Pa Daly (Kerry, Sinn Fein) | Oireachtas source

I welcome the witnesses. I should declare that I have worked as a solicitor for over 20 years. During the course of those 20 years, I have benefited from the criminal legal aid scheme. I think it is fundamentally important that not only should defendants get a fair a speedy trial, but they are entitled to have a robust defence. Deputy Costello previously made the point about the three-strikes-and-you-are-out rule and those kind of arguments that are made. There are some very welcome aspects to this general scheme , including, for example, head 11 on the duty of the court to inform an individual that he or she has an entitlement to legal aid. It is important that that is offered. Over the years, I have seen judges who have refused or delayed legal aid because they did not like the look of the defendant. Perhaps they did not like the look of the solicitor or had a personal thing against them. There could be all sorts of reasons for it. As Senator Ward said, it is all very well to be complaining about money being spent on the criminal legal aid system, but if your brother or a family member is charged with something like careless driving causing death or a newer offence which goes to the Circuit Court and faces very serious consequences, it is very important that the person involved has the right to legal aid.

That leads me on to a concern I have about head 29. I would be interested to hear what some of the witnesses think about the fees for engaging expert witnesses and the possibility of a judge not having a role in that. For example, if you are charged with a serious offence, you may very well need to engage a whole load of different witnesses in order to defend that properly. It is important that a judge can listen to submissions that are made and make a decision. I certainly never saw, over the years, any judge granting the involvement of an expert witness without considering it appropriate in the circumstances. Many a time I saw in the courts individuals who clearly urgently needed a psychiatric assessment in cases where I would have had doubts as to whether they could properly give instructions and whether they could deal with the case. It might have been in their interest to deal with the case quickly but at the same time, you have to decide for yourself whether that person has the capacity to assess the evidence, take advice and be given advice. The Legal Aid Board would need huge resources for fees for the engagement of expert witnesses under head 29, and also in a situation where a person is appealing a decision to grant legal aid.

The delays seen in family law cases on local legal aid boards, where people sometimes have to wait for months, would ring alarm bells for me. Any extra layer of administration is not good, especially when we are dealing with defendants, in all types of cases, who may lack capacity. They may be illiterate or have severe language and communication difficulties.

Turning to head 47, one of the witnesses spoke about expanding the types of cases where legal advice would be granted. Certainly, a complainant in a section 4 assault case should have the same entitlement to legal advice as somebody who is the victim of a sexual assault. I think that is a given and I agree there should not be a means test for that. What problems do Ms Counihan and Dr. Saidléar see with the advice currently given to complainants by the prosecution team in such cases? More generally, is there potential for any conflict between barristers and solicitors who are dealing with the prosecution and a legal adviser who may have been involved before a complaint was even made? Do the defence solicitor witnesses have any comment to make about someone receiving legal advice before a complaint has been made, or do they not see any difficulty in that regard? Overall, are there concerns about any additional delays or administrative burden being put onto the system?

I should add I welcome head 45 in respect of advice given in Garda stations. I have found that to be quite bureaucratic over the years.