“Romeo, Romeo, wherefore art thou Romeo?” declaims Judge Michele Finan after a defendant with that first name was called but did not appear.
“Story of my life,” the Dublin District Court judge quips as she adjourns Romeo’s case, which involves theft charges.
The District Courts deal annually with more than 350,000 cases, ranging from minor public order charges to rape and murder. They are the lowest courts in the Irish court system but considered the workhorse, given their workload.
Romeo’s case is among more than 200 in Finan’s busy remand and bail list over just one morning. Most defendants, being unemployed or on other welfare benefits, are eligible for legal aid.
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Bench warrants are issued for several defendants who fail to show up, requiring gardaí to locate and arrest them.
There are other reasons for cases being adjourned: the disclosure of CCTV footage or other material is required; parties are waiting for books of evidence to be served; the Director of Public Prosecutions (DPP) is considering adding or withdrawing charges; probation reports, community service or restorative justice reports are pending; or the judge wants to monitor engagement with addiction and other services. (Restorative justice is a voluntary process whereby a mediator brings victim and offender together to discuss the impact of the crime and the appropriate penalty.)
Finan moves efficiently through her long list.
She grants legal aid and sets a January 2027 hearing date for a man on drug charges after being told prosecution disclosure is awaited.
A bench warrant is issued for a woman who fails to appear on charges of theft and fraud, with the judge noting the defence solicitor is present.
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Disclosure and CCTV production is ordered, and legal aid is assigned, to a man facing theft and criminal damage charges.
Another man (29), with 109 previous convictions, had an “appalling” background and has been homeless for 11 years, his solicitor Yvonne Bambury says. Both parents were addicts, their son slept on the couches of friends, and left school after sixth class.
Bambury says she has spoken to him about engaging with probation services, but he wants “finality” on the public order charges against him. Finan puts the case back for a week for consideration of the offences and sentence.
Under the criminal legal aid system, a solicitor is paid €239.38 for a first appearance per accused and €59.86 for each subsequent appearance.
The average number of appearances is five, but some cases involve many more.
To say that solicitors are unhappy with the Minister for Justice’s plan to introduce a District Court ‘one flat fee’ legal aid payment of €455, irrespective of the number of appearances, is an understatement.
The plan follows a review by the Department of Justice of the criminal legal aid fee structure in the District Courts, based on the Courts Service’s data on about 350,000 cases in 2022 and 2023. The review found spending on criminal legal aid rose “dramatically” from €19 million in 2015 to €37 million in 2024, and raised concerns that provisions for payments on foot of multiple certificates for one accused were open to misuse.
The department cited a case where more than 360 criminal legal aid certificates were granted for one individual who was facing charges of brothel keeping, theft and sexual assault. The estimated costs for one appearance in respect of 63 certificates on the brothel-keeping charges was €14,000, it said.
Based on sliding payment scales, the fee structure means criminal legal aid cases take longer and cost more, incentivises solicitors to seek multiple hearings, and “risks undermining public confidence in the value of legal aid”, the department said.
Criminal defence solicitor Tony Collier, a partner at Ferry’s Solicitors, says the proposal for the ‘one flat fee’ showed a lack of knowledge of how the criminal legal aid system works in the District Courts.
The system is examined through “one particular lens” – saving costs – and the fee proposal will adversely impact the ability of accused people to receive representation on a par with the prosecution, he says.
“An accused person and their defence team should not be at a disadvantage to the prosecution due to a disparity between the resources available to the State and those available to those accused of crimes,” he says.
Along with many solicitors, Collier favours reform of the criminal legal aid system, noting it dates back more than 40 years.
“Everyone wants to improve and enhance the system, but that is not what the review is about,” he says.
Many clients have complex difficulties, some are on multiple theft charges over trying to feed their addictions and are often homeless, he says. This leads to many not turning up for court, meaning adjournments and sometimes multiple court dates.
Solicitors understand their clients’ difficulties and need for more assistance, he says.
“That is all done after court, so the notion our work stops after we stand up in court is erroneous; our work continues through the day and evening. We also have an on-call service,” he says.
A straightforward criminal legal aid case such as a public order case where the State has all its evidence on hand could be disposed of in one or two appearances, he says.
More complex cases involve delays which are mostly out of the control of defence solicitors. When a bench warrant issues, the client is arrested and new charges preferred.
Cases where a client admits guilt may also face delays, extending to 12 weeks and longer, if a judge requires a probation, community service or restorative justice report.
When directions from the DPP are required, that can mean adjournments and delays sometimes extending more than a year. The State, Collier notes, is granted 42 days, which can be extended, to serve books of evidence for more serious indictable offences.
Amanda Connolly, a partner at Connolly Finan Fleming solicitors, says the one flat fee will mean a “mass exodus” of solicitors from criminal legal aid, as happened when a similar single payment was introduced for family law cases.
The plan will mean “a yellowpack, plead out, next case” approach, inducing accused people to plead guilty – to the detriment of their rehabilitation prospects – she says. “That does not bode well for anyone.”
Such an approach will “reward lawyers who just want to be assigned to cases and do no follow-up work” such as trawling through CCTV, seeking reports and treatment for clients, and dealing with their anxious relatives.
Many “extremely vulnerable” clients should not be in prison and are only there because there are no beds in psychiatric facilities, she adds.
Of 10 clients remanded in custody whom she appeared for in Clover Hill court in Dublin on the day she spoke to The Irish Times, Connolly says none were finalised within four appearances and all 10 remands were at the behest of the DPP.
Her firm is among many which have stopped representing legally aided clients in family law cases because it was “not financially viable” under the ‘one flat payment’ scheme, she says.
In relation to the department’s concerns some lawyers are abusing the criminal legal aid system, particularly regarding claims under multiple legal aid certificates, Connolly says: “No one is standing over abuses. If there is abuse, it’s up to the department to go after that, not punish all to fix a problem only caused by one or two.”
Eoghan O’Sullivan, a partner at Powderly Solicitors, says criminal legal aid work is “not an area where one size fits all”, and the ‘one flat fee’ plan is “simplistic”.
“There’s a world of difference between the theft of a Creme Egg and mortgage fraud. I have a lot of clients with addiction and mental health difficulties and are homeless; they are hard to fit into a structure where things get done quickly. They live chaotic lives,” he says.
He is in court most days, after which he returns to the office for work such as reviewing disclosure material and CCTV – and dealing with calls and emails. Evening work includes visiting clients in prison and attending Garda stations for emergencies.
He is assigned by Finan earlier that day to represent an unemployed man who pleaded guilty on a public order charge.
It is a “relatively straightforward” case still involving two appearances because the judge requires a report on the man’s engagement with community services.
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Such cases are “simple” compared with others involving huge amounts of discovery and CCTV, O’Sullivan says.
“Criminal law is ever evolving and a lot more complex; cybercrime is up a lot. The DPP and gardaí have special units for this – we don’t.”
He cites a case, for which he would be paid €100 under the new plan, which was eventually sent forward to the Circuit Court after 11 adjournments, mostly because DPP directions were awaited, and for service of a book of evidence.
The Law Society, in a statement to The Irish Times, says it is “astonishing” the department is seeking “to impose” a payment model “widely recognised as having failed in family law”.
The Legal Aid Board had referred to “immense challenges” in accessing solicitors to work under that payment model, it said.
Introducing one flat fee in criminal legal aid “imposes an indeterminate amount of work while cutting the fees provided” and will lead to “an exodus of solicitors working in this area, as it has done in family law, making it more difficult to secure legal representation”.
The proposal represents a “unilateral” cut to criminal legal aid and would break the commitment in the Programme for Government to “fully restore” criminal legal aid payments, cut in 2009 under emergency legislation, the representative body for solicitors says.
“By expressly cutting the payments and seeking to limit the involvement of legal representatives, the one flat fee will undermine an accused’s right to a fair trial without any acknowledgment of the complexity, personal circumstances or length of an individual case.”
