High Court rejection of Minister’s criminal legal aid model may push forward a deal

The High Court’s emphatic upholding of a challenge by Dublin solicitor John Quinn to a new criminal legal aid payment model for the District Courts could incentivise agreement on an amended scheme.

Fundamental elements of the new model, operational since July 1st, were found by Judge Mary Rose Gearty to be “grossly unfair”, “illogical” and outside the powers of the minister, Jim O’Callaghan, under the Criminal Legal Aid Act. Among her findings is that the model means solicitors are expected to work for nothing in some situations. The matter will return to court next week.

Labour Party leader Ivana Bacik said the judgment was “deeply embarrassing” for O’Callaghan and confirmed his “Rambo approach” to reform had failed.

Before the minister introduced the €520 one-flat-fee payment model, irrespective of the number of appearances or case complexity, criminal defence solicitors were up in arms about it. They claimed it did not take into account how District Courts work and their work in complex cases, including those that involve children and people with addiction and mental health issues.

Their complaints, and calls for what they and the Law Society described as “meaningful” engagement, went largely unheeded and the new model came into effect.

Enraged by what they perceived as a ‘take it or leave it’ attitude from the minister, many solicitors embarked on a withdrawal of services from July 1st, seriously disrupting the criminal courts.

As the new legal year opened in early October, the Chief Justice, Donal O’Donnell, said he and the judiciary were very concerned about the situation and hoped for a resolution.

Further infuriated by O’Callaghan’s rejection of the Law Society’s call for independent mediation – for reasons including he was awaiting Gearty’s judgment – the solicitors escalated their action in recent weeks to affect custody cases. Senior judges strongly criticised that escalation, warning solicitors they require court permission to cease representing clients in custody.

O’Callaghan’s claim the solicitors “deliberately” affected rape cases inflamed the situation, with solicitors pointing out their action has affected every type of case and there was no ‘targeting’. Members of the Oireachtas justice committee also voiced dismay over the minister’s claim and urged meaningful steps to sort out the dispute.

[ Legal aid dispute may spread from criminal courts to family and domestic violence casesOpens in new window ]

All of that appeared to contribute to last week’s agreement between the minister and Law Society on a process of engagement.

O’Callaghan may save some face from the fact that, before Gearty gave judgment on Tuesday, he agreed to embark from Friday last on a “short, focused” engagement process aimed at resolving the dispute. That process is likely to be even more focused given Gearty’s conclusions.

While both sides remain tight-lipped on the content and progress of their discussions, both do agree on the need for reform of criminal legal aid. O’Callaghan’s motivation for the new scheme included concerns about “abuses” of the old system and the increased criminal legal aid District Court spend from about €19m in 2015 to an estimated €41m last year.

Gearty’s decision, ongoing court disruption, political pressure on the Minister, and mounting financial pressure on many solicitors after four months of services withdrawal, are all incentives to reach a mutually acceptable solution. That, in line with the High Court findings, must involve changes “made lawfully and with proper process”, the Society noted in its statement welcoming Gearty’s judgment.