New criminal legal aid scheme ‘grossly unfair’ and ‘illogical’, High Court rules

The High Court has upheld key aspects of a solicitor’s challenge over the controversial new criminal legal aid payment model for the District Courts.

In a significant judgment on Tuesday, Judge Mary Rose Gearty described some provisions of the model as being outside the powers of the Minister, “grossly unfair” and “demonstrably illogical”.

A key provision of the new scheme, because it allows the court no discretion for legal aid certificates to reflect a multiplicity of very complex cases, is in excess of the powers of the Minister for Justice in that it is outside the objectives of the Criminal Legal Aid Act “which require that the State provide a logical system”, she said.

A regulation providing that certification is dictated by the date upon which cases are listed is “demonstrably illogical” because it removes flexibility in respect of certification an creates the potential for abuse, Gearty said.

The judge will make final orders and declarations arising from her judgment after she has heard submissions from the sides concerning her findings.

Dublin criminal defence solicitor John Quinn had, in judicial review proceedings, sought to quash the statutory instrument underpinning the scheme introduced on July 1st last.

The new scheme sparked a withdrawal of services by many criminal defence solicitors around the country. While some have since returned to work, the withdrawal, particularly in Dublin, continues to have a serious adverse impact on 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 engagement began last Friday, resumed on Monday and is expected to continue during this week, irrespective of the outcome of the High Court ruling.

The Quinn challenge was initiated in early July and was heard by Gearty over two days later that month.

When she reserved judgment on July 31st, Gearty 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 his judicial review proceedings, Quinn argued the new criminal legal aid regulations are “arbitrary, capricious and unjust”.

Among his claims, Quinn argued the regulations are incompatible with the Criminal Justice (Legal Aid) Act 1962 which, it was submitted, provides for legal aid certificates to be granted for individual offences rather than multiple offences under a single payment.

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 new scheme provides for one flat legal fee payment of €520 irrespective of the complexity of a case or the number of appearances involved. Under the old scheme, solicitors were paid €240 for a first appearance and about €60 for each subsequent appearance.

When introducing the scheme, O’Callaghan said it would mean efficiencies, reduce the number of adjournments, and end “abuses” under the old scheme, particularly relating to payments sought on foot 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 withdrawal of services say many delays are outside their control, including due to awaiting directions from the Director of Public Prosecutions (DPP), books of evidence, or psychiatric and probation 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. They say this would directly address the concerns about the issuing of multiple certificates under the old scheme.