Criminal Aid Issues

Criminal Legal Aid

The Criminal Justice Legal Aid Act 1962 provides for grant of free legal aid in the case of more serious charges and offences where the applicant satisfies the court that he or she has insufficient means to defend himself.  The accused has a right to be informed of his right to legal aid in a more serious case.

Legal aid grants entitlement to a solicitor.  In the case of very serious offences where a barrister customarily appears, there may be an entitlement to one or two counsel in the preparation or conduct of his defence or appeal.

The courts grant legal aid.  Application is made in writing to the County Registrar or by the accused or his legal representatives directly to the court.

Statutory Criminal legal aid is not generally available in certain areas, .  However, there is are separate ad hoc schemes that may apply The person who does not qualify for criminal legal aid may qualify under one of the below-mentioned schemes or in another section.

There is no right to appeal against the refusal of a criminal legal aid certificate.  If, however, a defendant is sent forward for trial in the Circuit Court,  he may apply separately to that court.

Qualification

The applicant must satisfy the court this his  means are insufficient to enable him pay for legal aid himself.  There are no formal financial eligibility criteria and the court must consider the circumstances.  T

The court must be satisfied by reason of the gravity of the charge or exceptional circumstances that the interests of justice requires the applicant shall have legal aid.

The applicant for legal aid may be required to complete a statement of means. The Criminal Justice Legal Aid Act 1962 as amended provides for certificates.

It is an offence to make a false misleading statement or to conceal material facts in completing a statement of means or for the purpose of obtaining free legal aid.  It is subject to on summary conviction a fine and /or imprisonment of six months or both.  On conviction, the person may be ordered to repay criminal legal aid received.

The legal aid scheme is operated by the county registrar or court clerk. Criminal legal aid does not require a contribution on the part of the defendant.  This is in contrast with the position in respect of civil legal aid.

Certificates

A Criminal legal aid certificate only covers proceedings in the relevant  court.  If there is an appeal or further stage or sending forward, it is necessary to apply through the latter court for legal aid. The legislation provides that the judge or court may require a completed statement of means in accordance with regulations under the Act.

The Legislation provides respectively for legal aid certificates for the

• District Court,
• Trial on Indictment  (usually Circuit Court) or  Central Criminal Court
• Appeals
• Case stated and
• Supreme Court.

In each case the application is made to the respective court.

The Minister makes regulations in relation to the form of legal aid certs, the rates and scales of fees payable to solicitors and barristers and the manner in which justice and counsel are signed pursuant to the certificate.

Constitutional Rights

The Supreme Court held in the mid-1970s  that there is a Constitutional right to legal representation in some cases.  This is not the case with the bulk of summary offences which do not carry a significant risk of imprisonment. If a charge carries possible prison sentence, the judge is obliged to, under the above principles to inform the accused or he may be entitled to legal aid to conduct his defence.

The judge considers both the means of the defendant and the seriousness of the offence.  The judge must consider whether it is in the interest of justice that legal aid is granted in the preparation and conduct of the defence.

The court considers the possibility of imprisonment or a large fine. In highly exceptional circumstances legal aid may be granted even if the offence is not serious.  This may include where the person is ill, immature or mostly unstable, lacks formal education.

In many cases legal aid will be granted without completion of a formal means application.  In the case of younger persons, the court will look at the means of parents and guardians. If the applicant gives evidence as to his income or that he is in receipt of social welfare, this may suffice without further enquiry. Where a written statement is made, it must be filed with the  court registrar.

Assigning Solicitor

The judge assigns a solicitor from the legal aid panel.  If the applicant expresses a desire for a particular solicitor, the judge is likely to assign that solicitor if he or she is available.  However, there is no constitutional rights choose a particular solicitor or barrister. Correspondingly, there is no obligation on solicitors and barristers to accept a particular client.

In practice, courts rarely refuse to assign the requested solicitor.  If a judge refuses to assign, he must generally give a reason and request and refer to alternative nominations.

A Legal aid certificate covers costs of legal representation and expenses occurred in the preparation and conduct of the defence.  It may cover appeals or case stated.  It may cover fees of required experts including for example, engineers, doctors, psychiatrists and other experts.  They must be considered necessary by legal advisors.

Attorney General’s Scheme

The Attorney’ General Scheme is a non-statutory scheme administered by the Department of Justice and Equality.  It applies to the following classes of matter which are outside the criminal legal aid legislation. The scheme applies to High Court bail applications, judicial review proceedings and criminal matters where the person’s liberty is at stake, extradition and European arrest warrant matters, habeas corpus matters (High Court).

The scheme is broadly parallel to the legal scheme.  It is available where the person’s means are insufficient to obtain necessary legal representation.  The court must be satisfied, that it is necessary and proper that the solicitor and barrister be assigned to make the applications and submissions.

The application is made personally or through legal representation to the court.  It should be done at the start of proceedings.

CAB Scheme

The Department also operates a Criminal Assets Bureau scheme.  The Criminal Assets Bureau legislation is not strictly criminal.  However, it may involve loss of assets where persons cannot explain their origin.

Assistance is potentially available to persons who are defendants in proceedings brought by the Criminal Assets Bureau under the Proceeds of Crime Act or taxes or social welfare legislations.

The scheme also covers certain social welfare appeals to the Circuit Court, tax appeals to the Circuit Court and Criminal Asset Bureau applications by the DPP under Section 39 Criminal Justice Act.

The application is made to the court.

Garda Station Scheme

The Garda Station legal aid provides advice to persons detained in Garda stations who would qualify for legal aid under eligibility criteria.  It is administered by the Department of Justice and Equality.  The Legal Aid Board took over the scheme as of October 2011.

The scheme provides for payment for consultation with solicitors.  Where the person is entitled to consult a solicitor, the person’s means are insufficient to enable him to pay for consultation.

He is detained for the purpose of investigation under

• the Offences against the State Act
• Section 4 Criminal Justice Act
• Section 2 Criminal Justice Drug Trafficking Act
• Section 50 Criminal Justice Act 2007.  Certain other detainees are eligible on an equivalent basis.

The scheme extends to applications by the Garda to court to extend the period for detention of suspects under drug trafficking and offences against state legislation as well as Section 50 Criminal Justice Act 2007.

Persons detained under the scheme whose income is below €20,216 per annum (2012) or are in receipt of social welfare payments (both figure is gross) are eligible.  An application form in the prescribed format is made.  It is made by detainees. It may be made by the detainee’s solicitor.

The Legal Aid Board may investigate the personal circumstances of the applicant and the information provided.

The scheme limits the number of consultations for which the legal advisor may be paid.  Travelling expenses may be paid by reference to the distance from the solicitor’s office or based to the Garda station.

Up to three consultations are allowed under Section 4 of the Criminal Justice Act 1984.  Up to seven consultations, subject to a maximum of three in a day are allowed under Section 30.  Up to eleven consultations are allowed under the latter legislation.