July 2021 from the appellant’s then counsel, Ms. Fosuhene, that “the allegations 13 made in the grounds of appeal are not complex.” Counsel, Ms. Fosuhene expressed 14 further that: “the need for external counsel will arise in this limited way. There is 15 going to be an exploration of the relationship between a particular member of the 16 bar and Mr. Moran. For this reason and this reason only it is asked that Mr. Lobo 17 is represented by queens counsel at an appeal hearing…” 18 19

¶ [22] The Director also addressed s.24(2) of the Act in seeking to determine whether the 20 case was a complex one. Section 24(2) stipulates: 21 “In determining whether a matter is a complex legal aid case the Director shall 22 take into account whether the case satisfies at least three of the following 23 criteria…” 24 25 26

¶ [23] The Director considered whether the 3 criteria that the appellant had suggested in his 27 letter of 25th August 2021, together met the threshold for his case to be deemed 28 complex. The Director accepted that while (a) and (g) of s.24(2) were satisfied, she 29 was unable to agree with the appellant that s.24(2)(b) was also satisfied; s.24 (2)(b) 30 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 10 of 13 being that “the successful defence of the charges require highly specialist 1 knowledge”. 2 3

¶ [24] I am satisfied that there is nothing to support the appellant’s suggestion that the 4 successful defence to the charges requires highly specialist knowledge. There was 5 nothing before the Director from which she could have made that finding. Indeed 6 what was before her from Ms. Fosuhene was an indication that the need for external 7 counsel would only arise in a very limited way and that in essence it was only 8 because of the nature of the relationship to be explored that foreign counsel was 9 being sought at all. 10 11

¶ [25] I have reviewed the criteria in s.24(2). There is no other criteria apart from (a) and 12 (g) which applied to the appellant’s case. I am satisfied that the legal aid Director 13 was correct in her conclusion that the Appellant’s case did not satisfy at least three 14 of the criteria stated in s.24(2). This coupled with the response from Ms. Fosuhene 15 was sufficient for the Director to find as she has done that this was not a complex 16 case. 17 18 Efforts to engage a listed or generally admitted attorney at law 19 20

¶ [26] Once the Director had determined that the appellant’s case was not complex, she 21 could not move to engage the services of a foreign attorney pursuant to s.21(3). 22 However, The Director also addressed the second stricture imposed by s.24 (2) 23 efforts to engage a listed or generally admitted attorney at law. 24 25

¶ [27] The Director noted in the reasons for her decision on the reconsideration that 26 “neither the Assisted Person [the Appellant] or Counsel has adequately addressed 27 this matter.” The Director stated that she had not been provided with “a list of local 28 attorneys who have been approached and rejected the brief.” 29 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 11 of 13

¶ [28] I note from the Chronology above that the Appellant, by letter dated the 13th of 1 September 2021, wrote to the Director attaching a list of approved legal aid attorneys 2 whom he had contacted with regard to his appeal and their responses. Of the thirty- 3 one attorneys that he contacted only one attorney indicated that she was willing to 4 represent Mr. Lobo. 5 6

¶ [29] What is of particular importance however is, that by this date the appellant had 7 already appealed the Director’s decision of the 1st of September 2021 pursuant to 8 s.38 of the Legal Aid Act. The appeal was now to be dealt with by a Judge of the 9 Grand Court. The Director could not alter her decision on the reconsideration. The 10 Director was correct to conclude that, at the time of her reconsideration of her 11 decision, there was nothing before her of the appellant’s or his Counsel’s efforts to 12 secure the services of a listed attorney-at-law nor was there any indication that there 13 was no generally admitted attorney willing and able to advise or represent the 14 appellant. 15 16

¶ [30] The two mandatory conditions imposed by s.21(3) before engaging the services of a 17 foreign counsel were therefore not satisfied. The Director was correct to confirm 18 her initial decision which was that in those circumstances the application for the 19 extension of legal aid to cover the costs of a foreign lead counsel should be refused. 20 The Director acted according to the provisions of s.21(3) as read with s.24(2). 21 22

¶ [31] The appeal against the refusal of the Director to extend the Legal aid Certificate to 23 cover the cost of a foreign lead counsel is dismissed. 24 25 26 27 28 29 30 31 32 __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 12 of 13 FURTHER CONSIDERATIONS 1 2

¶ [32] It remains that the appellant needs counsel to assist him with his case before the 3 CICA. The appellant has a constitutional right as a person of insufficient means, and 4 where the interests of justice require to be represented at public expense.2 5 6

¶ [33] In her reasons for refusing the extension of legal aid for foreign lead counsel, the 7 Director noted that “Listed Counsel has not adequately explored highly experienced 8 senior local or even regional attorneys that may have been able to assist.” The List 9 attached to the appellant’s letter of 13th of September detailing his efforts locally may 10 satisfy part of the Director’s concerns. The Appellant is now without counsel since 11 Ms. Fosuhene was granted leave to come off record by the CICA. 12 13

¶ [34] Ms. Ryan has given an indication that she is willing to assist the appellant but only 14 if lead counsel is assigned to handle the appeal. I take from this that Ms. Ryan 15 believes that she may not have the requisite experience to deal with this matter before 16 the CICA. 17 18

¶ [35] In the interests of justice, and without intending to set any precedent in this regard, 19 there is a course that may be adopted in this case. The Director may consider that a 20 further factor affecting complexity exists on the facts of this case. This further factor 21 could be that “there are particular circumstances of the case which merit 22 consideration as one of the criteria to be satisfied under s.24(2) of the Act.” 23 24

¶ [36] The particular, and if I may observe, unusual circumstances, are as follows: 25 26 27 28 29 2 Section 7 (2)(d) of the Cayman Islands Constitution Order 2009. __________________________________________________________________________________________________________ Judgment: LACR0130/2020: In the Matter of an Appeal of the Decision of the Legal Aid Director and In the Matter of David Karl Lobo : Coram: Carter J. (Actg.). Date: 15th October 2021 Page 13 of 13 i. The Director accepts from evidence presented to her by the appellant that: 1 2 (a) the appellant has made every reasonable effort to obtain the services of 3 a listed attorney-at-law and; 4 (b) there is no generally admitted attorney-at-law on the Islands who is 5 willing and able to advise or represent the appellant. 6 7 ii. The only attorney willing to assist the appellant is an attorney who has indicated 8 that she would be unable to assist unless she has lead counsel as she may be too 9 inexperienced to properly represent the appellant, on her own, before the CICA 10 although the issues in the case may be sensitive not complex. 11 12

¶ [37] If the Director, having considered all of these factors, finds that these particular 13 circumstances in this case lead her to say that the case is one to be considered under 14 s.24(2) of the Act in the manner that I have outlined at paragraph 33 above, and the 15 Director also finds that there are at least two other matters listed in the said criteria 16 under s.24(2) that she accepts applies in this case, it may not be inappropriate for the 17 Director to consider whether, taken together, they lead her to conclude that the matter 18 is complex. 19 20 Dated this the 15th October 2021 21 22 Mme. Justice Marlene Carter 23 Acting Judge of the Grand Court 24 25