Legal Aid Amendment Act 2003
LEGAL AID AMENDMENT ACT 2003

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BERMUDA
2003 : 24

LEGAL AID AMENDMENT ACT 2003

[Date of Assent: 17 December 2003]

[Operative Date: 19 January 2004]

WHEREAS it is expedient to amend the Legal Aid Act 1980:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Citation and commencement
1 This Act which amends the Legal Aid Act 1980 (hereinafter
referred to as "the principal Act") may be cited the Legal Aid Amendment
Act 2003 and shall come into operation on a day to be appointed by the
Minister by notice published in the Gazette.

Amends section 2 of principal Act
2 Section 2 of the principal Act is amended

(a) by deleting the definition of "legal aid" and substituting
the following—

""legal aid" means legal services by way of legal advice,
assistance or representation provided pursuant to
this Act;

"Legal Aid Counsel" means the Senior Legal Aid Counsel
and other Legal Aid Counsel appointed under section
5B; and

(b) in the definition of "Minister" by deleting the words
"Social Services" and substituting the words "legal aid".

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Amends section 3 of principal Act
3 Section 3 of the principal Act is amended—

(a) by inserting next after subsection (1) the following new
subsection

"(1A) For the purposes of subsection (1)(a), legal aid in
respect of proceedings before a court extends to any
proceedings incidental to such proceedings, including
bail proceedings, whether before that or another court.";
and

(b) in subsection (2), by inserting next after paragraph (a)
the following

"(aa) persons who are detained at a police station,
correctional institution or other similar place;".

Inserts new section 5A to 5D
4 The principal Act is amended by inserting next after section 5
the following new sections

"Minister may give policy directions
5A The Minister may, after consultation with the
Committee, give such general directions as to the policy to be
followed by the Committee in the performance of its functions as
appear to the Minister to be necessary in the public interest, and
the Committee shall give effect to any such directions.

Staff of the Committee, etc.
5B (1) The staff of the Committee shall consist of a Senior
Legal Aid Counsel and such other Legal Aid Counsel and other
staff as the Committee considers necessary for the proper
administration of this Act.

(2) The staff of the Committee shall be public officers.

(3) The Senior Legal Aid Counsel appointed prior to the
coming into operation of this Act shall, on such coming into
operation, be deemed to have been appointed pursuant to this
section and everything lawfully done by the Senior Legal Aid
Counsel prior to such coming into operation shall be deemed to
have been done pursuant to a power given by this Act.

Administration of Act
5C The Senior Legal Aid Counsel shall be responsible for the
day to day administration of this Act and, subject to the

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directions of the Committee, shall be responsible for carrying out
the functions of the Committee.

Protection of staff
5D (1) No action or suit, prosecution or other proceedings
shall be instituted against a Legal Aid Counsel personally in
respect of any act or omission bona fide done or made by him in
execution or intended execution of any function imposed upon
the Committee or the Senior Legal Aid Counsel under this Act.

(2) Where a Legal Aid Counsel is exempt from liability
for an act or omission by reason only of subsection (1), the
Committee shall be liable for the act or omission to the extent
that it would be if the Legal Aid Counsel were the Committee's
servant or agent.".

Amends section 6 of principal Act
5 Section 6 of the principal Act is amended—

(a) by renumbering the section as subsection (1);

(b) by deleting paragraph (c) and substituting the
following—

"(c) subject to subsection (2), any other expenditure
authorized by the Senior Legal Aid Counsel for the
purposes of this Act;"; and

(c) by inserting next after subsection (1) the following—

" (2) The Senior Legal Aid Counsel shall not,
without the prior written approval of the Committee,
authorize any expenditure in excess of $5,000.00.".

Amends section 7 of principal Act
6 Section 7 of the principal Act is amended

(a) in subsections (1)(a) and (2)(aa), by inserting next after
the words "duty counsel" wherever they appear, the
words "or Legal Aid Counsel";

(b) by inserting next after sub-section (2) the following new
subsection

" (2A) As soon as a decision has been made to
detain a person at a police station, correctional
institution or other similar place the person in charge of
the police station, correctional institution or other
similar place, as the case may be, shall inform the first
mentioned person that he has a right to obtain advice

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and representation for the purpose of any interview from
the duty counsel or Legal Aid Counsel.".

Amends section 8 of principal Act
7 Section 8 of the principal Act is amended

(a) by deleting subsection (1) and substituting the
following

" (1) Any person who wishes to be granted legal
aid shall apply in writing to the Senior Legal Aid Counsel
who shall place the application before the Committee for
their consideration.".

Amends section 9 of principal Act
8 The principal Act is amended in section 9, by deleting from
paragraph (a) the words "the Director of Social Services" and substituting
the words "such Government Departments as the Committee considers
appropriate".

Amends section 10 of principal Act
9 Section 10 of the principal Act is amended

(a) in subsection (1) and the proviso thereto, by deleting the
figures "$12,000" and "$10,000" and substituting
therefor respectively the figures "$18,000" and
"$20,000";

(b) by deleting subsection (2) and substituting the
following

" (2) An applicant who

(a) is charged before a court with any offence
specified in the Second Schedule; or

(b) is a party to a criminal appeal before a court
in connection with any such charge and
satisfies the Committee that there are
reasonable grounds of appeal,

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.";

(c) in subsection (4) by deleting the word "Committee" where
it first occurs and substituting therefor the words "the
Senior Legal Aid Counsel,"; and

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(d) by inserting next after subsection (4) the following new
subsections

" (5) The Third Schedule shall govern the
calculation of the disposable income and disposable
capital of an assisted person and the assessment of the
amount of any contribution which he may be required to
pay under section 11 having regard to the amount so
calculated.

(6) The Minister may, acting with and in
accordance with the advice of the Committee by order
published in the Gazette add to, delete or otherwise vary
the Second Schedule.

(7) An order made under subsection (6) shall
be subject to the negative resolution procedure.".

Amends section 11 of principal Act
10 Section 11 of the principal Act is amended

(a) in subsection (1), by deleting the words "may require"
and substituting the words "shall require";

(b) in subsection (2), by deleting the figure "$5,000"
wherever it appears and substituting therefor in each
case the figure "$10,000"; and

(c) by inserting next after subsection (5) the following—

" (6) Notwithstanding the provisions of this
section, where in the circumstances of a particular case
the Committee is satisfied that it is appropriate in the
interest of justice so to do, the Committee may disregard
the disposable income of an assisted person.".

Repeals and replaces section 12 of principal Act
11 Section 12 of the principal Act is repealed and replaced by the
following

"Choice of counsel etc.
12 (1) Subject to subsections (2) to (4), whenever a
certificate is granted by the Committee it shall be the duty of the
Senior Legal Aid Counsel to assign to the assisted person a
counsel—

(a) whose name appears upon a roster
maintained under section 5; and

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(b) who is the assisted person's counsel of
choice.

(2) Subsection (1) does not apply where the counsel
chosen by the assisted person—

(a) refuses to be bound by the Schedule of Fees
annexed to the Legal Aid (Scale of Fees)
Regulations 1980; or

(b) for any other reason refuses the assignment.

(3) Where—

(a) an assisted person, for whatever reason, does
not exercise his right to choose a counsel
under subsection (1); or

(b) pursuant to subsection (2), subsection (1)
does not apply,

the Senior Legal Aid Counsel shall assign to the assisted
person a counsel whose name appears upon the roster
referred to in subsection (1)(a).

(4) For the purpose of subsection (3), the Senior Legal
Aid Counsel shall have regard to the principles that

(a) the assignment of counsel should be
appropriate to the nature of the proceedings
for which the certificate is granted; and

(b) so far as is practicable, the volume of legal
aid work should be evenly distributed
between counsel listed on the appropriate
roster.".

Amends section 13 of principal Act
12 Section 13 of the principal Act is amended

(a) in subsection (1), by deleting the words "There shall be
paid" and substituting the words "Subject to the
provisions of this section, there shall be paid";

(b) by inserting next after subsection (3) the follow new
subsection

"(3A) Where assigned counsel submits a
series of bills then, each bill in the series shall

(a) clearly indicate that it is one of a series;

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(b) be accompanied by a report on the status of
the proceedings as of the date of the bill;

(c) indicate the estimated time for completion of
the proceedings;

(d) be in respect of an amount of $2,000 or
more; and

(e) in the case of the final bill, indicate that fact
and be accompanied by a report on the
outcome of the proceedings which report
shall indicate whether the assisted person
has recovered any capital money or
property.";

(c) by inserting next after subsection (4) the following new
subsections

" (4A) Except as provided in subsection (4), all
costs awarded in favour of an assisted person shall be
paid to the Accountant-General.

(4B) Costs referred to in subsection (4A) may be
recovered by the Attorney-General in any court of
competent jurisdiction as a debt due to the Accountant-
General."; and

(d) by deleting subsection (6) and substituting the
following

" (6) The Committee shall tax every bill of costs
submitted under this section

(a) in accordance with regulations made under
section 16; and

(b) on the basis of what is necessary and
reasonable having regard to the difficulty of
the case and, in particular

(i) in the case of criminal proceedings, the
gravity of the charge; and

(ii) in the case of civil proceedings, the
amount at issue.

(7) For the purpose of taxing a bill of costs the
Committee may, with the prior written approval of the
Chief Justice, review the records of a court in order to
verify any matter relevant to such taxation.".

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Amends section 13A of principal Act
13 Section 13A of the principal Act is amended

(a) in subsection (1), by deleting the words "in excess of the
amount of $5,000" and "to a value exceeding that
amount"; and

(b) by deleting subsection (3).

Amends section 15 of principal Act
14 Section 15 of the principal Act is amended by deleting "$1,000"
and substituting "$1,500."

Amends section 16 of principal Act
15 Section 16 of the principal Act is amended in subsection (2)

(a) by deleting the full stop at the end of paragraph (f) and
substituting a semi colon; and

(b) by inserting next after paragraph (f) the following new
paragraphs

"(g) as to the cases in respect of which set fees are
payable; and

(h) as to the cases in respect of which fees and the
amount of such fees may be agreed in advance; and

(i) for the recovery of costs from a successful party; and

(c) in subsection (3), by deleting the word "negative" and
substituting the word "affirmative".

Amends Third Schedule to principal Act
16 The Third Schedule to the principal Act is amended—

(a) in paragraph 1 by deleting Part A and Part B of the Table
thereto and substituting the Table set out in the
Schedule hereto;

(b) in paragraph 3—

(i) in sub-paragraph (a), by deleting the word "his";

(ii) by deleting sub-paragraph (b) and substituting the
following—

"(b) occupational tools";

(iii) in sub-paragraph (c) by deleting the word "his"; and

(iv) by deleting sub-paragraph (d) and substituting the
following—

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"(d) any owner-occupied single unit dwelling with an
annual rental value not exceeding $24,000 as
assessed under the Land Valuation and Tax Act
1967."

"SCHEDULE (section 16)
TABLE

Part A - Income

Disposable Income Bracket Income Portion

Less than $10,000 Nil

$10,000 or more but less than $12,500 $150

$12,500 or more but less than $15,000 $375

$15,000 or more but less than $18,000 $750

Part B - Capital

Disposable Capital Bracket Capital Portion

Less than $10,000 Nil

$10,000 or more but less than $15,000 25% of the amount by which
the disposable capital
exceeds $10,000

$15,000 or more but less than $20,000 50% of the amount by which
the disposable capital
exceeds $10,000

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