Regulation restricting legal aid payments struck down

The High Court has struck down a ministerial regulation under which a solicitor would get no additional payment if he represented more than one of three co-accused men in a single Circuit Court trial.

All three men wanted the same solicitor to represent them, but he agreed to represent just one because the relevant regulation provided he would get no extra payment for representing any others.

Ms Justice Marie Baker said the practical and legal effect of Article 3.1.g of the Criminal Justice (Legal Aid) (Amendment) Regulations 1978 denies an accused the right to legal aid in respect of a solicitor of their choice when that solicitor represents a co-accused.

This amounted to deprivation of a “core” right under the Constitution and Criminal Justice Legal Aid Act 1962 because it did not allow for payment of fees of the solicitor chosen by the applicants, she held.

She declared Article 3.1.g was made outside the power of the Minister for Justice and failed to respect the right of the men to be “fully and effectively” afforded the benefit of legal aid for the conduct of the trial.

The effect and meaning of Article 3.1.g means no fee at all is payable to a solicitor for representing more than one co-accused at the same Circuit Court criminal trial, she said.

Section 10 of the legal aid Act, providing for delegation of the power of fixing rates payable to solicitor and counsel, did not empower the Minister to make regulations removing entirely the right to a fee by fixing the scale at zero, she held.

The rights engaged in this case are the applicants’ right to legal aid, and to choose their legal representation, and it was not about the solicitor’s right to be paid through the legal aid scheme for an identified client, she stressed.

No ‘rational’ basis

Different arrangements apply to fees in the District Court where a reduced fee is payable for a second or more accused, she noted. For reasons “unclear” to her, the Circuit Court provision was different and allowed for no payment, and no “rational” basis for that distinction was identified.

The case arose after solicitor John Shanley was asked to represent the accused men – a father and two sons – in a trial before Galway Circuit Criminal Court.

As a result of Article 3.1.g, Mr Shanley would receive just one legal aid payment for representing all three. He agreed to represent one of the sons.

The father and second son then took High Court proceedings challenging the relevant provisions.

In her judgment this week, Ms Justice Baker noted the three face charges including criminal damage and having an article contrary to the Firearms and Offensive Weapons Act, and the proposed trial was a unitary one because of an alleged element of common design.

All three got legal aid certificates and all wanted to instruct Mr Shanley. There was no "practical or legal" reason why he could not represent them, but the Legal Aid Board informed him, as all three matters would be heard together, he would be paid for representing one accused only.