Legal Aid Act 1980

[7 July 1980]

[preamble and words of enactment omitted]

Short title

1 This Act may be cited as the Legal Aid Act 1980.

Interpretation

2 In this Act, unless the context otherwise requires—

"applicant" means an applicant for the grant of legal aid;

"assigned counsel" means counsel assigned pursuant to section 12 to afford legal aid to an assisted person;

"assisted person" means a person to whom a legal aid certificate has been granted;

"certificate" means a legal aid certificate granted under section 10;

"Committee" means the Legal Aid Committee established by sec tion 4;

"counsel" means a person who is a barrister within the meaning of the Bermuda Bar Act 1974 [title 30 item 3];

"court" means the Court of Appeal, the Supreme Court or a court of summary jurisdiction;

"disposable income" and "disposable capital" have the meanings respectively assigned to them in the Third Schedule;

"legal aid" means the assistance of assigned counsel in the preparation and conduct of an assisted person's case before a court;

"Minister" means the Minister responsible for Social Services.

Scope of legal aid

3 (1) Legal aid may be granted in proceedings before a court in the following cases—

(a) criminal trials on indictment, preliminary inquiries into charges of an indictable offence and summary trials on information charging an offence which is triable either summarily or on indictment;

(b) civil proceedings generally in the Supreme Court or a court of summary jurisdiction; and

(2) Subject to sections 10 and 11, legal aid may be granted to individual natural persons of the following categories—

(a) accused persons in criminal trials;

(b) appellants (including applicants for leave to appeal) in appeals against conviction or sentence and respondents to criminal appeals by prosecutors;

(d) parties generally in civil appeals.

(3) Subject to sections 10 and 11, legal aid may be granted in such special circumstances as appear sufficient to the Committee to any individual natural person for the purpose of enabling him to appeal, or to apply for leave or special leave to appeal, to Her Majesty in Council from a decision of the Court of Appeal or to respond to any such appeal or ap plication; and where legal aid is granted under this subsection, it shall include the necessary disbursements made on behalf of the assisted per son with the approval of the Committee, including the cost of instructing English solicitors and barristers.

Establishment of Committee

4 There shall be a Legal Aid Committee for the purpose of admin istering this Act. The provisions of the First Schedule shall apply to reg ulate the composition and procedure of the Committee and otherwise in relation thereto.

Functions of Committee

5 (1) The Committee shall in consultation with the Bermuda Bar Council prepare and maintain a list of barristers and attorneys who are in active private practice in Bermuda, from which shall be drawn the names of all counsel who are able and willing to represent applicants and assisted persons; the Committee may prepare rosters of such coun sel for the more efficient administration of this Act, and such rosters shall include one of counsel who are willing and able to interview and advise persons charged with criminal offences in the circumstances set out in section 7.

(2) The Committee shall receive and consider every application for legal aid made under section 8 and, subject to the following provi sions of this Act and any regulations, shall grant a certificate to an appli cant in any proper case, with or without provision for payment of contri butions by the applicant.

Expenses of legal aid

6 There shall be defrayed out of moneys appropriated annually by the Legislature for that purpose —

(a) the working operations expenses and any other expen diture incurred in the proper discharge of the functions of the Committee;

(b) the remuneration of counsel under section 13; and

Opportunity for legal advice

7 (1) Where an unrepresented accused person appears before a magistrate's court charged with a criminal offence that is specified in the Second Schedule, the magistrate shall, before requiring the accused per son to plead to the charge or remanding him or otherwise dealing with him according to law—

(a) inform him that he has the right to obtain legal advice from duty counsel; and

(b) afford him, if he so requests, an opportunity to obtain such advice before he pleads to the charge or, where the charge is one in respect of which he has an election whether to be tried summarily, before he so elects or before any evidence is called.

(2) Where—

(a) an unrepresented accused person appears before a magistrate's court charged with a criminal offence that is not specified in the Second Schedule; and

(b) it appears to the magistrate that the interests of justice require that the accused person should have legal advice made available to him,

the magistrate shall, before requiring the accused person to plead to the charge or remanding him or otherwise dealing with him according to law—

(aa) inform him that such advice can be made available to him from duty counsel; and

(bb) afford him, if he so requests, such an opportunity as is described in paragraph (b) of subsection (1).

(3) In this section‑

"duty counsel" means a counsel whose name appears on the ap propriate roster maintained by the Committee;

"unrepresented" means not represented by counsel.

Method of application

8 (1) Any person who wishes to be granted legal aid shall apply in writing to the Registrar or to the Court before which he is charged or im pleaded or in which he intends to sue, appeal or respond, and the Reg istrar or the Court, as the case may be, shall place the application before the Committee for their consideration.

(2) Every application for legal aid shall be in such form and ac companied by such statutory declaration verifying the facts stated in the application as may be prescribed by regulations.

Power to make inquiries

9 Where an application for legal aid is made, the Committee may—

(a) refer to the Director of Social Services any question con nected with the eligibility of the applicant for legal aid or as to his liability to make any contribution towards legal aid having regard to the Third Schedule;

(b) make such other inquiries as it thinks fit as to the means and condition of the applicant and as to the mer its of his case;

(c) require the applicant to furnish such information and documents as the Committee may require for the pur pose of considering his application;

(d) require the applicant to attend personally before the Committee;

(e) if the application relates to civil proceedings or to any appeal, refer it or any matter arising out of it to counsel to investigate and report thereon or on any question of law arising out of the application.

Grant of certificates

10 (1) Subject to section 3 a legal aid certificate may be granted to an applicant by the Committee if his disposable income is less than $12,000 a year:

Provided that an applicant shall be refused a certificate if he has a disposable capital of $10,000 or more.

(2) An applicant who is charged before a court with any offence specified in the Second Schedule or who is a party to a criminal appeal before a court in connection with any such charge shall, if he qualifies for the grant of a certificate under subsection (1), be entitled as of right to have a certificate granted to him by the Committee.

(3) An applicant eligible for legal aid under section 3, other than one entitled as of right under subsection (2) to the grant of a certifi cate, may, if he qualifies under subsection (1), be granted a certificate by the Committee in their discretion, and in the exercise of that discretion the Committee shall, inter alia, consider whether it is in the interests of justice to grant legal aid.

(4) The Committee may in any case of urgency grant a certifi cate to an applicant for a temporary period not exceeding twenty-eight days at a time pending the exercise by the Committee of its powers under section 9 and the consideration by them of the grant to him of a certifi cate under either subsection (2) or subsection (3).

Contribution by assisted person

11 (1) Subject to subsection (2) the Committee on granting a cer tificate may require an assisted person to pay into the Consolidated Fund a contribution towards the sums payable out of the Fund on his account under the authority of the certificate.

(2) An assisted person shall not be required to pay a contribu tion under this section if his disposable income is less than $5,000 a year and his disposable capital is less than $5,000.

(3) The Third Schedule shall govern the calculation of the dis posable income and disposable capital of an assisted person and the as sessment of the amount of any contribution which he may be required to pay under this section having regard to the amounts so calculated.

(4) If the Committee require an assisted person to pay a contri bution, they shall either require him to pay the same forthwith or by way of such periodical instalments as may be specified in the certificate granted to him.

(5) The amount of any contribution or instalment thereof be coming due may be recovered by the Accountant General by civil action in a court of summary jurisdiction.

Assignment of counsel

12 (1) Whenever a certificate is granted by the Committee it shall be the duty of the Committee to assign a counsel whose name appears upon a roster maintained under section 5 to afford legal aid to the as sisted person.

(2) In the assignment of counsel, the Committee shall have re gard to the principles that —

(a) the choice of counsel should be appropriate to the na ture of the proceedings for which the certificate is granted;

(b) so far as is practicable, taking one year with another, the volume of legal aid work should be evenly distributed between counsel listed on the appropriate roster; and

(c) so far as is consistent with paragraphs (a) and (b), any preference expressed by the assisted person should be given effect.

Remuneration of counsel

13 (1) There shall be paid out of the Consolidated Fund to as signed counsel such fees and costs as may be prescribed by regulations made under section 16.

(2) An assigned counsel shall in due course submit his bill of costs to the Committee for taxation under subsection (6).

(3) A bill of costs so submitted by assigned counsel may be ei ther a single bill covering the whole of the legal aid rendered by him or one of a series of bills.

(4) Where any fees or costs that could have been included in a bill of costs have actually been scrutinised and approved by the Regis trar, assigned counsel may retain those fees or costs, deducting them from, and accounting for them in, any subsequent bill submitted by him to the Committee.

(5) A bill of costs submitted to the Committee under this sec tion shall be in such form as the Committee may require.

(6) It shall be the duty of the Committee to tax in accordance with regulations made under section 16 every bill of costs properly sub mitted to the Committee under this section.

Charge on money or property recovered

13A (1) Subject to subsections (2) and (3), any capital money actu ally recovered by an assisted person in or as a result of any relevant pro ceedings in excess of the amount of $5,000, and any property actually so recovered to a value exceeding that amount, shall stand charged in favour of the Government with the full amount paid in respect of the certificate granted to that person in respect of those proceedings, less the amount of any contribution paid by him in respect of that certificate.

(2) In subsection (1), "relevant proceedings" means, subject to subsection (3), any proceedings described in section 3(1)(b) or any court appeal in a civil cause or matter.

(3) The charge created by subsection (1) shall not extend to money or property recovered by one spouse from the other spouse in or as a result of any matrimonial proceedings.

(4) The charge created by subsection (1) may be enforced by the Attorney-General in any court of competent jurisdiction.

Prohibition against taking fees from assisted person

14 No counsel who acts for an assisted person under the authority of a certificate shall take or agree to take or seek from that assisted per son or from any other person any fee, profit or reward, pecuniary or oth erwise in respect of any work done for or on behalf of the assisted person after the issue of that certificate and included within the scope of that certificate.

False information

15 Any applicant or assisted person who for the purposes of this Act knowingly makes any false statement or knowingly supplies any false information commits an offence:

Punishment on summary conviction: imprisonment for 6 months or a fine of $1,000.

Power to make regulations

16 (1) The Minister after consultation with the Chief Justice may make regulations consistent with this Act prescribing anything which by this Act is to be or may be prescribed and generally for the better carry-
ing out of its purposes and provisions.

(2) Without prejudice to the generality of subsection (1), regu lations may make provision—

(a) as to the information to be supplied by an applicant to the Committee;

(b) as to the cases in which a person may be refused legal aid by reason of his conduct as an applicant or assisted person;

(d) for the recovery in civil cases of costs awarded to an as sisted person by order of the court and payable other wise than by another assisted person;

(e) for taxation of bills of costs submitted by counsel in legal aid cases and for review of and appeals from such taxa tion;

(f) to meet the special circumstances arising where—

(i) an applicant seeks legal aid in a matter of spe cial urgency;

(ii) an assisted person is granted a certificate after having previously retained counsel privately in regard to the same proceedings;

(iii) there is a relevant change in financial circum stances of an assisted person before proceedings are concluded.

(3) Regulations under this section shall be subject to the nega tive resolution procedure.

Revocation and discharge of legal aid certificate

17 (1) Where the Committee is satisfied that an assisted person has wilfully failed to comply with any provision of this Act or the regula tions as to information to be supplied by him, or in furnishing such in formation has wilfully or recklessly made a false statement or false rep resentation, they may if they think fit —

(a) where such act or omission took place prior to the grant of the certificate, revoke the certificate ab initio; or

(b) where the act or omission took place after the grant of the certificate, discharge the certificate with effect from the date when the act or omission occurred.

(1A) If on account of information received by him from any source assigned counsel is at any time of the opinion that by reason of a change in the circumstances of the assisted person the continued exten sion of legal aid to the assisted person can or may no longer be justified, assigned counsel shall—

(a) inform the Committee by notice in writing of the facts so far as they are known to him, specifying to the best of his ability the time when the change occurred; and

(b) give a copy of the notice to the assisted person.

(1B) Upon receipt of a notice under subsection (1A), the Com mittee may adjudge that such a change as aforesaid has indeed oc curred, determine the date on which it occurred and discharge the cer tificate.

(1C) The Committee shall not exercise any of its powers under subsection (1) or (1B) until the assisted person has been given an op portunity to show cause why the certificate should not be revoked or dis charged, as the case may be.

(2) The revocation or discharge of a certificate shall not affect the right of counsel to receive remuneration under section 13 in respect of any work done by him which is included within the scope of that cer tificate before the revocation or discharge thereof took effect.

(3) Notice of revocation or discharge of a legal aid certificate shall forthwith be given in writing to the Registrar and to assigned coun sel.

(4) The Attorney-General may, by action in any Court of com petent jurisdiction, recover from an assisted person whose certificate has been revoked or discharged, for the benefit of the Consolidated Fund, any amount which has been paid thereout in consequence of the grant of that certificate, with effect in the case of revocation from the date of the grant and in the case of discharge from the date of the discharge.

Annual report

18 (1) The Committee shall, as soon as practicable after the 31st day of March in every year submit a report to the Minister on the work of the Committee during the preceding year.

(2) The Minister shall, as soon as practicable after receiving the report of the Committee, lay a copy of the report before each House
of the Legislature.

Power to increase figures to maintain values

19 (1) The Minister may by Order, whenever it appears to him to be necessary to do so by reason of changes in the value of money, in crease any of the figures specified in section 10, section 11 or the Third Schedule and, upon the coming into effect of any such Order, the re spective provisions of this Act shall be amended accordingly.

(2) An Order under this section shall be subject to the affirma tive resolution procedure.

Repeal

20 [omitted]

Commencement

21 [omitted]

[this Act was brought into operation on 1 November 1980 by BR 68/1980]

FIRST SCHEDULE (Section 4)

Legal Aid Committee

1 (1) The Committee shall consist of five members resident Bermuda to be appointed by the Minister acting after consultation with the Chief Justice, one of whom shall be appointed Chairman.

(2) The Chairman shall be a person who holds or has held the judicial office of a judge or magistrate in some part of the Common wealth.

(3) The other members shall be two members in good standing of the Bermuda Bar nominated by the Bermuda Bar Council, an ac countant nominated by the Bermuda Institute of Chartered Accountants and a person having relevant experience of social work in Bermuda.

2 (1) The members of the Committee shall hold office for a term of three years from the dates of their respective appointments.

(2) Vacancies arising shall be filled by appointment in accor dance with paragraph 1(1), having regard to the qualifications of the re tiring member.

(3) A retiring member shall be eligible for reappointment.

3 Any three members of the Committee shall constitute a quorum at any meeting thereof.

4 Matters before the Committee shall be decided by a majority of the members present and voting and in the event of an equality of votes the Chairman, or other person presiding shall have an additional casting vote.

5 In the absence of the Chairman from any meeting of the Com mittee the members present may elect one of their number to preside thereat.

6 The Committee may delegate to any one or more of its members power to grant a temporary legal aid certificate in accordance with sec tion 10(4).

7 Fees shall be payable to the Chairman and members of the Committee in accordance with provisions made under the Government Authorities (Fees) Act 1971 [title 14 item 6].

8 No member of the Committee shall be liable in any proceedings criminal or civil for anything done or omitted to be done by him bona
fide in the exercise of the functions of the Committee under this Act.

9 The Minister shall assign a public officer to act as the secretary to the Committee.

SECOND SCHEDULE (Section 10(20))

Specified Offences

(a) Under the Criminal Code [title 8 item 31]

	Treason	s.82
	Accessory to treason	s.83
	Concealment of treason	s.84
	Treasonable felonies	s.85
	Inciting to mutiny	s.88
	Seditious offences	s.94
	Unlawful assembly	s.99
	Riot and other riotous offences	ss. 100, 102,103 or 104
	Corruption	ss. 111, 116 or 117
	Perjury	s.120
	Piracy and related offences	ss.159, 160 or 161
	Hijacking aircraft	s.162
	Counterfeiting and other coinage offences	ss. 164, 165, 167, 168 or 169
	Unnatural offences	ss.177 or 178
	Carnal knowledge	s.180
	Incest	ss.191 or 192
	Bigamy	s.201
	Defamation	ss.214 or 215
	Explosive offences	ss.224, 225, 226, 227, 228 or 229
	Premeditated murder	s.286A
	Murder	s.288
	Attempted murder	s.289
	Threats to murder	s.290
	Conspiracy to murder	s.291
	Manslaughter	s.293
	Rape or attempt	s.324 or 325
	Assault with intent to rape	s.326
	Robbery	s.345
	Assault with intent to rob	s.346
	Burglary	s.354(2)
	Housebreaking etc.	ss.354, 356
	(when prosecuted indictably)	356 or 357
	False pretences	s.369
	Receiving	s.374
	False accounting	ss.397 or 398
	Bankruptcy fraud	ss.400 or 401
	Forgery	s.409
	Uttering	s.410
	Arson or attempt	ss.426, 427 or 430

(b)	Firearms Act 1973 [title 10 item 5]
	Firearm offences with intent	ss.15, 16 or 17

(c)	Misuse of Drugs Act 1972 [title 11 item 14] [when prosecuted indictably]

	Importing or exporting controlled drug	s.4
	Producing or supplying controlled drug	s.5
	Handling controlled drug	s.7

(d) Any other Act

Any other offence for which on a first conviction the offender may be liable to imprisonment for 5 years or upwards

THIRD SCHEDULE (Section 11(3))

Calculation of Legal Aid Contribution

1 (1) A person's legal aid contribution shall be the aggregate of -

(a) an amount, as calculated under sub-paragraph (3), ("the income portion") referable to his disposable income; and

(b) an amount, as also so calculated, ("the capital portion") referable to his disposable capital.

(2) An assisted person's contribution shall be endorsed on his certificate as a single amount.

(3) The income portion and the capital portion, in relation to an assisted person, are respectively the amount set forth or prescribed

	Disposable Income Bracket	Income Portion
	Less than $5,000	Nil
	$5,000 or more but less than $7,500	$100
	$7,500 or more but less than $10,000	$250
	$10,000 or more but less than $12,000	$500

	Disposable Capital Bracket	Capital Portion
	Less than $5,000	Nil
	$5,000 or more but less than $7,000	25% of the amount by which the disposable capital exceeds $5,000
	$7,000 or more but less than $10,000	50% of the amount by which the disposable capital exceeds $5,000

Bermuda Consolidated Legislation

Legal Aid Act 1980