Criminal Legal Aid

Legal Aid & Constitution

Ireland does not have an advanced system of free legal aid.  The system of civil legal aid is patchy and much less extensive than that which exists in other jurisdictions.

Criminal legal aid is available as a Constitutional right in many criminal law proceedings.  This applies where there is a risk of imprisonment. It covers trials on indictment on the Circuit Court and the Central Criminal Court.  It also covers many cases where crimes are prosecuted summarily in the District Court.

The Constitution requires that justice be administered in public.  There is an implied constitutional right of access to the courts.  There is an expressed right of access where a person’s liberty is in question.

Restrictions on suing the state and state immunities were found unconstitutional on the basis that they are contrary to the individual’s right to call the state to account in the courts.

On a number of occasions, the courts have decided that undue restrictions, including unreasonable limitation periods, were invalid in that they unreasonably restricted the constitutional right of access. Where there is an objective need, it is valid for the State to place time limits and obligations such as to show that there is a substantial case to answer, at an early stage of the proceedings.

Representation

A person may represent himself in legal proceedings.  Only a qualified solicitor or barrister may represent another in legal proceedings for reward.

Certain non-contentious legal work is reserved exclusively for solicitors.  No person other than a qualified solicitor with a current valid practising certificate may undertake such work for reward.

The court rules allow family members to represent a party and, in some cases, by discretion, will allow others to do so. The courts will be more flexible and allow litigants in person a certain latitude. They do not apply the same rigour to the rules of pleading cases and evidence.

In the case of certain litigants who are vulnerable, the court may appoint a guardian to undertake proceedings on their behalf. Guardian ad litem may be appointed to represent the interests of a child.  This may typically be a parent but in some cases where for example proceedings are against a parent in the context of a road traffic accident, another party may be appointed.

In some cases, the courts may allow a friend to assist in litigation.  The friend may not in general speak on behalf of the party. The so-called McKenzie friend may attend and take notes, quietly make suggestions and give advice.  Although he is not entitled to appear as an advocate, exceptionally, such party may be permitted to address the court.  The court retains the power to hear any person in the interests of doing justice.

Legal Aid Act

The Criminal Justice (Legal Aid) Act, 1962 provides for legal aid in criminal cases where the serious nature of the offence or exceptional circumstances make it essential in the interests of justice that the accused should have legal aid in the preparation and conduct of his case.  Legal aid is available where the defendant’s means are insufficient to enable him to secure legal aid from his own resources.  The matter is primarily within the control of the judge.

The courts have held that a person has a constitutional right to legal representation in serious criminal cases.  This right applies where there is a possibility of imprisonment.  A person may waive their right for legal representation, but the court should be satisfied that this is done knowingly and that the consequences are understood.

The Criminal Justice (Legal Aid) Act, 1962 provides for legal aid by way of a solicitor and/or counsel in criminal cases.  Solicitors and barristers who are members of the legal aid panel may be assigned by the court to represent the accused.  In practice the accused is usually entitled to choose his solicitor under the scheme. Criminal legal aid fee rates are set by regulations made from time to time under the act.  Fees are charged per case.

Certificates

The Criminal Justice Legal Aid Act provides for various types of certificate.  There is a certificate for legal aid in respect to each of the following

• District Court proceedings
• Trial on indictment, i.e., Circuit Court or Central Criminal Court
• Appeal
• Case stated
• Supreme Court.

In each case, the basis of issue of the certificate is that the means of the person charged are insufficient to enable him to obtain legal aid and that by reason of the gravity of the charge or exceptional circumstances, it is essential in the interest of justice that he has legal aid in the preparation or conduct of his defence.

District Court

Legal aid is effectively available in the District Court in summary cases where there is a risk of imprisonment. Legal aid is available in relation to the initial stages of a prosecution on indictment in the District Court. In the case of a trial on indictment, if an application is made based on the above criteria, the accused may be certified for free legal aid for the preparation and conduct of his defence at trial and have a solicitor and counsel assigned to him.

Where a person is convicted of an offence and a legal aid certificate has been granted by the District Court,  the judge before whom he was tried, may issue a certificate that he should be entitled to free legal aid for the preparation and conduct of an appeal against conviction or penalty. When the appeal lies to the Court of Criminal Appeal a solicitor and barrister are usually assigned to him.

A criminal legal aid appeal certificate may be granted if application is made, if the accused does not have the means sufficient to enable him to obtain legal aid and the conviction is either for murder or it appears at a District Court or the court in which he was tried as a result of the serious nature of the offence and or of exceptional circumstances that it is essential in the interests of justice that the person should have legal aid in the appeal.

A person convicted of an offence and refused a legal aid certificate may apply to the court for a certificate to which an appeal from the conviction lies, by letter addressed to the registrar or to the court itself.  The person applying for criminal legal aid must provide a statement as to their means in the format prescribed. The appeal court acts on an equivalent basis.

A case stated is a reference of a point of law from the District or Circuit Court to the High Court or Supreme Court.  A legal aid certificate may be granted where the above criteria apply, where it is essential in the interests of justice.  It relates to the reference of a point of law to the higher courts.

The Minister makes regulations from time to time setting out the form, certificates, manner of assignment of solicitor and counsel and the rates and payment of fees, costs and expenses.  It is an offence knowingly to make a false statement or representation in relation to the means of applying for a legal aid certificate.

Legal aid certificates are also available in relation to other forms of proceedings including, in relation to proceedings involving monitoring orders under the 2007 Act.

The regulations prescribe the details of each aspect of costs and fees.  They prescribe the remuneration, which depends on several factors.  In the District Court, the fees depend to some extent on the number of cases undertaken by the solicitor on a particular day.  Once the number of cases has been reached, the rate per case decreases.  There are different rates depending on whether a matter is on its first or subsequent date of hearings.  Reduced rates also apply where the solicitor is assigned to several defendants in one case.

There are specified rates for bail applications and essential prison visits.

An application may be made for legal aid in person by a solicitor or by letter to the County Registrar.

Attorney General Scheme

The Attorney General scheme provides legal representation for certain types of cases not covered by civil legal aid or criminal legal aid.  The scheme is administered by the Legal Aid Board.  There is also a Garda station legal aid scheme and a criminal assets bureau, ad hoc legal aid scheme.

Following the revised enforcement court order procedure, legal aid is involved in civil proceedings for the enforcement of judgements, where there is a risk of imprisonment.

The Attorney General scheme applies to certain criminal matters outside the scope of criminal and civil legal aid scheme.  It covers bail, extradition, applications for review of legality or detention and some judicial reviews.  It applies where the High Court certifies that legal representation is required.

The scheme has been proposed to be put on a statutory basis, but this has not yet occurred.

Detention for Questioning

The courts have held that a person in detention has a right of access to a solicitor during questioning.  An Garda Síochána must make reasonable efforts to secure a solicitor.  Under the Detention Regulations, a person must be informed of the right to a solicitor.

There is a non-statutory scheme of payment of solicitors in relation to legal advice for persons in police custody.  This operates as a scheme only at present.