Pádraig Langsch

The minister for justice’s proposed reform of criminal legal aid in the District Court risks causing serious and lasting damage to the administration of justice, particularly for the most vulnerable people in the criminal justice system.

At the heart of the proposal is a move to a flat fee for District Court criminal cases. In effect, this mirrors the model that already exists in the District Court family law legal aid system, a scheme that is widely criticised as dysfunctional and financially unsustainable by almost all family law practitioners. In many parts of the country, it is already increasingly difficult, and in some places near impossible, to secure family law legal aid representation in the District Court. 

The minister’s proposal would import the same structural problems we see in family courts into the criminal justice system — with one key difference: in a criminal case, you can lose your liberty.

The minister’s own paper acknowledges that “those who are granted criminal legal aid are a noticeably vulnerable or disadvantaged group, which inevitably leads to a higher number of adjournments”. That is indeed an unsurprising observation by the minister.

Vulnerable defendants are more likely to have complex and chaotic personal circumstances such as homelessness, addiction, mental health difficulties, literacy issues, unstable contact details, and periods in treatment or custody. They are also more likely to accumulate a significant number of bench warrants. Those factors are far less common in privately paid cases, which explains the minister’s observations.

Yet under a flat fee, these are precisely the cases that become economically irrational to take from the solicitor’s point of view. Why would a solicitor accept a legal aid client with a significant history of bench warrants, or someone with homelessness and serious mental health issues, for a single fixed payment regardless of how many court appearances are required? It makes no commercial sense.

The predictable consequence is that vulnerable people will struggle to obtain representation at all, and even where they do, their choice of solicitor will be significantly reduced.

A flat fee rewards speed, not correctness. It incentivises early disposal over careful preparation of cases. The flat fee will inevitably encourage guilty pleas and discourage contested hearings, especially in disclosure-heavy cases that require more time and preparation. It will also disproportionately affect non-nationals, where cases may need to be adjourned repeatedly to ensure an interpreter is available and instructions can be taken properly. These defendants may find it harder to secure a solicitor of their choice, because their cases are more time consuming through no fault of their own.

Consider this example: a foreign national with a history of bench warrants and a psychiatric difficulty, whose case requires an interpreter, possibly medical reports and multiple adjournments. Which solicitor will realistically take such a case for a flat fee of €455?

The proposed system is also absurd. A person pleading guilty on the first day to a minor public order matter with no previous convictions would attract the same legal aid payment as a fully contested burglary prosecution involving a defendant with multiple previous convictions, extensive disclosure, CCTV and a possible custodial sentence.

Treating such radically different cases as financially identical is simply irrational. More importantly, it creates a systemic “plead guilty” gravitational pull, especially in borderline cases where the proper course should be to test the evidence. That is precisely the sort of incentive structure that risks undermining the effectiveness of legal representation and will inevitably lead to miscarriages of justice.

I further argue that this inherent irrationality exposes the scheme to a challenge under Article 6 of the European Convention on Human Rights, which requires the right to a fair trial and effective legal assistance in practice, not merely on paper.

The minister believes that the new system will save valuable court time. But is that so? Instead, we may see more unrepresented defendants, particularly among vulnerable groups. Not only it will not save court time, it will waste it. Unrepresented parties slow proceedings, create additional adjournments, and increase pressure on judges, gardaí and court staff.

The proposal also creates specific practical problems that remain unanswered. The assignment of counsel becomes a financial penalty for solicitors under the proposed split fee (€600 shared between solicitor and counsel equally). It is unclear how this would operate where counsel is instructed for one day only, for example to cover a mention date or a contested bail application. The scheme risks discouraging the use of counsel even where it is necessary in the interests of justice. This will significantly harm the junior Bar.

Equally, the proposal raises serious issues around changing legal representation. If a defendant changes solicitor mid-case, who receives the flat fee? How is it divided? What happens where a person has a history of changing solicitors due to vulnerability, instability, or breakdown of trust? The likely outcome is that such defendants will find it even harder to secure representation, because taking over a case part way through becomes financially unattractive.

If the minister proceeds with this reform, the price will be paid not by the system, but by the people least able to bear it.

Pádraig Langsch, a solicitor and former barrister, is a partner in Limerick firm Langsch & Cunnane Solicitors LLP.