Mr. Se?n Guerin:

Senator Ward addressed some of the questions to us and we hope we can assist. We provided a written submission, which addresses some of the issues in a little bit of detail. One of the questions we touched on was raised, which was how the Legal Aid Board might be expected to achieve greater efficiencies. It is an issue we raised in earlier submissions to the Department on the general scheme of the Bill and we do not know the answer to that question. The existing system appears to operate efficiently. I think there was some suggestion regarding the issue that justifies the move of the system to the Legal Aid Board as a requirement for improvement audit practices. There does not seem to be any reason improved audit practice within the existing arrangement would not meet the necessity for the problem. We say that in a context where there are significant concerns that are obviously outside the scope of the present Bill. Regarding the functioning of the legal aid scheme generally, on the civil side as opposed to non-criminal matters – family matters and so forth – there are concerns about the efficiency of the operation of that system. Those concerns simply do not exist in respect of the functioning of the criminal legal aid system at the minute. Therefore, there does not appear to be a good reason to move them in that direction.

On the question of the harm-led definition, in particular for the extension of the right to legal aid to victims of crime, we made a suggestion in our written submission that it might be that the threshold be set at serious offences against the person. That means not every criminal offence and not every criminal trial, but a case where there is a victim who has suffered violence to the person, whether sexual or otherwise, and who has a real interest in how the particular case unfolds – a personal interest quite apart from the public interest in the prosecution of offences. That is just one suggestion and one way in which the harm-led definition could be applied.

On how a means test is to operate, that is a question the committee might consider addressing to the Department. We have a concern about the use of the specified threshold measure in head 14(4) of the Bill. There is a concern that by fixing limits in terms of proportion of income and so forth, you fail to take account of either factors particular to the case, such as the length, complexity or difficulty of it, or factors particular to the person in terms of his or her commitments, educating children, family members with special needs or where there are caring obligations. The idea that a specified threshold for income would be fixed beyond which either the entitlement to legal aid would be removed or restricted in some way gives rise to the real possibility of injustice in individual cases.

I echo the point Mr. Donagh made in response to Deputy Costello on the removal of the right to counsel. We mentioned in our submissions that the rules in England and Wales operate on the basis that the interest of justice test will always be satisfied in cases of prosecution on indictment. We urge the same view on the committee and the Oireachtas generally.