Jim Daly (Cork South West, Fine Gael) | Oireachtas source

I thank the Senator for raising this issue. I acknowledge at the outset he is doing his job as a public representative who is raising the air of disquiet that surrounds the issue.I regret that the Minister for Justice and Equality cannot be present. As the Senator will appreciate, the Cabinet is sitting this morning. It was supposed to sit yesterday but was unable to do so. The Minister of State at the Department of Justice and Equality was not available this morning either. I ask the Senator to accept my apologies and to rest assured that I will convey his legitimate concerns directly to the Minister. I am sure he will receive any further follow-up that may arise.

I have been asked by the Minister, Deputy Flanagan, to respond to this matter as he is unable to attend this morning. As the Senator may be aware, under the Criminal Justice (Legal Aid) Act 1962 and a series of regulations made thereunder, 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. 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. Under the 1962 Act, the courts, through the Judiciary, are responsible for the granting of legal aid. The Minister has no function in these matters as they are determined by the Judiciary, which is independent in the exercise of its functions.

The provision of an effective criminal legal aid service to persons facing serious charges that could result in the loss of their liberty is of fundamental importance. The Supreme Court ruling in the case of State (Healy) v. Donoghue 1976, I.R. 325, effectively determined that the right to criminal legal aid is, in circumstances which are quite wide in practice, a constitutional right. An accused person who faces serious changes and who cannot afford to pay for legal representation has a constitutional right to legal aid. In addition, Article 6(3)(c) of the European Convention on Human Rights provides that every person charged with a criminal offence is entitled to defend themselves in person or through legal assistance of their choosing or, if they have insufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The Minister's Department is preparing a draft general scheme of the criminal justice (legal aid) Bill 2017. The key purpose of the draft legislation, subject to Government approval, is to transfer the administration of the criminal legal aid scheme from the Department to the Legal Aid Board, with the purpose of ensuring that best practice, financial management and control are exercised and to give effect to Government programme commitments on criminal legal aid. The following commitments contained in the programme for Government will be addressed in the general scheme, namely, to transfer responsibility for the operation of criminal legal aid from the Department to the Legal Aid Board, to introduce a contribution system, to introduce more rigorous and effective means testing and to provide for increased sanctions for false declarations.