Professor Marie Keenan

Given the current dispute between the minister for justice, Jim O’Callaghan and defence solicitors on criminal legal aid and the current narrative of “evidenced informed policy” I feel ethically obliged to highlight what we found in research commissioned by the Department of Justice on a Review of the Processing of Sexual Offences in Ireland: Stakeholder Perspectives (2024). Here I build on a previous article published by The Irish Examiner on 23 September.

My colleagues and I (criminologist, Associate Professor Deirdre Healy, UCD; barrister, Gemma McLoughlin–Burke BL and psychiatrist, Dr Kate Keenan), conducted and analysed 73 in-depth interviews with 78 stakeholders across the criminal justice system. We were asked to try to understand the causes of delay and to examine the feasibility of a range of improvements in Ireland, based on international best practice. The interviews did not include accused or convicted persons, or complainants and victims. We asked, but were advised the perspectives of these individuals would form the basis of a further study.

Early in the research, it became apparent that something about the manner in which criminal legal aid is administered may be having an effect on the approach legal practitioners take to case preparation for trial, and this was having an impact on delays.

Given the focus of the research, we investigated the matter further. As well as putting questions on criminal legal aid to interviewees we conducted additional specialist interviews with four individuals with expertise in the administration and workings of the criminal legal aid scheme.

Across all cohorts of interviewees with knowledge of criminal legal aid we found a desire for change in the structure of legal aid payments and for restoration of the fees that had been slashed during the 2008 economic recession. The latter has been restored since our report was published. However the motivation for reform of the scheme differed significantly: legal professionals felt they were being underpaid for significant amounts of their work; the Department of Justice felt there were abuses in the system that had to be addressed. Court registrars saw both – underpayment as well as some abuses.

It seems the minister of justice’s approach to reform is premised on his concern about abuses. The voice of criminal legal professionals for reforms that reflect the actual amount of work done, is less evident in the minister’s strategy. This may underpin the current impasse.

We found that criminal legal aid rates and the structure of the fees were a real concern for defence solicitors. They pointed to the need for serious overhaul of the scheme but also to concerns about the absence of political will to take on the task of improving legal aid fees. “I don’t think I’ve ever seen a politician come out and say pay legal aid solicitors more, and we all know the reasons for that …it’s not popular, and yet vitally important …The model at the moment is not conducive towards paying people the right amount to do the work … in order to protect the rights of any defendant … we’re talking about the bedrock of a working [criminal justice] system” [S3].

Defence solicitors were aware that the structure of the payments system was not fully understood by the general public who had a perception that legal practitioners were all earning high salaries from the criminal legal aid Scheme.

At the time of writing we were struck by the hope and good faith of defence solicitors that the reviews of the criminal legal aid scheme might lead to improvements in pay for them for their work. The response of the minister of state at the Department of Justice, James Brown, to the question raised by Deputy Pa Daly TD on civil legal aid and criminal legal aid makes for interesting reading, in light of the current dispute (Dáil Question, May 25th 2023: https://www.oireachtas.ie/en/debates/question/2023-05-25/3/).

Defence solicitors described in detail the level of disclosure which was being reviewed in relation to certain types of criminal cases and emphasised how they currently receive no additional fee for examining this vastly increased number of disclosure documents. An interviewee described reviewing 40,000 pages of disclosure as part of a €1,200 brief fee. Another spoke of examining thousands of pages of disclosure and also attending lengthy voluntary cautioned interviews in Garda stations, for which solicitors are not paid, unless specifically sanctioned by the Department of Justice, which is rare. Hand-over of cases/ files was also identified as a problem. Giving an example, one person explained: “He did an excellent job up to this point and he will essentially get paid nothing for going through a couple of thousand pages of documentation” [S5].

Barristers views aligned largely with the defence solicitors; the system was in need of reform. The manner in which criminal legal aid payments are structured and paid may in fact be effectively encouraging barristers not to read the material in full, or to have a passing interest in the material, or be dependent on what other people are telling them about what is in the material until close to the trial date. A brief fee was only paid on the first day of a trial. Nobody wanted to put time into cases they may not get to present because of uncertainty across the system, and therefore receive no payment.

Court registrars saw some abuses of the system, and they also saw the need for reform. They wondered if the problems in how the criminal legal aid payments are structured encourages attempts to get around some of the structural inadequacies.

When we turned attention to the Department of Justice who administer the criminal legal aid scheme we found gaps in understanding in what is actually involved in mounting a legal defence in criminal cases. For example, there were differences in how the Department of Justice and legal professionals viewed ‘the exceptional payment’ for disclosure work. The exceptional payment can be claimed if the volume of disclosure reaches a threshold beyond what was the norm in the past, adding 100 or more additional hours to case preparation.

The specialist interviewees estimated that the majority of sexual offence cases would fall into 30/40/50 hours of reading beyond what was the average prior to the disclosure ‘explosion’. Thus, one of the problems with the current payment structure, including the exceptional disclosure payment, is that it does not address the actual reality. At one end of the spectrum there is the new payment involving an additional 100 or more hours of case preparation, and at the other end there is the rare case of ‘normal’ disclosure; payment for which is included as part of the brief fee. Since the disclosure explosion, the vast majority of cases fall somewhere along this spectrum, requiring 30-50 hours of additional reading and associated work, for which no payment is currently provided.

While legal professionals saw the threshold for the exceptional payment as too high, the Department of Justice saw it through a different lens. The department explained that it’s only “the big cases” that will be paid and “we haven’t been inundated with it either, so I think you know they realise we’re not going to pay for like a couple of hours here and there”. [LA2]. The reference to “a couple of hours here and there” was in contrast to the more usual 30/40/50 hours of reading beyond what was the average prior to the disclosure explosion suggested by legal practitioners.

A further issue was referenced during specialist interviews. This related to problems in dealing with civil servants rather than lawyers in the Department of Justice when negotiating criminal legal aid fees. The concerns of the civil servants administering the scheme could be identified as largely administrative and procedural, such as why are there so many adjournments and whose responsibility it is to read disclosure materials and why should more than one legal practitioner be paid to read the same material? As LA2 pointed out: “I was tired of solicitors doing one thing, barristers doing another, nobody seemed to talk to anybody, it seemed to be just a free-for-all and we’re not paying for disclosure that has been reviewed multiples of times. I can appreciate how senior counsel might need to you… but he’s not going to sit down and review all of it. He’s going to get the baby junior to do all of that.” The same official acknowledged: “Not having a legal background sometimes I get confused about what some of the terms mean. I’m trying to get on top of it but some of these fees is the big issue for us to try and sort out … Fees is one of the big projects we are trying to tackle.” [LA2]

Some legal practitioners felt the officials in the Department of Justice had a limited understanding of how legal teams actually work. Their way of working was challenging for officials who were of the view that if instructing solicitors reviewed the material then perhaps there is no need for counsel to do so too.

It was hard to determine whether it was lack of understanding, lack of trust or legitimate concerns for abuses in the system that underpinned the disposition of the Department of Justice towards legal professionals.

To my mind evidence must be part of the current discussion. The Department of Justice’s concern about abuses of the system cannot be the only motivation for reform. The concerns of legal professionals regarding the inadequacy of the payments must be an equal part of the conversation. If the minister has evidence about bad actors/ some firms abusing the system, as is suggested, I’m wondering why he does not deal with them directly? Surely mechanisms to audit their work or establish a criminal legal aid equivalent of HIQA is not beyond the capacity of the Department of Justice?

Taking a hammer to crack a nut makes no sense whatsoever when there is so much at stake for the administration of justice, particularly understanding the vulnerability of many of the accused persons and children coming before the courts. Decreasing the fees of legal professionals rather than increasing them for this important work makes absolutely no sense, based on the qualitative evidence presented in my research, while at the same time working to address any abuses where they exist. Driving legal professionals out of criminal work with the implications for all citizens who depend on their expertise appears to me to be one worryingly logical outcome if the department continues down its current path.