Plans to make defendants contribute towards their own legal aid fees ‘should be approached with caution’

Paul McGarry SC

The proposal is included in a series of reports suggesting the Government reduce legal aid payments and Garda overtime rates to ease pressure on the justice system.

The publications from the Irish Government Economic Evaluation Service (IGEES) said defendant contributions could represent a significant income stream but warned this may be cancelled by the costs of administering the new system.

In 2017 the State spent €58 million on legal aid payments, two million less than its peak in 2009.

Under the current regime, defendants are means-tested and if they do not qualify for legal aid they must satisfy the full costs of their defence. If they do qualify, their fees are paid in full.

The proposed system, outlined in the 2018 Spending Review of the Criminal Legal Aid Scheme, would bring in a sliding scale for legal aid contributions, which would see those with sufficient assets contributing towards their fees, as decided by the courts.

Paul McGarry SC, Chairman, Council of The Bar of Ireland said: “We welcome the 2018 Spending Review’s recognition that our cost-effective and robust criminal legal aid system facilitates a high standard but low-cost representation of defendants through skilled advocates engaged by the State”.

“However, the report’s consideration of the introduction of financial thresholds for eligibility to access legal aid would need to be approached with caution.

“While in the absence of financial information it is not possible to provide any meaningful estimate as to the savings that might be achieved on foot of the introduction of means testing, it is likely that the costs of administering such a scheme would very significantly outweigh the reduction in cost”.

He added: “Furthermore, it could have the significant damaging side-effect of delaying the criminal proceedings themselves while the ‘means-testing’ procedure is carried out, with knock-on delays affecting witnesses, victims and the effective administration of justice.

“Restrictions on access to legal aid could have the unintended consequences of defendants opting to represent themselves which frequently results in lengthy and difficult proceedings, ultimately increasing costs to the State and causing consequent distress to witnesses and victims of crime.”

Mr Mc Garry suggested that “An alternative option is to ensure clearer guidelines for judges as to when legal aid should be granted along with a strengthening of the requirement for accused persons to provide relevant information for such applications, which would probably achieve the requisite reduction without any increase in the cost of administration to the State.”