High Court to rule on solicitor’s challenge to new criminal aid fees

The High Court is due to give judgment on Tuesday on the legality of the controversial new criminal legal aid payment model for the District Courts.

Judge Mary Rose Gearty will rule on an attempt by Dublin criminal defence solicitor John Quinn to quash the statutory instrument underpinning the scheme.

Introduced on July 1^st last, the scheme sparked a withdrawal of services by many criminal defence solicitors. While some have since returned to work, the action, particularly in Dublin, continues to seriously affect the work of the criminal courts.

Following a meeting last week between Minister for Justice Jim O’Callaghan and the Law Society, both sides agreed on a process of what the minister described as “short, focused” engagement aimed at resolving the dispute.

That began last Friday and continued on Monday, with more engagement expected during this week, irrespective of the outcome of the High Court ruling.

The Quinn challenge was heard by Gearty over two days last July. When reserving judgment on July 31st, she urged the sides to engage with a view to resolving the case. Her judgment was initially due on October 13th but was deferred to November 3rd, with the sides again urged to engage in the interim.

In the judicial review proceedings, Quinn argued the new criminal legal aid regulations are “arbitrary, capricious and unjust”.

Among his claims, it was submitted that his constitutional right to earn a living depends on the legal aid scheme and the regulations are unconstitutional because they provide a single fixed fee regardless of the number of alleged offences or court appearances required.

It was also argued the regulations are incompatible with the Criminal Justice (Legal Aid) Act 1962.

The Law Society, a notice party, argued Quinn’s case is well founded. Lawyers for O’Callaghan opposed the challenge and submitted the regulations were within the Minister’s powers.

The scheme provides for one legal-fee payment of €520 irrespective of case complexity or the number of appearances involved. Under the old scheme, solicitors were paid per appearance.

O’Callaghan said the new scheme will mean efficiencies, reduce adjournments, and end “abuses” under the old scheme, particularly relating to payments sought on the basis of multiple legal aid certificates.

He referenced a Department of Justice internal review noting the State spend on criminal legal aid in the District Courts rose from about €19 million in 2015 to an estimated €41 million last year.

Criminal defence solicitors involved in the services withdrawal say many delays are outside their control, including due to awaiting DPP directions, books of evidence, or psychiatric reports, and a further legal aid certificate should be available after 10 appearances.

In relation to clients facing several separate and distinct prosecutions, they want the scheme to permit certificates for separate cases committed on separate dates, with the number of certificates capped at five per client, per court, per day.