The Department of Justice’s practice of paying separate criminal legal aid fees to different solicitors in the same law firms for charges listed together against a single accused “appears to be without legal basis”, a High Court judge has said.
That is because payments are made without the department requiring evidence the certificates were made under the relevant legal aid regulation, Judge Siobhán Phelan said.
She made the comments when dismissing test challenges by two clients of law firm Aonghus McCarthy & Co Solicitors over refusals by two District Court judges to assign different solicitors in the firm to each charge against them that was listed together. Had the assignments been made, the firm would get more payments.
Any burden on the exchequer arising from multiple certificates issuing in the name of separate solicitors in the same firm results from the department’s practice, the judge said.
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Although the department’s practice was not challenged in these proceedings, it may be relevant to liability for the legal costs, she indicated.
At least nine similar challenges were on hold pending the test cases taken against the Director of Public Prosecutions, with the Minister for Justice a notice party.
The core legal issue was whether a District Court judge, having decided an accused person is eligible for legal aid, may properly refuse to assign separate solicitors from the same firm on distinct charges listed together before the court.
Criminal legal aid is governed by the Criminal Justice Legal Aid Act 1962 and various regulations. Regulation 7.4 provides, if certificates are granted for cases concerning one accused which are heard together or in quick succession, only one certificate is typically paid unless the court directs otherwise for “good reason”.
One test case was by a woman charged with two separate burglary offences at different premises in Dún Laoghaire on October 12th 2021. Her counsel asked for legal aid certificates to be assigned to two solicitors in the McCarthy firm but Judge Ann Watkin granted one certificate only, in McCarthy’s name.
Both charges were dealt with summarily on the same day in September 2023, one was struck out and the other was dealt with under the Probation Act. The accused was represented by counsel, instructed by McCarthy.
In that case, no formal application was made for an order under regulation 7.4, under which the District Court could consider whether to direct the matters be treated separately for legal aid purposes, Phelan said.
The second case concerned a man who appeared before Judge Andrew Cody at Portlaoise District Court in November 2022 on four separate charges – two of theft, one of taking a vehicle without the owner’s consent and one of possession of cannabis herb. The alleged offences occurred on three separate dates and at three different locations.
McCarthy appeared in respect of all matters and applied for certificates assigning himself on one charge and to have other solicitors in his firm assigned to the others.
Cody, noting McCarthy was the only solicitor from his firm present in court, granted a certificate in his name. Having noted the four charges related to three separate dates and involved two different prosecuting gardaí, Cody indicated he had no difficulty applying regulation 7.4 in respect of three charges.
McCarthy later received three legal aid certificates assigning him in respect of all matters.
Phelan said, irrespective of the reasons and legal basis for the practice adopted by the department, both District Court judges and the legal practitioners knew the assignment of different solicitors from the same firm in respect of different matters heard together or in immediate succession is treated for payment purposes as though a direction had been made under regulation 7.4 for “good reason”.
No application was made in either case for a direction under regulation 7.4, she said. It was “particularly telling” nothing was advanced to explain why either client sought the nomination of different solicitors within the same firm in respect of distinct charges.
Neither case, the judge said, involved an accused person being denied legal aid for representation by a solicitor of their choice.
She was satisfied the applications to assign different solicitors from the same firm were made to secure separate payments without a direction under regulation 7.4, “contrary to legislative intention”.
It is apparent there is a history of applications of this nature being presented before the District Court by this solicitor, “and perhaps others too”, she said.
She was satisfied both refusals were done to uphold and give effect to the rule in regulation 7.4 and “to uphold the rule of law” by ensuring legal aid payments were made in accordance with the statutory scheme.
The effect of the refusals was “merely to ensure that the law was properly applied”, the judge held.
