Wednesday, 20 February 2013
Topical Issue Debate
Criminal Legal Aid
I thank the Ceann Comhairle for selecting this issue. I wish to address the criminal legal aid system currently in place. The first thing I want to do is state that I am not trying to deny any citizen the right to a fair trial. I also acknowledge that in 2012, there was a reduction of 10% in the amount spent on free criminal legal aid. I recognise that solicitors must be paid their fees to defend those who face the courts on criminal charges.
In 2012, €50 million was spent on free criminal legal aid. In my constituency of Mayo, €289,000 was spent on it. The public are infuriated when they see stories of career criminals repeatedly claiming free legal aid. I saw in a local newspaper recently a report of someone who had claimed free legal aid for the 12th time in 12 months. Another person was claiming free legal aid for the 100th time.
There seem to be no limits or sanctions and certainly no consideration given by the criminals that there are any consequences for wreaking havoc on the State. In previous replies I was told by the Minister there were no data available from the Courts Service to quantify the number of times people have claimed free criminal legal aid. I suggest this must be addressed quickly because I have no doubt the public would be shocked to hear the figures of a small cohort of people who are claiming free criminal legal aid time and again.
It suggests that, obviously, under the Constitution, they are entitled to it and if they have means they will not get it, but I would like to know whether the means testing for free criminal legal aid is as thorough and rigorous as that for other entitlements of law-abiding citizens who, the odd time they may be court for speeding fines or whatever, must pay their own legal fees. This matter needs to be addressed quickly.
I reiterate that everyone is entitled to a fair trial, but this matter needs to be looked at and addressed, for once and for all. At a time, given the economic climate, when people are finding it difficult to abide by the law and pay their dues, they see this happening.
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.
I fully respect the need for a fair trial and the efforts the Minister has made to reduce the costs, but the message we are sending out is that all the rights are with the criminals. What about the victims? It is as simple and straightforward as that.
I was told recently by a member of the Garda Síochána that the head of a household which was getting €41,000 in social welfare got involved in selling drugs or whatever and was granted free legal aid automatically. I would ask that the matter be looked at so that where a person on social welfare is convicted of a crime, over a period there is some clawback from his or her social welfare. The criminals must be seen to take some pain for what they are inflicting on law-abiding citizens.
In researching this, I looked at other jurisdictions. In the United States, there is a three strike rule, where if somebody is convicted within a certain length of time of three similar serious offences, the sentence imposed is significantly increased. Could some model like that be used for those convicted repeatedly over a long period and being granted free legal aid? There must be some payback over a period to the State.
I am sure the Deputy will agree that the reduction in the costs of the scheme for 2012 is a welcome development and the Minister can assure him that his Department continues to closely monitor expenditure in this area.
In addition, as I said, the Department is developing a new legal aid Bill which will look at fundamental changes to the way the scheme is administered. These would be the first real substantial legislative changes to a scheme which dates back to the 1960s. It is important that any changes are appropriate and that they give due regard to the clear rulings of the courts since that time about the right to criminal legal aid.
The development of the Bill will allow for further consideration to be given to improving certain aspects of the scheme. Whatever draft legislation emerges must give due regard to the rights of accused persons and of the need to ensure that criminal trials can proceed without being compromised. It would be an important consideration in developing any changes to the criminal legal aid scheme that due regard is given to a person's entitlement to the presumption of innocence and the right to defend himself or herself. Any revision to the criminal legal aid system simply could not introduce arbitrary or unfair obstacles in the way of accused persons obtaining legal representation, if necessary at the State's expense, in order to defend themselves in a court of law.
Needless to say, the Deputy's remarks and proposals will be brought to the attention of the Minister and the Department officials.