Dinny McGinley (Donegal South West, Fine Gael) | Oireachtas source

The Minister for Justice and Equality, Deputy Shatter, is unable to be present today and has asked me to convey his thanks to the Deputy for raising this matter which is important to the proper functioning of the criminal justice system.

At the outset it is necessary to state that, as everyone would agree, the criminal legal aid system is a fundamental principle of the criminal justice system. A person who faces criminal charges is entitled to a fair trial and the presumption of innocence. If that person cannot afford to pay for legal representation, he or she has a right to legal aid in order to uphold that principle. An unreasonable block on legal aid could give an accused person an avenue to prevent his or her trial proceeding or give a convicted person an avenue for appeal. The efficient operation of the criminal justice system could be compromised in such circumstances.

The criminal legal aid scheme is based on the Criminal Justice (Legal Aid) Act 1962 and a series of regulations made thereunder. The courts have clarified a number of aspects of the right to criminal legal aid in various judgments since then. For example, the Supreme Court ruling in the case of The State (Healy) v. Donoghue from 1976 effectively determined that the right to criminal legal aid is, in circumstances which are quite wide in practice, a constitutional right. The court stated it was mandatory that every criminal trial shall be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the accused person must be afforded every opportunity to defend himself and afforded the opportunity of being represented. The court, referring to the situation of a person who was facing a serious criminal charge but who because of a lack of means could not provide a lawyer for his own defence, concluded that the person must be afforded the opportunity of being represented and that this opportunity must be provided by the State.

Also, Article 6(3)(c) of the European Convention on Human Rights states that everyone charged with a criminal offence has the right to defend himself or herself in person or through legal assistance of his or her own choosing or, if he or she does not have sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The Deputy will appreciate that the criminal legal aid scheme must operate with due regard to these rights. The Minister's overriding concern is to ensure that no risk arises in the prosecution of persons charged with criminal offences before the courts.

Under the Criminal Justice (Legal Aid) Act 1962, free legal aid may be granted by the court in certain circumstances, for the defence of any person of insufficient means in criminal proceedings. An applicant for legal aid must establish to the satisfaction of the court that his or her means are insufficient to enable him or her to pay for legal aid and the court must also be satisfied that by reason of the "gravity of the charge" or "exceptional circumstances", it is essential in the interests of justice that the applicant should have legal aid. It is important to note that an applicant's previous convictions are not a criterion under the Act as to whether or not legal aid ought to be granted.

The nature of the criminal legal aid scheme is that it is driven by the incidence of crime, detection rates and prosecution of cases through the courts system. This renders it a difficult area in which to anticipate and control costs. However, a number of measures have been taken since the Minister took office, including cuts to fees and expenses during 2011. Following these measures, total expenditure under the criminal legal aid scheme for 2012 came to €50.5 million, a reduction of 10% over 2011. This reduction in the annual expenditure is the largest ever recorded and represents a fall of approximately €10 million, or 16%, over the peak recorded in 2009.

The Minister will also be considering, in the context of legislation currently being drafted in his Department, measures to update and strengthen the system of granting legal aid. The draft of the new legal aid Bill includes provisions to transfer responsibility for the administration of the scheme to the Legal Aid Board. This would be in keeping with the approach internationally where one State agency deals with all aspects of criminal legal aid.

The Bill is also likely to include provisions to, inter alia, regulate better the taking of statements of means, increase the sanction for false declarations, and allow the board to verify the means of applicants and to prosecute cases of abuse. Provision to give power to the board to recover the cost of criminal legal aid or to make application to the court to revoke a criminal legal aid certificate are also under consideration.

These matters require careful consideration and will be examined closely in the development of the Bill so as to protect the rights of accused persons and to protect taxpayers' money. The Minister hopes that it will be possible to publish the Bill during the course of this year.

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